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Even if the items which
you intend to export are not listed in the current Dual-Use
Items (Export Control) Regulations (DUEC), or under Annex
1 of the Council Regulation (EC) No. 1334/2000(1)
YOU MIGHT STILL REQUIRE AN EXPORT LICENCE UNDER THE
MILITARY END USE CONTROL. It is therefore in your interest
to read this Guidance Note carefully and in full.
Introduction
On 22 June 2000 a new Council
Regulation (EC) No. 1334/2000 setting up a Community regime
for the control of exports of dual-use items and technology
was adopted by the Council of Ministers and subsequently
entered into force on 28 September 2000.
The new EC Regulation which,
like the Regulation it replaced, is directly applicable
in all Member States, introduced two new "military"
end-use controls.
- The first of the two controls
applies in respect of dual-use items not otherwise subject
to control where the exporter has been informed, that
they are or may be intended for incorporation into military
equipment, or for the development, production or maintenance
of such equipment, or for use in a plant for production
of such equipment. However, the control only applies in
respect of countries subject to an arms embargo decided
by a common position or joint action adopted by the Council;
a decision of the Organisation for Security and Co-operation
in Europe (OSCE); or an arms embargo imposed by a binding
resolution of the Security Council of the United Nations.
The control applies to any exports involving an entity
located in such destinations, including purchasers, consignees
and end users. The countries which are currently subject
to such arms embargoes are:
Armenia,
Azerbaijan, Bosnia & Herzegovina, Burma, Burundi(2),
Democratic Republic of Congo(2),
Iraq, Liberia, Libya, Rwanda, Sierra Leone, Sudan, Somalia,
Tanzania(2) and Uganda(2),
Zimbabwe.
- The second of the two military
end-use controls only applies in respect of dual-use items
not otherwise subject to control where the exporter has
been informed (Article 4(3) see Annex) , that they are
intended for use as parts or components of "illegally
obtained" (from the UK) military goods irrespective
of destination.
If the exporter is aware
(Article 4(2)&(4) and (Article 4(4) see Annex) that the
proposed export is or may be intended for any of the uses
described above, they must inform the ECO, which will decide
whether they must apply for a licence and inform them accordingly
(see below).
References above to military
equipment or military goods mean any items controlled under
the Export of Goods (Control) Order 1994, as amended.
In addition to the controls
listed in the EC Regulation, The Dual-Use Items (Export
Control) Regulations 2000 (DUEC), which also entered into
force on 28 September, gives effect to certain provisions
of the EC Regulation. Regulation 4(3)(d)(iii) of the DUEC
in particular (see Annex) controls the export to a destination
in another Member State of any dual-use items not otherwise
subject to control, where the provisions of Article 4 (2),(3)
or (4) (in other words the controls referred to above) of
the EC Regulation apply and it is known at the time of the
export that the final destination is outside the European
Community. Under Article 4 (1) of the EC Regulation these
same provisions also apply to the WMD End-Use Control, see
separate guidance on this subject.
This guidance note attempts
to explain the combined effect of the "military end-use"
provisions in the Council Regulation and the DUEC and to
answer the kind of questions which may be asked by business.
How will I be informed that
I require an export licence because of the military end-use
control or that no licence is required?
Normally you would be told
by the DTI by telephone, email, fax or letter.
Can I challenge a decision
to apply the military end-use control?
Yes. If you believe the assessment
is wrong, you should ask for it to be reconsidered. Your
reasons should, of course, be clearly supported.
If I have been informed
that an export may be controlled under the military end
use control, must I apply for a licence?
Yes
If I am aware that
the export meets, or may meet, any of the above criteria,
should I apply for a licence?
Under the Regulation you are
required to inform the authorities so that they can decide
whether to make the export subject to an authorisation (export
licence). If they do, DTI will inform you accordingly.
How do I apply for a licence?
In the same way as for any
export licence. You complete the Export Licence Application
form and send it with the required documentation to the
Export Control Organisation, Licence Reception, 2nd
Floor, 4 Abbey Orchard Street, London SW1P 2HT.
If the ECO informs me that
no licence is required, does that advice apply to all
exports of those items to that destination?
No. ECO's advice would apply
to that export only.
What happens after I apply
for a licence?
We will process the licence
application in the usual way. That is, it will be checked
to ensure it has been completed fully and correctly and
that the necessary technical specifications and documentation
on end use and end user have been supplied. We and our advisers
will then consider the application and, because you would
not have applied for a licence unless you had been informed
or were aware of the possible or intended military end use
of the export in question, we will give it particular scrutiny.
In the light of the information you provide and any other
information available to us, we will consider whether in
our view a licence should be granted
Am I likely to get a licence?
