Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (recast)

CHAPTER I

SUBJECT AND DEFINITIONS

Article 1

This Regulation sets up a Community regime for the control of exports, transfer, brokering and transit of dual-use items.

Article 2

For the purposes of this Regulation:

(i) an export procedure within the meaning of Article 161 of Regulation (EEC) No 2913/92 (the Community Customs Code); (ii) a re-export within the meaning of Article 182 of that Code but not including items in transit; and (iii) transmission of software or technology by electronic media, including by fax, telephone, electronic mail or any other electronic means to a destination outside the European Community; it includes making available in an electronic form such software and technology to legal and natural persons and partnerships outside the Community. Export also applies to oral transmission of technology when the technology is described over the telephone;

(i) on whose behalf an export declaration is made, that is to say the person who, at the time when the declaration is accepted, holds the contract with the consignee in the third country and has the power for determining the sending of the item out of the customs territory of the Community. If no export contract has been concluded or if the holder of the contract does not act on its own behalf, the exporter shall mean the person who has the power for determining the sending of the item out of the customs territory of the Community; (ii) which decides to transmit or make available software or technology by electronic media including by fax, telephone, electronic mail or by any other electronic means to a destination outside the Community. Where the benefit of a right to dispose of the dual-use item belongs to a person established outside the Community pursuant to the contract on which the export is based, the exporter shall be considered to be the contracting party established in the Community;

— the negotiation or arrangement of transactions for the purchase, sale or supply of dual-use items from a third country to any other third country, or — the selling or buying of dual-use items that are located in third countries for their transfer to another third country. For the purposes of this Regulation the sole provision of ancillary services is excluded from this definition. Ancillary services are transportation, financial services, insurance or re-insurance, or general advertising or promotion;

CHAPTER II

SCOPE

Article 3

Article 4

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  imposed by a decision or a common position adopted by the Council or a decision of the Organisation for Security and Cooperation in Europe (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 abovementioned list;

(c) use of any unfinished products in a plant for the production of military items listed in the abovementioned list.

Article 5

Article 6

Article 7

This Regulation does not apply to the supply of services or the transmission of technology if that supply or transmission involves cross-border movement of persons.

Article 8

CHAPTER III

EXPORT AUTHORISATION AND AUTHORISATION FOR BROKERING SERVICES

Article 9

The competent authorities of the Member State where the exporter is established can prohibit the exporter from using these authorisations if there is reasonable suspicion about his ability to comply with such authorisation or with a provision of the export control legislation.

The competent authorities of the Member States shall exchange information on exporters deprived of the right to use a Union General Export Authorisation, unless they determine that the exporter will not attempt to export dual-use items through another Member State. The system referred to in Article 19(4) shall be used for this purpose.

In order to ensure that only low-risk transactions are covered by the Union General Export Authorisations included in Annexes IIa to IIf, the Commission shall be empowered to adopt delegated acts in accordance with Article 23a to remove destinations from the scope of those Union General Export Authorisations, if such destinations become subject to an arms embargo as referred to in Article 4(2).

Where, in cases of such arms embargoes, imperative grounds of urgency require a removal of particular destinations from the scope of a Union General Export Authorisation, the procedure provided for in Article 23b shall apply to delegated acts adopted pursuant to this paragraph.

For all other exports for which an authorisation is required under this Regulation, such authorisation shall be granted by the competent authorities of the Member State where the exporter is established. Subject to the restrictions specified in paragraph 4, this authorisation may be an individual, global or general authorisation.

All the authorisations shall be valid throughout the Community.

Exporters shall supply the competent authorities with all relevant information required for their applications for individual and global export authorisation so as to provide complete information to the national competent authorities in particular on the end user, the country of destination and the end use of the item exported. The authorisation may be subject, if appropriate, to an end-use statement.

National general export authorisations shall:

(a) exclude from their scope items listed in Annex IIg;

(b) be defined by national law or practice. They may be used by all exporters, established or resident in the Member State issuing these authorisations, if they meet the requirements set in this Regulation and in the complementary national legislation. They shall be issued in accordance with the indications set out in Annex IIIc. They shall be issued according to national law or practice; Member States shall notify the Commission immediately of any national general export authorisations issued or modified. The Commission shall publish these notifications in the C series of the Official Journal of the European Union;

(c) not be used if the exporter has been informed by his authorities that the items in question are or may be intended, in their entirety or in part, for any of the uses referred to in paragraphs 1 and 3 of Article 4 or in paragraph 2 of Article 4 in a country subject to an arms embargo  imposed by a decision or a common position 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, or if the exporter is aware that the items are intended for the abovementioned uses.

Member States shall supply the Commission with a list of the authorities empowered to:

(a) grant export authorisations for dual-use items;

(b) decide to prohibit the transit of non-Community dual-use items under this Regulation.

The Commission shall publish the list of these authorities in the C series of the Official Journal of the European Union.

Article 10

Article 11

If the dual-use items in respect of which an application has been made for an individual export authorisation to a destination not listed in  Annex IIa or to any destination in the case of dual-use items listed in Annex IV are or will be located in one or more Member States other than the one where the application has been made, that fact shall be indicated in the application. The competent authorities of the Member State to which the application for authorisation has been made shall immediately consult the competent authorities of the Member State or States in question and provide the relevant information. The Member State or States consulted shall make known within 10 working days any objections it or they may have to the granting of such an authorisation, which shall bind the Member State in which the application has been made.

