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The Guide to Sanctions - First Edition

Export Controls in the European Union and United Kingdom

Baker McKenzie

Introduction

Export controls can be described as restrictions on international trade in certain sensitive goods, software and technology (hereinafter, Items). Generally, this involves licensing requirements or prohibitions on the cross-border movement of Items identified on specified control lists established at national or international level, or when sensitive end uses are involved, with potentially severe consequences for non-compliance.

In the European Union (EU), export controls include both EU-wide restrictions provided for through EU legislation, as well as EU Member State-specific export controls set out at a national level. In each case, these controls are administered and enforced at national Member State level, resulting in certain variations in how export controls are applied across the EU.

Since the United Kingdom’s (UK) decision to leave the EU in June 2016, there are now also additional considerations and complexities in terms of how (and, currently, when) certain independent UK export controls will apply.

This chapter gives an overview of export control rules under EU and UK law (including the current position in respect of Brexit), covering the key types of controls on Items subject to EU and UK export controls; the circumstances in which export controls apply; export licensing requirements and practicalities; and the potential consequences of non-compliance.

Overview of EU export controls

EU export controls consist of a patchwork of EU-wide rules set out pursuant to EU legislation and local rules applied by individual Member States. These rules predominantly implement export controls on Items agreed pursuant to international frameworks to which the EU or its Member States are party (i.e., the Wassenaar Arrangement, the Australia Group (chemical weapons), the Nuclear Suppliers Group and the Missile Technology Control Regime).

In line with these international frameworks, EU export controls apply to both tangible and intangible exports of controlled Items (i.e., types of goods, software or technology specifically identified on relevant export control lists, such as the EU list of dual-use controlled Items as described below). Each of these controlled Items will be classified under a relevant export control regime, with a specific control entry (the EU equivalent of a US Export Control Classification Number); otherwise, the item will be classified as ‘NLR’ (no licence required).

EU export control rules can also apply to exports of non-listed Items (i.e., those that do not specifically appear on export control lists) if there is knowledge, awareness or (in some cases) suspicion of a sensitive end use (known as ‘catch all’ end-use controls). This includes certain end uses relating to the military sector or weapons of mass destruction.

The two main export control regimes in the EU are those in relation to (1) dual-use export controls (i.e., Items that can be used for commercial or civilian purposes but also for military purposes) and (2) military export controls, generally in relation to listed Items that are specially designed or modified for military use. As noted below, certain other regimes apply in the EU, including in relation to torture equipment.

Key questions for assessing transactions under EU export control rules

When considering any transaction under EU export control rules, key questions to consider include the following:

  • Classification: are any Items involved in the transaction classified on any relevant EU export control list (and, if so, which list and which specific export control entry applies)? This analysis can be complex, requiring detailed understanding of both the export control lists and the technical specifications of the Items in question, given both the breadth and detail of relevant export control lists (which also often include various exceptions and exemptions).
  • End use: is there evidence indicating that the Items may be intended for a controlled end use? In some cases, an exporter may be informed by a relevant authority or clearly aware of a controlled end use, and will thus need to apply for a licence; in other cases, there may be red flags in a transaction that give rise to suspicion of a controlled end use, which must be carefully considered in each individual case under the relevant laws.
  • Export: Is there a licensable ‘export’ or other controlled activity? Only certain types of dealings with controlled Items (or transactions involving controlled end uses) will require a licence under export controls. For example, in respect of EU dual-use export controls, a licence is generally required for any physical shipment or intangible transfer of a controlled dual-use Item from within to outside the territory of the EU. In certain more sensitive cases, transfers of items between EU Member States (or even within an individual EU Member State), or the arrangement or negotiation of transfer between third countries, may require an export licence.
  • Destination and end user: where and to whom will the Item be exported? These questions will often determine which type of licence may be required or may be available, or whether the relevant authority will grant a licence at all. In this respect, EU export controls often overlap with EU sanctions where the destination or end user are subject to restrictive measures under an EU sanctions regime. In assessing transactions, it is also important to consider the risk of an Item being diverted to a destination or end user other than those intended.
  • Exporter: which entity is the exporter? This will often depend on which party holds the contract and has the power to determine the export of an Item. The exporter will be responsible for obtaining any necessary export licence and be at risk of penalties in the event of any breach of export control rules. Under EU dual-use export controls, the country of establishment of the exporter will also determine which EU Member State will be responsible for licensing in respect of the relevant export.
  • Licensing: what kind of export licence may be available (if any), and which conditions and requirements apply? Even if an exporter can obtain or register to use a relevant export licence, it is imperative to ensure that its exports are within the scope of that licence and that all conditions are fully complied with (including in respect of registration, record-keeping and end-user undertakings).

