A product can be perfectly ordinary and still need authorisation to be exported. Dual-use goods have both civil and military applications, and many countries control their export. Finding this out once the goods are at the port means delays, seizures and, in serious cases, criminal liability.
The European Union regime
Regulation (EU) 2021/821 of 20 May 2021 sets up the Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items. It was published in the Official Journal L 206 on 11 June 2021 and came into force on 9 September 2021, replacing Regulation 428/2009.
What the 2021 regulation changed
The UK government's official notice, which summarises the text, highlights these changes:
- New catch-all controls: authorisation can be required for items that are not on the lists, depending on end use or end user.
- Cyber-surveillance items, with their own controls.
- National control lists: Member States may extend requirements to unlisted items, so the regime is not identical across the Union.
- Two new general export authorisations, including one for intra-group transfers of software and technology, which requires an internal compliance programme.
- Encryption and technical assistance, including military end use.
- More information exchange and transparency between authorities.
Questions to ask before you sell
- Is the product on the control list? Look for the control code in the official list and ask the manufacturer for it.
- Who is the end user and what will it be used for? An unlisted product may need authorisation if there is a risk of military use or a sensitive destination.
- Are the destination or the recipient under sanctions? Export controls and sanctions are different regimes and apply at the same time.
- Are there red flags? A destination or intermediary that does not fit the product, refusal to name the end user, payments from third parties, an odd route.
- Is the deal triangular? Brokering and transit can also be covered, even if the goods never touch the Union.
Other countries keep their own regimes, with different lists and criteria. Before a deal involving sensitive goods, confirm the classification and the need for authorisation with the competent authority of the exporting country. This article is informational and is not legal advice.
Cover photo: Giovanna 27, CC BY 4.0, Wikimedia Commons.