Developments in UE export controls. Jasper Helder, Baker & McKenzie Amsterdam 9 November 2012

Transcription

1 Developments in UE export controls Jasper Helder, Baker & McKenzie Amsterdam 9 November 2012

2 How are EU Export Controls regulated? International EU National (EU Member State)

3 International 2009 Baker & McKenzie 3

4 The International Structure Wassenaar Arrangement (dual use items, conventional arms/munitions) Australia Group (chemicals, biological agents) NSG and Zangger (nuclear material) MTCR (missiles and related technology)

5 EU 2009 Baker & McKenzie 5

6 Dual Use 2009 Baker & McKenzie 6

7 Introduction EU Dual Use Regulation: Regulation 428/2009 (as amended) Annexes I (EU Control List) and IV (extract from Annex I of sensitive items) Common EU rules, 27 different flavors Enforcement and penalties dealt with on national (EU Member State MS ) level Possible to extend license obligation on national level 7

8 EU Dual Use Control List EU control list (over 200 pages of technical specifications) goods, software and technology Category 0 Nuclear materials, facilities and equipment Category 1 Materials, chemicals, micro-organisms and toxins Category 2 Materials processing Category 3 Electronics Category 4 Computers Category 5 Telecommunications and information security Category 6 Sensors and lasers Category 7 Navigation and avionics Category 8 Marine Category 9 Propulsion systems, aerospace, space vehicles and related equipment

9 EU Dual Use Control List Subcategories: A (systems, equipment and components) B (test, inspection and production equipment) C (materials) D (software) E (technology)

10 Export of Dual Use Items In general, only exports of dual use items outside EU require a license (some limited exceptions) These are inter alia: Annex IV (most sensitive items) which also require intra-eu license If EU MS has implemented national legislation imposing a license reuqirement for indirect export License may be required for Annex I items delivered within EU if ultimately intended for WMD end use outside EU Catch all may be imposed

11 Export of Dual Use Items Applies to tangible exports (shipment, hand carry, ) of goods, software and technology and intangible transmissions of software or technology by electronic media, overseas access to s and intranets, fax or telephone Certain controls on items simply passing through the territory of the EU (transit rules) or for brokering services (even if related to products located outside of EU) No re-export controls and no deemed export rules like in US

12 EU Export Control Developments Control list is updated periodically: latest amendment in May 2012 Often takes a while for international developments to be implemented on EU level Other countries may implement developments sooner which could lead to discrepancies between EU and other country s export control rules (export of product from other country not controlled, whilst export of product from EU still requires a license) Countries like US have imposed additional controls on the basis of anti-terrorism legislation (the 99x numbers)

13 EU Export Control Developments Commission Green Paper EU consultation with a view to improving the current system Comments by parties concerned have been submitted to EU Intention to reduce controls through move to more risk-based approach More harmonised approach to application/enforcement in all Member States, in particular in relation to catch alls Outcome?

14 Union General Export Authorizations UGEAs are issued by EU MS but administered at EU level Original UGEA 1 covers exports of all Annex I items (some exceptions) to Australia, Canada, Japan, New Zealand, Norway, Switzerland, the US and Liechtenstein Valid throughout the EU New UGEAs 2 through 5 (exist since January 2012) can be used for exports to limited number of countries if related to: Export of certain dual-use items Export after repair/replacement Temporary export for exhibitions/fairs Telecommunications Chemicals

15 EU: Resolution European Parliament (27 september 2011) The UGEA for telecoms equipment does not cover items of Category 5 (telecoms & information security) when these items may be used to breach human rights and/or freedom of speech (monitoring of telecoms and internet surveillance) License denials in a.o. Netherlands and Italy 15

16 EU Export Control Developments Italy has imposed a national license requirement on export of certain dual use items not listed in Annex I of EU Dual Use Regulation (and thus normally not subject to license requirement) for reasons of public security and human rights considerations to the Syrian Telecommunications Establishment: LAN infrastructure Database management software/workstation Interface and mediation systems for the system components Data filing storage Etc.

17 Licensing and Enforcement Member States may grant or refuse an export licence Now also possible to revoke export license in case of reasonable suspicion as to the exporter s ability to comply with the licence or export control regulation generally Enforcement, prosecution and penalties are left to EU MS Penalties must be proportionate, dissuasive and effective

18 National (EU Member State) 2009 Baker & McKenzie 18

19 National licences Licence from EU MS where the exporter is established Exporter : EU-based contracting party and power to send items out of EU National licences can be individual, global or general Licence valid throughout the EU Issuance of licence may be subject to requirements and conditions (e.g., end user undertaking, recordkeeping requirements, prohibition to deliver to free trade zone/warehouse, etc. )

20 Military 2009 Baker & McKenzie 20

21 Military Export Controls Defense policy is not part of EU authority EU Common Military List (= Wassenaar Arrangement Munitions List): 22 categories Quite similar to USML Applied on EU MS level Some countries (like UK and Germany) have additions on national level to EU Common Military List Others (like NL) simply apply EU Common Military List Differences in enforcement, penalties, licenses, rules, and interpretation 21

22 Military Export Controls Interpretation (i.e., when to grant or refuse a license) depends on certain conditions set out in Common Position 2008/944 These include human rights, internal and regional stability, etc. Often different interpretations between EU MS leading to competitive disadvantage for companies: E.g.: NL stopped issuing licenses for export of military goods to Saudi Arabia in June 2011 because of delivery of tanks by Saudi Arabia to Oman which were used in oppressing Omani population. Other MS still issue such licenses. 22

23 Final Comments 2009 Baker & McKenzie 23

24 Common Mistakes All relevant commercial documents (including in particular sales contract, order confirmation, invoice, dispatch note) for Annex I items must clearly indicate that the items are subject to controls if exported from the EU Exporter must keep documents or records for at least 3 years from the end of the calendar year in which the transfer took place Be aware: longer record-keeping periods may apply for exports which are covered by an export license (5 years, 7 years, or even longer) or on the basis of national, EU MS legislation Who is the exporter?

25 Suspicions? Customer reluctant to offer information/clear answers on routine commercial/technical issues (including end use) Routine installations and maintenance services are declined Unusual shipping requests Unusually favourable payment terms Military or government end user in sensitive destination Dealer evasive about his customers Make reasonable enquiries standard checks, record any enquiry made in writing and consider your product

26 EU vs US Export Controls Differences between EU and US systems: Extraterritorial impact of US controls More unilateral controls in US (controlled product lists and sanctions) No deemed export or re-export rules in EU Enforcement and penalties Statute of limitations Just because you are compliant with US controls does not mean you are compliant with EU controls (or vice versa)

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