EU dual-use export control regime

In the EU, the key dual-use export control legislation is currently Council Regulation (EC) No. 428/2009 as amended (the EU Dual-Use Regulation). This sets out EU-wide controls that are directly applicable in all EU Member States, including controls on specifically listed dual-use Items and in respect of exports relating to controlled end uses.

EU dual-use items

Definition and scope of dual use

Under the EU Dual-Use Regulation, dual-use items are defined as ‘items, including software and technology, which can be used for both civil and military purposes, and shall include all goods which can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices’.[2]

The EU Dual-Use Regulation sets out lists of specific types of dual-use Items for which a licence (referred to within the Regulation as an ‘authorisation’) must be obtained in advance of export. Items covered by the EU Dual-Use Regulation include:

  • goods (i.e., physical items);
  • software – defined to cover a collection of one or more ‘programmes’[3] or ‘micro­programmes’[4] fixed in any tangible medium of expression. This includes software stored on computer hardware, and on removable storage such as USB drives, CDs and DVDs; and
  • technology – defined to cover specific information necessary for the ‘development’, ‘production’ or ‘use of goods’ (or software), with those terms further as defined within the EU Dual-Use Regulation.[5] This information takes the form of ‘technical data’[6] or ‘technical assistance’.[7]

Annex I of the EU Dual-Use Regulation

The main list of controlled Items can be found in Annex I, which, in summary, specifies Items for which a licence must be obtained before they are exported from within to outside the EU territory. Certain record-keeping and paperwork requirements also apply in respect of intra-EU transfers of Items listed in Annex I.

Annex I currently consists of 10 categories of controlled Items on more than 300 pages of the Regulation, with control entries including specific technical parameters (such as detailed definitions, exemptions and exceptions). The Items controlled in Annex I include various goods, software and technology used in a range of sectors, including marine, aerospace, chemicals, oil and gas, mining, pharmaceutical and nuclear. Statistical estimates published by the European Commission indicate that, in 2018, authorised dual-use trade amounted to €36.6 billion, representing 2 per cent of total extra-EU exports.

In line with international export control frameworks as noted above, the 10 categories in Annex I to the EU Dual-Use Regulation are as follows:

  • Category 0: Nuclear materials, facilities and equipment
  • Category 1: Special materials and related equipment
  • Category 2: Materials processing
  • Category 3: Electronics
  • Category 4: Computers
  • Category 5: Telecommunications (Part 1) and Information security (Part 2)
  • Category 6: Sensors and lasers
  • Category 7: Navigation and avionics
  • Category 8: Marine
  • Category 9: Aerospace and propulsion

Each of these categories is further subdivided into sections, covering:

  • A: systems, equipment and components;
  • B: test, inspection and production equipment;
  • C: materials;
  • D: software; and
  • E: technology.

Each of these sections is then further subdivided into individual control entries for particular items, often very technical and detailed in nature, with certain exceptions and exemptions. There are also a number of general exceptions from export control. These cover, for example, software and technology that is in the public domain.

By way of example of an Annex I dual-use Item, a server with controlled encryption functionality may be caught within Annex I control list entry 5A002a1, denoting that:

  • this is an ‘information security’ Item (Category 5, Part 2);
  • this is a piece of ‘equipment’ (sub-category A, within Category 5, Part 2); and
  • the server meets the specific control parameters of entry 5A002a1 (a control entry derived from the Wassenaar Arrangement).

