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5.3 EU Export Controls

In general terms, economic operators are free to export any type of product from the EU to third countries without being subject to quantitative restrictions or administrative burdens. Goods, once they have satisfied all the internal customs obligations as regards exports, may be exported without the need of any further document or licence. However, there are specific export control measures at EU level.

In particular, Hong Kong traders should be aware that many products (especially those related to electronics and technology) must comply with the dual-use regime. Other products, such as dangerous chemicals or cultural goods, are also subject to specific export controls.

5.3.1 Dual-use

Dual-use products are items, including software and technology, which can be used for both civil and military purposes. They can also be items for the use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons; or the development, production, maintenance or storage of missiles capable of delivering such weapons.[58]

a) EU Regime for the Control of Exports of Dual-use Items and Technology

The EU Regime regarding dual-use items was established by Council Regulation 1334/2000. After numerous amendments, it was decided to recast this Regulation. This was done by means of the adoption, in 2009, of Regulation 428/2009. This Regulation currently forms the legal basis of the EU Dual-use Regime. The structure of the Regulation is largely similar to old Regulation 1334/2000. The Regulation sets out the different definitions, requirements and prohibitions with regard to the export of dual-use items from the EU to a third country, while Annex I to the Regulation contains a list of products considered dual-use items and therefore subject to the special control under this Regime.

Annex I  covers several categories of product (mainly nuclear materials, chemicals, micro-organisms, toxins, electronics, computers, telecommunications and information security products, sensors and lasers, navigation and avionics, marine, propulsion systems, space vehicles and related equipment), for which an export authorization is required when they are exported from the customs territory of the EU. However, in principle, such an authorization is not necessary with respect to these categories of goods when they are moved from one Member State to another (intra-Community movement).[59] It should be pointed out that software is also included in Annex I. In addition, the transmission of software or technology by electronic media, fax or telephone (intangible transfers) is also subject to export controls.

New dual-use Regulation 428/2009 introduces several novelties with regard to certain types of activities which will now also be covered by an authorisation. Under the new Regulation, not only are exports (or the transmission of software and/or technology) subject to authorisation requirements, but also the provision of brokering services with regard to dual-use items. Furthermore, the new Regulation confers on Member States the right to prohibit the transit of dual-use items on their country’s territory as well as the right to subject transit to prior authorisation.

b) Types of Authorisations

The new Regulation has amended the types of authorisation an exporter may apply for. The following types of authorisation can be obtained, depending also on the type and destination of products concerned:

  • Community General Export Authorisations (CGEA). These authorisations cover exports of most controlled items to the USA, Canada, Japan, Australia, New Zealand, Switzerland and Norway. They are granted by the EU. There is a proposal to create a new CGEA to simplify the current system with regard to exports of certain items to low-risk destinations[60].
  • National general export authorisations (NGAs). These authorisations may be issued by individual EU countries, provided that they do not conflict with existing CGEAs and do not cover any of the items listed in part 2 of Annex II to Regulation 428/2009. France, Germany, Greece, Italy, Sweden, the Netherlands and the UK currently make provision for these authorisations. NGAs are published in the official journal of the issuing country.
  • Global authorisations. These authorisations are granted by individual EU countries to one exporter and cover one or more items to one or more countries/end users.

Individual licences. These are granted by individual EU countries to one exporter and cover exports to one end user.

c) Application for a Licence

The application for an export licence has to be submitted to the competent authorities of the Member State where the exporter is established, including a declaration of the country of destination and end-use as well as the specifications of the product, its applications, a technical memorandum and all that information that may be useful to obtain the export authorisation.

The processing of the application for an export authorisation by the competent authority does not normally exceed ten working days, except in those cases relating to licences for the export of military goods. An authorisation to export an item on the dual-use list is valid throughout the EU.

In some EU Member States, the exporter has to be registered with a Special Register of Exporters of Defence material and Dual Use Items in order to apply for an export authorisation. In addition, exporters are subject to certain obligations, such as the obligation to preserve the documents and records of the exports, or the obligation to declare their exports every six months.

