Liable if you do, liable if you don’t: Dutch and European banks straddling opposing laws. Which will they obey—Dutch or American?

Plus Ultra | Banking & Criminal Law | September 30, 2026

In its escalation with America over the International Criminal Court (“ICC”) the Netherlands now finds itself in an unprecedented situation (see Plus Ultra’s article of July 20, 2026). A Dutch state broadcaster calls the European Union’s blocking statute (“statute”) a “nuclear option” in its defense against U.S. sanctions laws. Is that description correct? A “nuclear option” as to who? After all, the Netherlands doesn’t know what its effects are or whether it even works.

The statute forbids European companies to comply with U.S. sanctions law, but failure to comply could result in liability in the U.S. If that causes them harm they could receive compensation—in theory, that is. The statute could thus put European companies in an untenable situation “because whose laws must they obey?”, the broadcaster asks. “It’s not that simple in practice, experts say”, the broadcaster adds, but it doesn’t provide any explanation from those experts.

Earlier, in 2025, one Dutch expert who works for the ICC did say in the context of its problems that “under European law, the Netherlands could give banks guarantees of compensation against any claims.” This compensation theory seems to offer protection in European Union (“E.U.”), but doesn’t offer any protection for the banks’ interests (branches and activities) in the U.S. The Netherlands doesn’t know what the theory’s effects are or whether it even works. The statute, the broadcaster concludes, “would be mostly a forceful political signal.” Keep that in mind.

Elsewhere in the world they already know that anti-sanctions laws (such as the E.U.’s Regulation 2271/96) are basically futile, just ask Venezuela which tried to protect itself against European sanctions, which the E.U. has refused to lift even after the earthquakes of 2026. The E.U. law to combat economic coercion (Regulation 2023/2675) is bureaucratic, slow, and has never been used before. This means Netherlands banks with U.S. interests face many risks.

These may be unchartered waters for the Netherlands but familiar territory for America, including with precedent offering insight and indications.

That precedent takes us back to 2013, when the U.S. Internal Revenue Service (“IRS”) and Department of Justice (“DOJ”) had a special voluntary-disclosure program for Swiss financial institutions. If they had reason to believe that they had committed tax crimes in connection with U.S.-related accounts, they could report themselves to the authorities to resolve potential criminal liabilities in the U.S. Although breach of bank secrecy was a criminal offense under Swiss law, that didn’t stop 84 Swiss financial institutions from turning themselves in. By 2016 the program had generated the fisc over USD 1.37 billion.

All those financial institutions had to choose between complying with either Swiss law or U.S. law, which were diametrically opposed to one another. Compliance with the Swiss bank secrecy law meant no sharing of customer data with the IRS or DOJ, thereby violating U.S. law and incurring liability thereunder. Compliance with U.S. law meant sharing customer data, thereby violating Swiss law and incurring liability thereunder. That was an easy pick.

On the one hand, you have the European authorities who tolerate (see drug policy), fail to take action, or simply shut down, such as the Disciplinary Board for Dutch banks in 2026 for lack of cases. On the other hand, you have U.S. authorities who do take action. Although at times European authorities do take action, often it’s sufficiently lenient to factor in at the time of commission of the crime.

Importantly, the Swiss financial institutions were eyewitnesses to U.S. prosecution of Swiss global banks. In 2009, UBS paid USD 780 million in fines and had to disclose over 4000 account holders to the authorities as part of its deferred prosecution agreement. DOJ charged multiple bankers and Americans involved in the alleged tax evasion.

In 2013, Wegelin & Co. (“Wegelin”) pleaded guilty to conspiring to evade taxes on approximately USD 1.5 billion. The bank tried to capture former UBS clients after news came out about DOJ’s investigation of UBS. Wegelin was convicted to pay a total of approximately USD 74 million. DOJ charged multiple bankers. In America this was the first criminal prosecution, guilty plea, and conviction ever of a foreign bank. Wegelin had no branches in America. In 2013, after pleading guilty, Switzerland’s oldest bank came to an end.

In 2014, Credit Suisse pleaded guilty to conspiracy to aid and assist tax evasion, paying USD 2.6 billion. DOJ reported that the bank had entered a plea agreement, 8 of its bankers were charged, 2 of which had already pleaded guilty. In 2026, the Netherlands DOJ seemed to have piggybacked on all the information that came out of the U.S.’s prosecution of Credit Suisse, imposing a criminal fine of EUR 5 million.

In the end, the Swiss statutory bank secrecy that was claimed to be hermetically sealed like a bank vault, turned out to be easy to open with the crowbar of U.S. criminal charges.