Annex IV of the EU Dual-Use Regulation

A much shorter list of more sensitive Items is set out at Annex IV to the EU Dual-Use Regulation, for which a licence is also required for intra-EU transfers. These items include highly sensitive Items, such as cryptanalytic items, most nuclear-related items, stealth-related technology, and items relating to missiles and chemical warfare.

Additional national Member State dual-use controls

In addition to control lists set out under the EU Dual-Use Regulation, EU Member States may also set out their own lists of controlled dual-use items. Germany, for instance, has done so by including some dual-use items on the national export list[8] that are not already covered by the EU Dual-Use Regulation, if they are to be exported to certain countries. One example is entry 6A908, which refers to radar-based navigation or surveillance systems for shipping or air traffic or components thereof that are not already covered under Annex I of the EU Dual-Use Regulation, if the destination of the Items is Iran.

End-use controls under the EU Dual-Use Regulation

As noted above, a licence may be required in respect of Items that are not controlled under a relevant list, when the transaction may involve a controlled end use. These are the ‘catch all’ controls, since any Item could in theory be subject to a licensing requirement depending on the end use.

Key end-use controls under the EU Dual-Use Regulation include the following:

  • weapons of mass destruction-related end use (WMD end use): a licence will be required if an exporter has been informed by a competent Member State authority, or is aware, that an Item is or may be intended, in its entirety or in part, ‘for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons’.[9] Member States may extend this control to apply when a person has grounds for suspecting this type of end use; and
  • military end use: a licence will be required if an exporter has been informed, or is aware, that an Item is or may be intended, in its entirety or in part, for a specified ‘military end-use’. In short, these military end uses cover situations in which (1) the item is or may be intended for use with military equipment in a destination subject to an EU or OSCE[10] arms embargo or (2) the item may be intended for use as parts of military goods illegally obtained from the EU, irrespective of destination.

In addition, under Article 8 of the EU Dual-Use Regulation, EU Member States may decide to prohibit or impose an authorisation requirement on the export of non-listed Items for reasons of public security or human rights considerations.

Types of activities controlled under the EU Dual-Use Regulation

Exports

A licence will be required for any export of Annex I-listed Items or of any non-listed items in respect of a controlled end use.[11] The concept of an export captures both (1) shipments of tangible (physical) goods from within to outside the territory of the EU (including hand carries of Items), and (2) intangible transfers of controlled software or technology from within the EU to a destination outside the EU. These exports can occur intra-group and need not involve any sale, consideration or transfer of ownership.

The concept of an intangible transfer under EU export controls is particularly broad and is a common area in which companies can fall foul of the rules. Examples include:

  • sending or making available controlled software or technology to a recipient in another country by email or file transfer protocol;
  • reading controlled technology to a person in another country over the phone; and
  • placing controlled software or technology on a server or shared drive and making that software or technology accessible in another country, such as over an intranet site (including if the server to which the Items are uploaded is in the same country).

Brokering and transit controls

Licences are also required in certain circumstances when a person or entity in the EU is involved in brokering (e.g., negotiating or arranging) the sale or supply of Items between two third (i.e., non-EU) countries.[12] These controls typically apply when the relevant EU broker has been informed or is aware of a controlled WMD end use in respect of a listed Annex I Items. However, Member States are also permitted to extend brokering controls to capture:

  • non-listed dual-use items that are or may be intended for a controlled WMD end use;
  • Items that are or may be intended for a controlled military end use; and
  • circumstances in which there are grounds for suspecting a WMD end use.

Likewise, while Items in transit through the EU (i.e., passing through the EU from and to a non-EU destination) are not subject to EU dual-use export controls, Member States may prohibit Items in transit if they are or may be intended for a controlled WMD end use.

