New Dual-Use Items Regulation enters into force

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New Dual-Use Items Regulation enters into force

The legislation expands on the requirements for enterprises trading dual-use items outside of the territory of the customs Union

The Recast, which entered into force on 9 September 2021, updates and amends previous Regulation 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual use-items. New obligations applicable to export authorization applications made from 9 September include updates to the definition of exporter and new definitions for provider of technical assistance and brokering, as well as obligations related to non-listed and cyber-surveillance items.

Exporter

The Recast expands on the definition of ‘exporter’ to include natural persons carrying dual-use items in their personal baggage. Furthermore the legal or natural person or relationship that makes software or technology available by electronic media means outside the territory of the customs Union other than by transmitting it through electronic means, such as email (which was already covered) is also considered an exporter. The oral transmission of technology now covers all means of voice transmission, including, but is not limited to, describing the technology by telephone or online meeting applications.

Brokering services

With regards to the term ‘brokering services’, the update now includes also brokers who are resident or established outside the territory of the customs Union, but provide brokering services from within, who are also obliged by the Recast.

Provider of technical assistance

The term ‘provider of technical assistance’, which was not considered in the previous Regulation, has been introduced. It covers any natural or legal person or partnership that (a) provides technical assistance from the territory of the customs Union to third countries; (b) is residing or established in a Member State of the Union and provides technical assistance in a third country; and (c) provides technical assistance to residents of third countries present in the territory of the customs Union. ‘Technical assistance’ can take form of repairs, development, manufacture, assembly, testing, maintenance, or any other technical service, encompassing also providing instruction, advice, training, transmission of working knowledge or skills or consulting services, including electronic and telephone forms of assistance.

However, export controls apply to them only in cases of weapons of mass or arms that have embargoed countries. If you intent to provide technical assistance for dual-use items and are aware that the items may be used as weapons of mass destruction or for military end-use in countries subject to an arms embargo, you need to notify the competent authority, who will decide whether to make the export subject to an authorization. This export control is subject to some exceptions, including when:

  •  The technical assistance is provided within or into the territory of Australia, Canada, Iceland, Japan, New Zealand, Norway, Switzerland, Liechtenstein, the United Kingdom, or the United States of America;
  •  It takes the form of transferring information which is in the public domain or basic scientific research;
  • Is the minimum necessary for the installation, operation, maintenance or repair of those items for which you previously obtained an authorization for export.

Transit

The meaning of ‘transit’ remains being the transport of non-Union dual-use items which are brought into the territory of the customs Union and are transported through the Union with the purpose of carrying them to a final destination outside the Union. However, the updated definition limits to which scenarios it can be considered ‘transit’.

Moreover, national authorities can now forbid or impose the obligation to request an authorization for the transit of non-Union dual-use items if the use is, or may be intended, for biological, chemical or nuclear weapons or other nuclear explosive devices, for military end-use if the country of destination is subject to an arms embargo, or for use as parts or components of military items listed in the national military lists that have been exported without, or in violation with, an authorization.

When the natural or legal person or partnership[ is not resident or established in the territory of the customs Union, the national authority can impose the obligation to obtain an authorization on the declarant, the carrier or the natural person carrying the goods in the baggage of that person.

Cyber-surveillance items

The Recast includes the new term of cyber-surveillance item, which are dual-use items specially designed to allow covert surveillance of natural persons by monitoring, extracting, collecting or analyzing data from information and telecommunication systems.

With regards to your obligations as an exporter of cyber-surveillance items, the Recast introduces an umbrella clause under which you need an authorization for the export of non-listed cyber-surveillance items if the competent authority has informed you that the items in question can be used for purposes of internal repression or in connection with violations of human rights and humanitarian law.

The competent authority must be notified, which may require you to obtain an authorization prior to the export of the cyber-surveillance items, if, after having conducted internal due diligence, you are aware that the items are or may be intended for any of the outlined uses mentioned hereinbefore.

Authorizations

The Recast maintains the individual and global export authorizations, and national and Union General Export Authorizations (UGEAs). However, it clarifies that if the exporter is not resident nor established in the territory of the Union, it must request an individual export authorization from the national authority of the country where the relevant dual-use items are located. In the Netherlands you need an Internal Compliance Program (ICP) if you request a global export authorization. Each Member State of the Union can decide whether to implement the obligation to have in place an ICP or not. You do not need one in place if you only apply for a individual or general export licenses, except for the EU007.

Another novelty is the introduction of two new types of UGEAs: intra-group export of software and technology (EU007) and encryption systems (EU008). You will need EU007 for the export of the majority of dual-use items listed in Annex I, but not for those included in Section I of Annex II nor for a few other items as referenced in Annex IIG; whereas EU008 is necessary for exports of encryption items to all destinations except for those included in Annex IIH part 2.

Lastly, the Recast introduces the large project authorization. You may request this individual or global authorization for a type or category of dual-use items, which you can use to exports to one or more specific end-users in one or more third countries. The competent authority will determine the duration of the authorization, of up to four years.

Retention period

As an exporter or broker, you must keep detailed registers of your exports and records of your brokering services for at least five years. For documents and records of transfers within the Union, the period remains unchanged at three years.

What relevance does the Recast have for your business?

At Deloitte we strive to support your business grow and remain compliant. We recommend you assess whether your business deals with products related to cyber-surveillance, or provides technical assistance. If you are involved in large projects, you may be eligible for the new Union General Export Authorization or large project authorization. Deloitte can support you in assessing whether you need an authorization, and which one you may need. Furthermore, we can assist you in keeping track of any changes to national legislation in export controls, as well as implementing an Internal Compliance Program in your business.

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