Regulation (EU) 2019/125 of the European Parliament and of the Council of 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (codification)

CHAPTER I

SUBJECT MATTER AND DEFINITIONS

Article 1

Subject matter

This Regulation lays down Union rules governing trade with third countries in goods that could be used for the purpose of capital punishment or for the purpose of torture or other cruel, inhuman or degrading treatment or punishment, and rules governing the supply of brokering services, technical assistance, training and advertising related to such goods.

Article 2

Definitions

For the purposes of this Regulation:

(a) ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from that person or from a third person information or a confession, punishing that person for an act that either that person or a third person has committed or is suspected of having committed, or intimidating or coercing that person or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted either by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. It does not, however, include pain or suffering arising only from, inherent in or incidental to, lawful penalties. Capital punishment is not deemed a lawful penalty under any circumstances;

(b) ‘other cruel, inhuman or degrading treatment or punishment’ means any act by which pain or suffering attaining a minimum level of severity, whether physical or mental, is inflicted on a person, when such pain or suffering is inflicted either by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. It does not, however, include pain or suffering arising only from, inherent in or incidental to, lawful penalties. Capital punishment is not deemed a lawful penalty under any circumstances;

(c) ‘law enforcement authority’ means any authority responsible for preventing, detecting, investigating, combating and punishing criminal offences, including, but not limited to, the police, any prosecutor, any judicial authority, any public or private prison authority and, where appropriate, any of the state security forces and military authorities;

(d) ‘export’ means any departure of goods from the customs territory of the Union, including the departure of goods that requires a customs declaration and the departure of goods after their storage in a free zone within the meaning of Regulation (EU) No 952/2013 of the European Parliament and of the Council (¹);

(e) ‘import’ means any entry of goods into the customs territory of the Union, including temporary storage, the placing in a free zone, the placing under a special procedure and the release for free circulation within the meaning of Regulation (EU) No 952/2013;

(f) ‘technical assistance’ means any technical support related to repairs, development, manufacture, testing, maintenance, assembly or any other technical service, and may take forms such as instruction, advice, training, transmission of working knowledge or skills or consulting services. Technical assistance includes verbal forms of assistance and assistance provided by electronic means;

(g) ‘museum’ means a non-profit making, permanent institution in the service of society and of its development, and open to the public, which acquires, conserves, researches, communicates and exhibits, for purposes of study, education and enjoyment, material evidence of people and their environment;

(h) ‘competent authority’ means an authority of one of the Member States, as listed in Annex I, which is, in accordance with Article 20, entitled to make a decision on an application for an authorisation or to prohibit an exporter from using the Union general export authorisation;

(i) ‘applicant’ means: (1) the exporter, in the case of exports referred to in Article 3, 11 or 16; (2) the natural or legal person, entity or body transporting the goods within the customs territory of the Union, in the case of transit referred to in Article 5; (3) the supplier of technical assistance, in the case of supplies of technical assistance referred to in Article 3; (4) the museum that will display the goods, in the case of imports and supplies of technical assistance referred to in Article 4; (5) the supplier of technical assistance or the broker, in the case of supplies of technical assistance referred to in Article 15 or brokering services referred to in Article 19;

(j) ‘customs territory of the Union’ means the territory as laid down in Article 4 of Regulation (EU) No 952/2013;

(k) ‘brokering services’ means: (1) the negotiation or arrangement of transactions for the purchase, sale or supply of relevant goods from a third country to any other third country, or (2) the selling or buying of relevant goods that are located in a third country 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;

(l) ‘broker’ means any natural or legal person, entity or body, including a partnership, resident or established in a Member State that supplies services defined under point (k) from within the Union; any natural person having the nationality of a Member State, wherever resident, who supplies such services from within the Union; and any legal person, entity or body incorporated or constituted under the law of a Member State, wherever established, that supplies such services from within the Union;

(m) ‘supplier of technical assistance’ means any natural or legal person, entity or body, including a partnership, resident or established in a Member State that supplies technical assistance defined under point (f) from within the Union; any natural person having the nationality of a Member State, wherever resident, who supplies such assistance from within the Union; and any legal person, entity or body incorporated or constituted under the law of a Member State, wherever established, that supplies such assistance from within the Union;