Intra-EU transfers

As the EU is a single customs territory allowing for free movement of goods, export controls principally apply to exports of dual-use Items from the EU to a destination outside the EU. Intra-EU movements of most dual-use Items do not normally require a licence. However, there are a few important points to note:

  • As noted below, military controlled items generally require a licence for transfers between EU Member States, as these controls are set at national level.
  • As noted above, certain sensitive dual-use Items as listed under Annex IV of the EU Dual-Use Regulation require a licence to be transferred between EU Member States.
  • Licences may be required for intra-EU movements of dual-use Items when the Items will be re-exported from the EU without being further processed, and a licence would be required to export them from the EU. This is an optional control that only certain EU Member States have implemented.
  • All intra-EU transfers of Items listed in Annex I to the EU Dual-Use Regulation must be accompanied by a statement that the Items are subject to control if exported from the EU. The statement should appear in the relevant commercial documents (e.g., contracts, order confirmations, invoices and dispatch notes). Additionally, records of intra-EU transfers must be kept for at least three years from the end of the calendar year in which the Items are transferred.

Military export controls in the European Union

Export controls in relation to military Items are the preserve of each EU Member State. The EU does maintain a common military list, setting out a list of military Items subject to export controls. This list is adopted annually by the Council, pursuant to Council Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment. However, this list is non-binding, and it is up to each Member State to legislate for and implement its own, national military export controls.

Generally, controls on military Items as adopted by individual Member States – and pursuant to the EU common military list – capture items that are either ‘specially designed’ or ‘modified’ for military use. These terms are not currently defined on a pan-EU basis but are generally very broadly interpreted. This can apply (for example) to Items that are simply developed or customised for a military customer even if they have civilian applications.

The EU common military list currently captures 22 categories of military-controlled Items, again capturing goods, software and technology. Items caught by this list are set out in entries ML1 to ML22, inclusive, covering a range of Items such as weapons and firearms; ammunition; bombs, rockets, missiles and other explosives and explosive devices; military vehicles, vessels, aircraft and drones; chemical and biological agents and radioactive materials; armoured or protective equipment; imaging equipment and other electronic equipment; and certain software and technology (in each case specifically designed or modified for military use).

Germany, for example, distinguishes between military Items and war weapons. All military Items are subject to a licence requirement for exports. However, some of these Items are also war weapons, which are subject to further restrictions under the German War Weapons Control Act.

Additional types of controlled items in the EU

In addition to dual-use and military Items, a number of other Items may be controlled under separate export control lists either at EU or Member State level.

By way of example, the EU’s Anti-torture Regulation[13] is a reflection of the EU’s commitment to eradicate torture and the death penalty. The measures seek to prevent the trade in certain goods that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment. The Regulation:

  • prohibits the import, export, transit, brokering or advertising of goods that have no practical use other than for the purpose of capital punishment or for the purpose of torture and other cruel, inhuman or degrading treatment or punishment;
  • requires a prior export authorisation for any export of goods that could be used for capital punishment, torture or for cruel, inhuman or degrading treatment or punishment; and
  • regulates the trade in certain pharmaceutical chemicals that could be used in lethal injection executions, without limiting trade of those chemicals for legitimate purposes.

As a specific example of the dynamic nature of export controls, during 2020 we also saw the introduction and subsequent removal of controls in relation to personal protective equipment (PPE), in response to the covid-19 pandemic. Specifically, on 15 March 2020, the EU published an Implementing Regulation on PPE to respond to potential future shortages of the equipment in the EU.[14] The Regulation prohibited exports without a licence of the PPE listed in Annex I, whether or not it originates in the EU, to destinations outside the EU. Annex I includes mouth and nose protection equipment, gloves and other protective garments. The Implementing Regulation was made pursuant to Article 5 of Regulation (EU) 2015/479, which permits the Commission to adopt temporary export control measures to prevent or remedy critical situations arising from shortages of essential products. The Regulation, initially due to apply for six weeks was extended on 24 April 2020 for a further 30 days[15] and expired on 26 May 2020.

UK export controls

Status of the UK in respect of EU dual-use export controls in light of Brexit

At the time of writing, the UK remains a part of the EU’s customs territory, and therefore EU export control legislation – including the EU Dual-Use Regulation – continues to apply in the UK without change. This means that the UK is effectively still considered to be an EU Member State for the purpose of export controls, and so no licences are needed for movements of Annex I dual-use Items between the EU and the UK.

This position will not change at least until 31 December 2020, when the current Brexit transition period is due to end (subject to any extension of this transition period that may be agreed between the UK and the EU).