Remember the Dutch broadcaster claimed the European statute would be mostly a forceful political signal? Well, that’s an important distinction between the American precedent and the Netherlands’ current situation. The difference between the Netherlands and the ICC now and Switzerland and its financial institutions at the time was that back then cooperation between the U.S. and Swiss authorities investigating tax crimes was more collaborative. It was less political—and as a result, less problematic—than the current Dutch ICC escalation. The Netherlands itself is talking about using its alleged “nuclear option”—that means it playing hardball.

Hard was the hit BNP Paribas (“BNP”) took in 2014 when it pleaded guilty and paid a total of approximately USD 8.9 billion for violating U.S. sanctions laws after refusing to cooperate with DOJ. France’s president seems to have asked the U.S. president for a reduction of the penalties but to no avail. Although this penalty might seem stiff, it complies with the U.S. Constitution nonetheless.

Nowadays the fines aren’t that high but not that low either, because in 2025 Credit Suisse pleaded guilty to tax crimes and paid a criminal fine of USD 510,608,909. The point, however, is that if BNP’s prosecution was not a political matter, can you imagine what an enforcement action against a Netherlands bank would look like when it becomes a political tit for tat in the escalation over the ICC.

The 3 largest Dutch banks all have a crime record in America. Their run-ins were no fun and they and the Dutch media remained very quiet about it afterwards. Silence doesn’t mean it didn’t happen. Recidivism can be used as a justification for imposing harsher punishment. In 2010, ABN Amro Bank paid USD 500 million for violating U.S. money laundering and sanctions laws. In 2012, ING Bank paid USD 619 million—at the time a record fine—for egregious violations of U.S. money laundering and sanctions laws involving over USD 2 billion. Although the Dutch state broadcaster puts all the blame on ING’s Curaçao subsidiary, DOJ’s documents clearly show the Netherlands headquarter’s involvement in the crimes and attempts to quash any internal opposition from staff with measures. In 2013, Rabobank pleaded guilty to manipulating a benchmark interest rate and paid USD 325 million. In 2018, Rabobank pleaded guilty to money laundering charges and paid USD 368,701,259. DOJ also successfully prosecuted a banker.

We won’t discuss regulatory enforcement actions here, but those can be equally forceful, such as the fine of USD 475 million for Rabobank in 2013.

Since 2025 enforcing sanctions laws is one of the top priorities of DOJ’s policy on prosecuting corporate crimes. They dedicate many resources to it, both human and financial, so that shows its importance.

So how would the E.U. compensation theory work? Would the Netherlands or any other E.U. country really make the French bank whole on those USD 8.9 billion? What if 84 financial institutions are involved, as was the case in Switzerland? Is such compensation realistic? And what if the guarantee of compensation is challenged in court before payout? Don’t listen to what is promised in theory, look at what they do in reality.

Even if the Netherlands or E.U. were to create some form of compensation, that would not protect financial institutions against the consequences of their violations in America. Those consequences can have ramifications in their home country, as in Wegelin’s case. More importantly, they run the risk of having U.S. regulators revoke their licenses (banking, insurance, etc.) as a result of criminal prosecution and guilty pleas. In America that would be their financial death sentence.

Would Dutch banks want to have yet another run-in with the law in America for violating sanctions laws in connection with the ICC, but this time around with the hardball-political charge of the escalation? Just recidivism alone could be used as a justification for imposing harsher punishment.

For the Netherlands and Dutch companies it’s not all about the money. Sooner or later, however, they’ll be faced with the question whether their investment in the ICC is worth it for the Netherlands in terms of risk and return. The American Servicemembers’ Protection Act (informally and derisively known as the “Hague Invasion Act”) vests the U.S. president with authority to take any measure under the statute. That means with respect to the ICC that none of the doubts and legal uncertainty exist that people had in America about U.S. military actions in the Caribbean Sea against boats as part of alleged drug enforcement operations. Military intervention with respect to the ICC has been provided for comprehensively by law since 2002.

For financial institutions it is all about the money. So that means it’s a cost-benefit analysis. They won’t sacrifice a market like the U.S. altruistically and risk incurring corporate and individual liability for an investment of the Netherlands. Hence, when it comes to deciding which laws to break, it’s an easy pick. Besides, it’s not so much about the laws—any country has laws—but it’s about enforcing them. And if one thing is clear about Netherlands and Europe, they’re not about enforcing laws but about tolerating violations. So, who would the banks choose: a heavily armed, seasoned special tactical unit or a guard dog with neither teeth nor experience? You tell us.

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