A licence is likely to be refused
if, after detailed assessment, there is judged to be a risk
that either the proposed export of dual use items not otherwise
subject to control:
- is or may be intended, in
its entirety or in part, for incorporation into military
items listed in the military list of the EU Member States,
for its development, production or maintenance, or for
use in a plant for producing it, in a destination subject
to an arms embargo decided by a common position or joint
action adopted by the Council; a decision of the Organisation
for Security and Co-operation in Europe (OSCE); or an
arms embargo imposed by a binding resolution of the Security
Council of the United Nations; or
- is intended for use as parts
or components of military items listed in the military
list of the EU Member State which have been exported from
that Member State without authorisation, whatever the
destination.
But what if, after all this,
the items are stopped at the Port?
HM Customs and Excise have
responsibility for the enforcement of export controls and
may wish to check whether the items to be exported require
a licence. If you applied for a licence but were advised
that no licence was required, tell them. Quote your DTI
or licence application reference number or, even better,
include with your export documentation a copy of the DTI
letter stating that the items do not appear to require a
licence. If Customs nevertheless believe that there may
be grounds for suspicion, they will seek advice from us.
If we find that there are sufficient concerns about the
destination or end use, appropriate action will be taken
depending on the circumstances. This might include us informing
you that you should apply for a licence under the military
end-use control.
I think I understand, but
what if I am uncertain about how the law applies in a particular
case?
If in doubt, seek expert technical and legal advice.
You should also consult ECO if in any doubt.
What if I still have questions?
If you have, please contact
the ECO Helpline with your questions and we will do our
best to answer them.
We will also be pleased to
receive any comments you may have on how this note could
be improved.
ECO Helpline
Department
of Trade and Industry
4 Abbey Orchard
Street
London
SW1P 2HT
Tel: 020 7215 8070
Fax: 020 7215 0558
E-mail: eco.help@dti.gsi.gov.uk
Up to date
information on export controls, including the full text
of the Regulation and a link through to the DUEC, is also
available on ECO’s website. The address is:
http://www.dti.gov.uk/export.control
This Note is
for information only and has no force in law. Please note
that where legal advice is required exporters should make
their own arrangements.
January
2003
Annex
ARTICLE 4(2) OF COUNCIL
REGULATION (EC) 1334/2000:
"An authorisation shall
also be required for the export of dual-use items not listed
in Annex I if the purchasing country or country of destination
is subject to an arms embargo decided by a common position
or joint action adopted by the Council or a decision of
the OSCE or an arms embargo imposed by a binding resolution
of the Security Council of the United Nations and if the
exporter has been informed by the authorities referred to
in paragraph 1 that the items in question are or may be
intended, in their entirety or in part, for a military end-use.
For the purposes of this paragraph, ‘military end-use’ shall
mean:
a. incorporation into military
items listed in the military list of Member States;
b. use of production, test
or analytical equipment and components therefor, for the
development, production or maintenance of military items
listed in the above mentioned list;
c. use of any unfinished products
in a plant for the production of military items listed in
the above mentioned list."
ARTICLE 4(3) OF COUNCIL
REGULATION (EC) 1334/2000:
" An authorisation shall
also be required for the export of dual-use items not listed
in Annex I if the exporter has been informed by the authorities
referred to in paragraph 1 that the items in question are
or may be intended, in their entirety or in part, for use
as parts or components of military items listed in the national
military list that have been exported from the territory
of that Member State without authorisation or in violation
of an authorisation prescribed by national legislation of
that Member State."
ARTICLE 4(4) OF COUNCIL
REGULATION (EC) 1334/2000:
" If an exporter is aware
that the dual-use items which he proposes to export, not
listed in Annex I, are intended, in their entirety or in
part, for any of the uses referred to in paragraphs 1,2
and 3, he must inform the authorities referred to in paragraph
1, which will decide whether or not it is expedient to make
the export concerned subject to authorisation."
REGULATION
4(3)(d)(iii) OF THE DUAL-USE ITEMS (EXPORT CONTROL) REGULATIONS
2000:
" no person shall export
to a destination in a Member State –
(i) any item……
(ii) any item……
(iii) any dual-use items not
listed in Annex I and not Specified in Schedule 2 but for
the export of which from the European Community an authorisation
is required in accordance with Article 4(1), (2) or (3)
or under Article 4(4),
if that person knows at the
time of export that the final destination of those items
is outside the European Community and no processing or working
is to be performed on those items in any Member State to
which they are to be exported."
(1)
O.J.No.L159, 30.6.2000,p1 as last amended by Council Regulation
(EC) No. 880/2002 (OJ L139, 29/5/02)
(2)
see SCR 997(9.6.95) which applies to the sale or supply
of arms and related material to persons in States neighbouring
Rwanda if the sale or supply is for the purpose of the use
of such arms and material within Rwanda.
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