If no objections are received within 10 working days, the Member State or States consulted shall be regarded as having no objection.

In exceptional cases, any Member State consulted may request the extension of the 10-day period. However, the extension may not exceed 30 working days.

Article 12

In deciding whether or not to grant an individual or global export authorisation or to grant an authorisation for brokering services under this Regulation, the Member States shall take into account all relevant considerations including:

(a) the obligations and commitments they have each accepted as members of the relevant international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties;

(b) their obligations under sanctions imposed by  a decision or a common position adopted by the Council or by a decision of the OSCE or by a binding resolution of the Security Council of the United Nations;

(c) considerations of national foreign and security policy, including those covered by Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment (¹);

(d) considerations about intended end use and the risk of diversion.

Article 13

Article 14

CHAPTER IV

UPDATING OF LIST OF DUAL-USE ITEMS

Article 15

CHAPTER V

CUSTOMS PROCEDURES

Article 16

Without prejudice to any powers conferred on it under, and pursuant to, the Community Customs Code, a Member State may also, for a period not exceeding the periods referred to in paragraph 4, suspend the process of export from its territory, or, if necessary, otherwise prevent the dual-use items listed in Annex I which are covered by a valid export authorisation from leaving the Community via its territory, where it has grounds for suspicion that:

(a) relevant information was not taken into account when the authorisation was granted, or

(b) circumstances have materially changed since the grant of the authorisation.

Article 17

Article 18

The provisions of Articles 843 and 912a to 912g of Regulation (EEC) No 2454/93 shall apply to the restrictions relating to the export, re-export and exit from the customs territory of dual-use items for the export of which an authorisation is required under this Regulation.

CHAPTER VI

ADMINISTRATIVE COOPERATION

Article 19

Member States shall take all appropriate measures to establish direct cooperation and exchange of information between competent authorities with a view to enhance the efficiency of the Community export control regime. Such information may include:

(a) details of exporters deprived, by national sanctions, of the right to use the national general export authorisations or  Union General Export Authorisations;

(b) data on sensitive end users, actors involved in suspicious procurement activities, and, where available, routes taken.

CHAPTER VII

CONTROL MEASURES

Article 20

Exporters of dual-use items shall keep detailed registers or records of their exports, in accordance with the national law or practice in force in the respective Member States. Such registers or records shall include in particular commercial documents such as invoices, manifests and transport and other dispatch documents containing sufficient information to allow the following to be identified:

(a) the description of the dual-use items;

(b) the quantity of the dual-use items;

(c) the name and address of the exporter and of the consignee;

(d) where known, the end-use and end-user of the dual-use items.

Article 21

In order to ensure that this Regulation is properly applied, each Member State shall take whatever measures are needed to permit its competent authorities:

(a) to gather information on any order or transaction involving dual-use items;

(b) to establish that the export control measures are being properly applied, which may include in particular the power to enter the premises of persons with an interest in an export transaction or brokers involved in the supply of brokering services under circumstances set out in Article 5.

CHAPTER VIII

OTHER PROVISIONS

Article 22

A Member State may impose an authorisation requirement for the transfer of other dual-use items from its territory to another Member State in cases where at the time of transfer:

— the operator knows that the final destination of the items concerned is outside the Community,

— export of those items to that final destination is subject to an authorisation requirement pursuant to Articles 3, 4 or 8 in the Member State from which the items are to be transferred, and such export directly from its territory is not authorised by a general authorisation or a global authorisation,

— no processing or working as defined in Article 24 of the Community Customs Code is to be performed on the items in the Member State to which they are to be transferred.

Article 23

A Dual-Use Coordination Group chaired by a representative of the Commission shall be set up. Each Member State shall appoint a representative to this Group.

It shall examine any question concerning the application of this Regulation which may be raised either by the chair or by a representative of a Member State.

Article 23a

Article 23b

Article 24

Each Member State shall take appropriate measures to ensure proper enforcement of all the provisions of this Regulation. In particular, it shall lay down the penalties applicable to infringements of the provisions of this Regulation or of those adopted for its implementation. Those penalties must be effective, proportionate and dissuasive.

Article 25

Special sections of the report shall deal with:

(a) the Dual-Use Coordination Group and its activities. Information that the Commission provides on the Dual-Use Coordination Group’s examinations and consultations shall be treated as confidential pursuant to Article 4 of Regulation (EC) No 1049/2001. Information shall in any case be considered to be confidential if its disclosure is likely to have a significantly adverse effect upon the supplier or the source of such information;

(b) the implementation of Article 19(4), and shall report on the stage reached in the set-up of the secure and encrypted system for the exchange of information between Member States and the Commission;

(c) the implementation of Article 15(1);

(d) the implementation of Article 15(2);

(e) comprehensive information provided on the measures taken by the Member States pursuant to Article 24 and notified to the Commission under paragraph 1 of this Article.

Article 25a

Without prejudice to the provisions on mutual administrative assistance agreements or protocols in customs matters concluded between the Union and third countries, the Council may authorise the Commission to negotiate with third countries agreements providing for the mutual recognition of export controls of dual-use items covered by this Regulation and in particular to eliminate authorisation requirements for re-exports within the territory of the Union. These negotiations shall be conducted in accordance with the procedures established in Article 207(3) of the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community, as appropriate.

Article 26

This Regulation does not affect:

— the application of Article 296 of the Treaty establishing the European Community,