Once the Brexit transition period ends (whether as of 1 January 2021 or following any extension of this date) and absent any agreement between the UK and the EU to the contrary (i.e., under a ‘no-deal’ Brexit), the UK would be treated as a third country by the EU, and vice versa. As such, licences would be needed to authorise movements of dual-use Items between the EU and the UK; likewise, dual-use export licences granted in the UK would no longer be valid for export from the EU, and vice versa.

However, at the time of writing, the UK has provided for licensing coverage in respect of dual-use exports from the UK to the EU, and the EU is likely to add the UK as a destination to its general export authorisation EUGEA 001 (see further, below).

Current UK export controls

As noted above, the EU Dual-Use Regulation continues to have direct effect in the UK, although domestic UK legislation creates the relevant offences for failing to comply with the EU Regulations. In addition, the UK provides for export controls in respect of military and other items.

Key UK-specific export legislation includes the following:

  • Export Control Act 2002 – framework statute;
  • Export Control Order 2008/3231 2008 (the ECO 2008), which sets out the UK’s military export and brokering controls and certain supplementary dual-use controls, as well as providing for licensing and enforcement in respect of the EU Dual-Use Regulation; and
  • Customs and Excise Management Act 1979, which establishes key UK criminal offences related to breaches of dual-use and military export controls.

The ECO 2008 sets out two key UK export control lists:

  • The UK Military List (Schedule 2 to the ECO 2008), which sets out the items subject to military export controls in the UK. This is closely aligned with the EU common military list. The concepts of ‘specially designed’ or ‘modified’ for military use is likewise interpreted widely in the UK; and
  • The UK Dual-Use List (Schedule 3 to the ECO 2008), which sets out a limited number of items on which the UK has chosen to impose additional controls. Most of these items are controlled only for supply to specific destinations, such as Iran and Russia.

In addition, the ECO 2008 also provides for a very broad licensing requirement on any action that is ‘calculated to promote the supply or delivery’ of items listed on the UK Military List (sometimes referred to as ‘trafficking and brokering controls’). These controls can potentially be triggered not only by individuals in the UK, but also by UK nationals engaging in trafficking and brokering outside the UK.

In the UK, items subject to export controls are consolidated within the UK Strategic Export Control Lists.[16] This includes not only military and dual-use listed Items, but also certain other lists, including torture equipment, non-military firearms and radioactive sources.

Licensing and compliance under EU and UK export controls

Within the EU, individual Member States are each responsible for licensing in respect of exports (whether in respect of EU-wide controls on dual-use Items, or national controls). There is no EU-wide export licensing body.

For example, in Germany, the central authority responsible for issuing licences is The Federal Office for Economic Affairs and Export Controls (BAFA).[17] BAFA offers an online tool through which licences can be obtained and can assist in classifying goods. There are a number of very useful general export authorisations available in Germany, in addition to the EU-wide general export authorisations explained below.

Different types of licences may be available depending on the Item and transaction in question (including, in particular, the relevant destination). The EU Dual-Use Regulation sets out certain common forms for licences as follows:

  • individual export authorisations (i.e., an authorisation granted to one specific exporter for one end user or consignee in a third country and covering one or more dual-use Items);
  • global export authorisations (i.e., an authorisation granted to one specific exporter in respect of a type or category of dual-use Item that may be valid for exports to one or more specified end users, and in one or more specified third countries); and
  • general export authorisations (i.e., an off-the-shelf export authorisation for exports to certain countries of destination available to all). These may be EU-wide or granted by individual Member States. In particular, EU-wide general export authorisations (GEAs) are publicly available licences set forth in the Annexes to the EU Dual-Use Regulation and available, on registration, for exports of certain less sensitive Items to specific countries, subject to certain conditions. By way of example, the original EU GEA 001 covers all items listed in Annex I of the EU Dual-Use Regulation, with certain exceptions, covering exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland, the United States and Liechtenstein (and probably to the UK following a no-deal Brexit). Five additional, more limited, EU GEAs were introduced in January 2012.

