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Details of the European Commission Proposal, September 2005: Content and Impact on Exporters

Details of the European Commission proposal for a Council Regulation on trade in equipment and products which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.
 
The new Regulation will come into force on 30 July 2006 and the following notice describes the content and the impact it will have on exporters. (See right hand column for our earlier Notice published in August 2005 [12/05] announcing the adoption of the Council Regulation (EC) No 1236/2005 [O.J.L200, 30.7.2005]; and the later notice [18/05] which announces the informal consultation on the Regulation).

Regulating trade in certain kinds of equipment
The Regulation details measures to regulate trade in specific equipment, including a ban on the export and import of equipment that could only be used for torture or capital punishment, together with a ban on related technical assistance. There are also provisions to make licensable the export of equipment which could be used for torture but which also has legitimate applications.
Background

The UK introduced a national ban on certain equipment used in torture following former Foreign Secretary, Robin Cook’s, statement to Parliament in July 1997.  Many of the items on the list of licenceable equipment, therefore, will already be subject to export control from the UK but, where this is not the case, we believe trade in such equipment would be minimal.

Impact on industry
The list of goods and supply of technical assistance related to the goods, which will be banned under the Regulation for both import into and export from the Community are listed in Annex II to the Regulation. These include:

Goods designed for the execution of human beings as follows:

• Gallows and guillotines;
• Electric chairs;
• Airtight vaults designed for the purpose of execution of human beings by the administration of a lethal gas or substance;
• Automatic drug injection systems designed for the purpose of execution of human beings by the administration of a lethal chemical substance. 
• Goods designed for restraining human beings, as follows:
• Electric shock belts designed for restraining human beings by the administration of electric shocks having a no load voltage exceeding 10,000v.

The only exception to the ban on the import and export of the goods described above, and of any related technical assistance, will be when they are used for public display in a museum in view of their historic significance.

Case by case assessment
The list of goods which will be subject to a case by case assessment for export from the Community only, are listed in Annex III to the Regulation.  These include:

Goods designed for restraining human beings, as follows:

• Restraint chairs and shackle boards (excludes chairs designed for the disabled);
• Leg-irons, gang-chains, shackles and individual-cuffs or shackle bracelets (excludes handcuffs which have an overall dimension including chain, measured from the outer edge of one cuff to the outer edge of the other cuff, between 150 and 280mm when locked and have not been modified to cause physical pain or suffering);
• Thumb-cuffs and thumb-screws, including serrated thumb-cuffs.

Portable devices designed for the purpose of riot control or self-protection, as follows:

• Portable electric shock devices, including but not limited to, electric shock batons, electric shock shields, stun guns and electric shock dart guns having no load voltage exceeding 10000v (excludes items listed in Annex II and individual electric shock devices when accompanying their user for the user’s own personal protection).

Substances for the purpose of riot control or self-protection and related portable dissemination equipment, as follows:

• Portable devices for the purpose of riot control or self-protection by the administration or dissemination of an incapacitating chemical substance (excludes individual portable devices, even if containing a chemical substance, when accompanying their user for the user’s own personal protection);
• Pelargonic acid vanillylamide (PAVA)(CAS 2444-46-4);
• Oleoresin capsicum (OC)(CAS 8023-77-6).

Leg-irons, gang-chains and portable electric shock devices
The Regulation also permits Member States to adopt or maintain a prohibition on the export and import of leg-irons, gang-chains and portable electric shock devices, and to impose an authorisation on the export of handcuffs where the overall dimension exceeds 240mm when locked.

Licence Authorisation 
Any licence issued against provisions of the Regulation will be valid throughout the Community for a maximum of 12 months from the date of issue. 

Exceptions
For the purpose of this Regulation only, an export authorisation for goods listed in Annex III will not be required where:

• The goods only pass through the customs territory of the Community, that is those which are not assigned a customs-approved treatment or use, other than the external transit procedure within Article 91 of Regulation (EEC) No 2913/92 establishing the Community Customs Code, including storage of non-community goods in a free zone of control type 1 or a free warehouse;
• The export is to territories of Member States which are both listed in Annex IV to the Regulation, and are not part of the customs territory of the Community, providing that the goods will be used by the authority in charge of law enforcement in both the country or territory of destination and the metropolitan part of the Member State to which that territory belongs;
• The export is to third countries, providing that the goods will be used by the military or civil personnel of a Member State of the EU, if they are taking part in an EU or UN peace-keeping or crisis management operation in the third country concerned, or in an operation based on agreements between Member States and the third countries in the field of defence.    

National options
Article 7 of the Regulation allows Member States to adopt or maintain national controls as follows:

• Adopt or maintain a prohibition on the export and import of leg-irons, gang-chains and portable electric shock devices;
• Impose an authorisation requirement on the export of handcuffs, which have an overall dimension including chains, measured from the outer edge of one cuff to the outer edge of the other cuff, exceeding 240mm when locked.

The UK is considering adopting the national options as follows:

• Maintaining a national ban, to all destinations, on the export of leg-irons, gang-chains and portable electric shock devices;
• Maintaining a national export licensing requirement, to all destinations, for handcuffs which have an overall dimension, measured from outside edge of  one cuff to the outside edge of the other cuff, exceeding 240mm and up to 280mm.

UK national legislation
The Regulation does not include provisions for licensing, penalties or enforcement, and so these will be implemented within UK national legislation, along with the national options identified above. These will be implemented by means of an amendment to The Export of Goods, Transfer of Technology and Provision of Technical Assistance (Order) 2003.

Although the adoption of the Regulation will have an impact on current national controls on transhipment of goods listed in Annex III, trade controls are unlikely to be affected.  A further Notice to Exporters on the impact of the Regulation on transhipment and trade controls will be published in due course.

For further details of strategic export controls, please contact:

Department of Trade and Industry
Kingsgate House, 66-74 Victoria Street
London SW1E 6SW

Fax 020 7215 0531
email eco.help@dti.gsi.gov.uk

Copies of the EC Regulation
Exporters can get a copy of the Regulation from the Official Journal on the EU website in the right hand column.

This notice is for information purposes only and has no force in law. Please note that where legal advice is required exporters should make their own arrangements.

Export Control Organisation
Department of Trade and Industry

September 2005

XNP Notice 14/05