EU Export controls on dual-use goods are found in Regulation 428/2009. These regulations cover the control of transfers, brokering activities, export controls and transit of dual-use goods. Goods that come under controls can be found in the Annex of the regulations, however catch-all clauses exist. Nonetheless, the list in the Annex is regularly updated.
Unlike US EAR regulations, EU Export controls do not include deemed exports.
EU Export controls are not new in the Customs compliance space, and were first entered into force in 1995 then redesigned in 2009. Dual-use items are defined in the regulations as raw materials, complete systems and components that can take the form of goods, technology, software, documents and diagrams that have both military and non-military use and/or application.
A few key definitions:
- Export: There must be a change in location of a product that involves move from within the EU to outside the EU. This includes intangible products electronic data, phone calls and fax messages
- Transfer: A movement in product from one EU country to another EU country
- Transit: The product enters the EU, but is not of EU origin and not meant for free sale in the EU
- Catch-all provisions: These are intended to automatically include any products or items intended for use in biological, chemical or nuclear weaponry. It also includes items that can be used in missile technology.
- Brokering: The selling, buying, facilitating or negotiation activities surrounding the movement of controlled items from 1 country to another country. Some exceptions exists for fundamental research or software and technology that is publicly available
Some important points about EU Export Controls:
- Traders in the EU can freely move and trade dual-use items. This applies to all items except for those found in Annex IV, which require special authorizations. There are a few other scenarios where intra EU movement of items may require authorization:
- If the known final destination is outside the EU
- If no processing or further work is going to be conducted in the receiving EU state
- If the items themselves would be subjected to an Export license in the receiving EU state
- EU countries can add country specific rules if they find them necessary and apply them to the items and products that require controls. The additional rules can include additional checks at border check points and within EU.
- EU countries can add dual-use items to the control lists independently.
A final note on EU Export Controls
Some similarities can be found between EU Export controls and US Export controls. However, these are not interchangeable. It will not be an excuse for exporters to not apply for a license for exports of controlled items from EU, simply because these same items are not controlled when exported from US. It is important for businesses to meet all export control regulations and in some cases a single shipment can require several approvals and authorizations from multiple country authorities. For example, a EU exporter who is exporting US origin technology from EU to Singapore in transit for a final end user in India, may need to meet the Export Control regulations in EU, US and Singapore.