Each licence covers exports of certain Items, to certain destinations, in some cases only to certain end users or consignees. In addition, each licence will have specific conditions, exclusions and requirements. These include obligations to obtain written undertakings from consignees or end users prior to export. For example, these undertakings can include certifications from the end user that they are the intended end user of the goods to be supplied by the licensee, and that the goods will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering those types of weapons. It is critical for exporters to ensure full compliance with the terms of any export licence. This is a typical area of non-compliance, with authorities in the EU and UK commonly conducting audits in which they scrutinise exports for compliance with all licence conditions.

Certain licences may only be granted when the EU or UK exporter can demonstrate that it has sufficient export compliance policies and procedures in place. Again, export authorities may audit exporters to determine whether appropriate policies and procedures are in place. In 2019, the European Commission made specific recommendations in respect of the key elements it would expect to see in an internal compliance programme,[18] which include the following:

  • top-level management commitment to compliance;
  • organisation structure, responsibilities and resources;
  • training and raising awareness;
  • transaction screening process and procedures;
  • performance review, audits, reporting and corrective actions;
  • record-keeping and documentation; and
  • physical and information security.

Under the EU Dual-Use Regulation, the relevant export licence must be obtained by the exporter from the Member State authority in which it is established (e.g., where it is incorporated). A licence granted in one EU Member State should be valid for exports from any other Member State (although, certain local restrictions can apply in practice). The exporter is currently defined to include (in summary):

  • in respect of physical shipments, the party that holds the contract with the consignee in the third country and has the power for determining the sending of the item out of the customs territory of the EU; and
  • in respect of intangible transfers, the party that decides to transmit or make available software or technology to a destination outside the European Community.[19]

Determining which entity is the exporter, and in which EU Member State it is established (and thus from which Member State’s competent authority the relevant export licence must be obtained), is a key matter that is not always straightforward in more complex supply chains. Different Member States can also take different approaches to the concept of ‘establishment’.

In the UK, licences are issued by the Export Control Joint Unit which forms part of the UK Department for International Trade. The following export licences are the most common in addition to the EU GEAs (available to cover both dual-use and military Items, and with equivalent licences available in respect of brokering activities):

  • Standard Individual Export Licences or SIELs (i.e., UK individual licences as per above), generally covering a specific quantity or value of exports to a specified end user in a specified country;
  • Open Individual Export Licences or OIELs (i.e., UK global licences as per above), generally covering multiple items to multiple countries or end users, with no limits on quantity or value; and
  • Open General Export Licences or OGELs (i.e., national general licences as per above), constituting off-the-shelf licences covering certain Items to certain destinations subject to specified conditions and requirements, and for which an exporter may register and use without needing to apply.

Consequences of non-compliance with EU and UK export controls

The implementation and enforcement of export controls in the EU is also the responsibility of individual EU Member States (and the UK). The EU Dual-Use Regulation states that each Member State shall take appropriate measures to ensure proper enforcement, including penalties that are effective, proportionate and dissuasive.

Penalties for breaches of export controls can include civil or criminal penalties, or broader legal and practical consequences, varying by jurisdiction. Typical penalties may involve:

  • civil or criminal fines;
  • imprisonment;
  • disqualification of company directors;
  • seizure of items that were the subject of the violation; or
  • revocation of export licences (including the ability to use general licences).

More broadly, export violations may damage an exporter’s relationships with relevant licensing authorities, potentially hampering the ability to obtain export licences in the future (which can significantly affect business activities). Export violations may also damage relationships with banks and other counterparties and key stakeholders, as well as a company’s reputation.