In addition, the Member States’ national authorities may require export controls on items that are not listed in the Regulation. Exporters should therefore refer to their relevant national rules and check the situation with regard to their specific transactions. Furthermore, individual EU countries may maintain certain specific national rules. Such rules can also apply to additional items to be controlled.

In sum, traders wishing to export their products from the EU are advised to verify the list of items subject to the dual-use regime in order to obtain an export authorisation. In addition, since a Member State may prohibit or impose different requirements upon the export of dual-use items for reasons of public security, it is also recommended to contact the competent authorities in order to check whether the export of a particular product may require an export authorisation. In addition, due to the entering into force of the Lisbon Treaty in 2009, the European Parliament has become a co-legislator in the field of export controls regarding dual-use items and will therefore have to approve any future changes to the EU dual-use regime.

5.3.2 Dangerous Chemicals

The Export and Import of Dangerous Chemicals

The export of dangerous chemicals from the EU is subject to the controls established in Council Regulation 689/2008. It implements the Rotterdam Convention on the Prior Informed Consent Procedure (PIC) for certain hazardous chemicals and pesticides in international trade (of 1998, which entered into force in 2004). This Regulation replaces Regulation 304/2003, which was annulled by the Court of Justice.

The Regulation covers chemicals subject to the PIC procedure and chemicals that are banned or severely restricted within the EU. These chemicals are listed in Annex I to the Regulation.

In addition to provisions relating to chemicals and pesticides listed in the Annex, the Regulation also contains provisions that apply to all chemicals when exported. These provisions address, in particular, requirements on packaging and labelling as specified by respective EU legislation.

The definitions included in the Regulation also include the concept of ‘articles’. These are finished products containing or including a chemical, the use of which has been banned or severely restricted by EU legislation in that particular product. Articles containing such chemicals in unreacted form are subject to export notification. Other articles may be subject to an export ban.

The Regulation does not apply to chemicals that are drugs, radioactive materials, wastes, chemical weapons, food and food additives, feeding stuffs, genetically modified organisms, pharmaceuticals (except disinfectants, insecticides and parasiticides), as defined in other EU legislation.

5.3.3 Cultural Goods

The Export of Cultural Goods (Regulation 116/2009)

Cultural goods are, inter alia, archaeological objects, antiques, paintings, books, manuscripts, films, means of transportation, maps, etc., all of which have a particular historical value.

Regulation 116/2009 replaces previous Regulation 3911/92. The new Regulation lays down rules for the export of cultural goods. The categories of cultural objects to which the Regulation applies are listed in Annex I to the Regulation

In order to export cultural goods outside the customs territory of the EU an export authorisation must be obtained. The exporter must request such an authorisation from the competent authority of his country. An authorisation will be valid throughout the EU. An EU country may refuse to grant an export licence if the goods are protected by legislation on national treasures of artistic, historical or archaeological value. Under certain circumstances, an EU country may permit exports of certain cultural goods without an authorisation.

 


[58] The export of arms may also be subject to an export prohibition as part of EU sanction measures against certain countries. In particular, arms embargoes are in place against Burma (Myanmar), Ivory Coast, the Chinese mainland, Congo, Iraq, Iran, Lebanon, Liberia, North Korea, Sierra Leone, Somalia, Sudan, Uzbekistan and Zimbabwe (see the regularly updated list of countries at:

http://ec.europa.eu/trade/issues/sectoral/industry/dualuse/index_en.htm

[59] Indeed, dual-use items may be traded freely within the EU except for those listed in Annex IV to Regulation 428/2009, which are subject to prior authorization.

[60] AT the time of writing, this proposal for a new Regulation on CGEAs has been voted on at the European Parliament and is being discussed by the Council. The new Regulation should be adopted in the course of 2011.

 

Content provided by Hong Kong Trade Development Council
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