european export control update
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European Export Control Update. Naboth van den Broek Boston, 31 May 2012. EU Export Control Regime - Overview Dual-Use Goods & Technology Military Goods & Technology Sanctions Recent Developments / Update. National rules (27 Member States) Defense & Security= MbS prerogative - PowerPoint PPT PresentationTRANSCRIPT
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European Export Control Update
Naboth van den BroekBoston, 31 May 2012
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1. EU Export Control Regime - Overview
2. Dual-Use Goods & Technology
3. Military Goods & Technology
4. Sanctions
5. Recent Developments / Update
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1. EU Export Control: Overview
National rules (27 Member
States)
Defense & Security= MbS
prerogative
Procedural rules and enforcement
European rules
Trade = EU prerogative
International rules
EU-level “Community” rules
EU-level “intergovernmental” rules (binding and non-binding)
Member States rules expanding scope of EU rules
Autonomous Member State rules
Member State procedural rules
International rules
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2. EU Dual-Use Rules: General
Community (EU) ‘Competence’ Largely regulated at EU level
Regulation 428/2009
Dual-use items are: “… 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.” (Reg. 428/2009)
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EU Dual-Use Rules: Coverage
General Single, regularly updated common list of items requiring export authorization “Catch all” for certain end-uses Items exported to final destination outside EU Some items (“sensitive” or “very sensitive”) are covered even for intra-EU transfer
(see Annex IV parts I and II)
Noteworthy Includes tangible technology (objects, documents, software) and intangible
technology (skills, know-how)
Includes physical transfer and electronic media, fax or phone
Includes “technical assistance”
Includes non-necessary information for patent applications
Includes technology integrated into other products
Non listed dual-use items: authorization may be required
Specific national rules may apply/interpretations may differ
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EU Dual-Use Rules: Procedures
License must be obtained in Member State where the exporter is
established
“Exporter” = person on whose behalf the export declaration is
made / who holds the power to determine the sending of the items
Licensing procedures established by each Member State, including
record-keeping
If multiple Member States involved there is a “consultation” process
(veto!)
Enforcement and Implementation at Member State level
Several types of licenses (“authorizations”)
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3. EU Military Export Controls
Member State “Competence” - however EU rules exist:
– Export outside the EU: Common position 2008/944/CFSP
– Export within the EU: Directive 2009/43
In both cases:
– Items listed in EU Common Military List (not exhaustive + regularly updated) (similar to U.S. ITAR but with some differences)
– License Member State
Bilateral issues
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4. EU Sanctions
EU and Member State legislation
– Enforcement & admin: Member State level
Generally in accordance with international policies (UN, OSCE)
EU sanctions “programs”: Iran, Libya, Syria
EU arms embargos/asset freezes/prohibition of specific services:
Afghanistan, Belarus, China, Eritrea, Iraq, North Korea, Zimbabwe,
terrorists group etc.
Focus on specific items, particularly arms, munitions; but sometimes
broader (technology, financing, specific end-users, flight bans,
investment)
Generally no US-style general embargoes
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Key Regulatory and Other Developments
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1. Dual-Use: Changes to the EU Dual-Use Rules
Annex I to Reg. 428/2009 amended on April 2012 comes into force on 15 June 2012
Regulation 1232/2011 (December 2012): Introduction of five new EU General Authorizations (EU GEAs) (total: 6)
EU001 – exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland (including Liechtenstein) and United States of America EU002 – export of certain dual-use items to certain destinations EU003 – export after repair/replacement EU004 – temporary export for exhibition or fair EU005 – telecommunications EU006 – chemicals
New measures to increase transparency and improve enforcement including possibility to prohibit certain exporters from using EU GEAs.
No EU GEA for Computers & Related Equipment; concern about human rights/monitoring
Reminder: Brokering services covered
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2. Dual-use: EU Green Paper on Dual-Use Goods
Proposed Reform: Amendment expected toward end-2012Key items expected:
Common risk assessment approach of all export control authorities
Improved exchange of info about suspicious transactions and licensing decisions
Phase out NGAs in favour of EU GEAs
Common approach to catch-all controls
Working toward a fully integrated internal market for dual-use items (phase out internal controls)
Coordinated enforcement across the EU + improved access to relevant info for customs enforcement
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3. Sanctions: Significantly more active sanctionslandscape
Sanctions are getting broader (Iran, Syria, Libya, terrorism blacklists)
Basic approach continues to follow the UN, but more active stance and closer coordination with U.S. sanctions policy
Member States continue to play an active role
Judicial Protection continues to be a challenge
Burma: suspended
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4. More active enforcement
Expect to see continued increase in focus on export controls and enforcement
Expect to see continued focus on sanctions
Expect to see more coordinated action (?)
Between MbS
Between policy areas
Focus on broader range of technologies (computers & related equipment, telecom equipment, software)
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5. More opportunities for risk mitigation and cooperation
Active compliance audits but also an increased focus on compliance programs to mitigate risk and reduce penalties
No formal Voluntary Disclosure process, but don’t forget regulatory cooperation…
Judicial Protection (sanctions, Lisbon Treaty)
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6. Don’t forget other EU Regulations!
EU regulatory policy is increasingly wide-spread and has an ever wider product and geographic scope
Beyond export control and sanctions, there are other areas of regulation for US exporters to take into account, including:
Environmental regulations (electrical goods, electronic waste, nanotech, biotech, etc.)
Technical standards and regulations
Competition rules (affecting licensing, reselling, distribution)
Data protection & Privacy
Sanctions for non-compliance can be severe US – EU Trade Cooperation (Working Group / FTA ?)
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Thank you for your attention!
Naboth van den Broek