The main enforcement body for export control in the UK is Her Majesty’s Revenue and Customs (HMRC). In addition to referring cases to the Crown Prosecution Service (CPS) for a potential prosecution, HMRC is also able to issue civil penalties (sometimes known as ‘compound’ penalties), as a way of settling an investigation that it would otherwise refer to CPS for a potential criminal prosecution. The power for HMRC to issue a compound penalty is found in Section 152 of the Customs and Excise Management Act 1979. Compound penalties are sometimes made public in an anonymised form and whether or not HMRC seeks to settle a breach by way of a compound penalty, or recommends a criminal prosecution, depends on a variety of factors. In August 2019, HMRC set out the approach it takes to enforcement in a written submission to the Parliamentary Committee on Arms Export Controls.[20]

In the UK, there are a number of criminal offences that may be triggered by an export control violation, depending on the nature of the breach. The majority of UK offences are set out in the Export Control Order 2008 (the Order), and these fall into one of four categories:

  • offences concerning prohibited or controlled goods.[21] These offences relate to:
    • military goods;[22]
    • goods that may be used for purposes relating to weapons of mass destruction (WMD);
    • providing any technical assistance for the supply, delivery, manufacture or maintenance of WMD;[23]
    • supplying or delivering, or agreeing to supply or deliver, or doing anything to promote the supply or delivery of certain goods between any overseas country and embargoed destinations;[24] and
    • supplying or delivering, or agreeing to supply or deliver, or doing anything to promote the supply or delivery of Category A goods,[25] Category B goods[26] or Category C[27] goods from one third country to another third country (namely the items on the UK’s control list of military items, categorised according to their sensitivity);
  • offences concerning dual-use goods[28] (i.e., dual-use items or any item that is usable for both civil and military purposes);[29]
  • offences concerning the Torture Regulation;[30] and
  • offences concerned with making misleading statements for obtaining a licence.[31]

Although there are a number of offences that can be triggered by a breach, we have seen UK enforcement authorities increasingly use their civil powers of settlement as opposed to commencing a prosecution. For example, between 2016 and 2019, a total of 12 compound penalties has been issued by HMRC[32] and three prosecutions under the Order.


Footnotes

1 Anahita Thoms, Tristan Grimmer and Ben Smith are partners at Baker McKenzie.

2 Council Regulation (EC) No. 428/2009, Article 2.

3 id., Annex I, Article 2 defines ‘programme’ as ‘a sequence of instructions to carry out a process in, or convertible into, a form executable by an electronic computer’.

4 id.,, Annex I, Article 2 defines ‘microprogramme’ as ‘a sequence of elementary instructions, maintained in a special storage, the execution of which is initiated by the introduction of its reference instruction into an instruction register’.

5 id., Annex I, Article 2.

6 id., Annex I, Article 2 notes that ‘technical data’ may take forms such as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instructions written or recorded on other media or devices, such as disk, tape, read-only memories.

7 id., Annex I, Article 2 notes that ‘technical assistance’ may take forms such as instructions, skills, training, working knowledge and consulting services and may involve the transfer of ‘technical data’.

8 Foreign Trade and Payments Act (AWV) Annex 1, Part 1, Section B on dual-use items.

9 Council Regulation (EC) No. 428/2009, Article 4.

10 Organisation for Security and Cooperation in Europe.

11 Council Regulation (EC) No. 428/2009, Chapter II, Article 3.

12 id., at Chapter II, Article 5.

13 Regulation (EU) 2019/125 of the European Parliament and of the Council of 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.

14 Commission Implementing Regulation (EU) 2020/402 making the exportation of certain products subject to the production of an export authorisation.

15 Commission Implementing Regulation (EU) 2020/568 making the exportation of certain products subject to the production of an export authorisation.

17 Bundesamt für Wirtschaft und Ausfuhrkontrolle.

18 Commission Recommendation (EU) 2019/1318 of 30 July 2019 on internal compliance programmes for dual-use trade controls under Council Regulation (EC) No. 428/2009.

19 Council Regulation (EC) No. 428/2009, Chapter I, Article 2(3).

21 The Export Control Order 2008, Article 34.

22 See id., at Articles 34 and 3.

23 See id., at Articles 34 and 19.

24 See id., at Articles 34 and 20.

25 See id., at Article 21 and Schedule 1, Part 1 of the Order for Category A goods.

26 See id., at Article 22 and Schedule 1, Part 2 of the Order for Category B goods.

27 See id., at Article 23 and Article 2(1) for Category C goods.

28 id., at Article 35.

29 id., at Article 2(1).

30 id., at Article 36.

31 id., at Article 37.

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