(n) ‘exporter’ means any natural or legal person, entity or body, including a partnership, on whose behalf an export declaration is made, that is to say the person, entity or body, who, at the time when the export declaration is accepted, holds a contract with the consignee in the third country concerned and has the necessary power for determining the sending of the goods out of the customs territory of the Union. If no such contract has been concluded or if the holder of that contract does not act on its own behalf, the exporter means the person, entity or body who has the necessary power for determining the sending of the goods out of the customs territory of the Union. Where the benefit of a right to dispose of the goods belongs to a person, entity or body resident or established outside the Union pursuant to that contract, the exporter shall be considered to be the contracting party resident or established in the Union;

(o) ‘Union General Export Authorisation’ means an authorisation for exports as defined under point (d) to certain countries which is available to all exporters who respect conditions and requirements for its use as listed in Annex V;

(p) ‘individual authorisation’ means an authorisation granted to: (1) one specific exporter for exports as defined under point (d) to one end-user or consignee in a third country and covering one or more goods; (2) one specific broker for the supply of brokering services as defined under point (k) to one end-user or consignee in a third country and covering one or more goods; or (3) a natural or legal person, entity or body transporting goods within the customs territory of the Union for transit as defined under point (s);

(q) ‘global authorisation’ means an authorisation granted to one specific exporter or broker in respect of a type of goods listed in Annex III or in Annex IV, which may be valid for: (1) exports as defined under point (d) to one or more specified end-users in one or more specified third countries; (2) exports as defined under point (d) to one or more specified distributors in one or more specified third countries, where the exporter is a manufacturer of goods included in point 3.2 or 3.3. of Annex III or in Section 1 of Annex IV; (3) the supply of brokering services related to transfers of goods which are located in a third country, to one or more specified end-users in one or more specified third countries; (4) the supply of brokering services related to transfers of goods which are located in a third country, to one or more specified distributors in one or more specified third countries, where the broker is a manufacturer of goods included in point 3.2 or 3.3. of Annex III or in Section 1 of Annex IV;

(r) ‘distributor’ means an economic operator performing wholesale activities in relation to goods listed in point 3.2 or 3.3 of Annex III or in Section 1 of Annex IV, such as procuring such goods from manufacturers or holding, supplying or exporting such goods; wholesale activities of such goods do not include procurement by either a hospital, a pharmacist or a medical professional for the sole purpose of supplying such goods to the public;

(s) ‘transit’ means a transport within the customs territory of the Union of non-Union goods which pass through the customs territory of the Union with a destination outside the customs territory of the Union.

CHAPTER II

GOODS WHICH HAVE NO PRACTICAL USE OTHER THAN FOR THE PURPOSES OF CAPITAL PUNISHMENT, TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Article 3

Export prohibition

Annex II shall comprise goods which have no practical use other than for the purpose of capital punishment or for the purpose of torture and other cruel, inhuman or degrading treatment or punishment.

A supplier of technical assistance shall be prohibited from supplying technical assistance related to goods listed in Annex II to any person, entity or body in a third country, whether for consideration or not.

Article 4

Import prohibition

The acceptance by a person, entity or body in the Union of technical assistance related to goods listed in Annex II supplied from a third country, whether for consideration or not, by any person, entity or body shall be prohibited.

Article 5

Prohibition of transit

Article 6

Prohibition of brokering services

A broker shall be prohibited from supplying to any person, entity or body in a third country, brokering services in relation to goods listed in Annex II, irrespective of the origin of such goods.

Article 7

Prohibition of training

A supplier of technical assistance or a broker shall be prohibited from supplying or offering to any person, entity or body in a third country, training on the use of goods listed in Annex II.

Article 8

Trade fairs

It shall be prohibited for any natural or legal person, entity or body, including a partnership, whether resident or established in a Member State or not, to display or offer for sale any of the goods listed in Annex II in an exhibition or fair taking place in the Union, unless it is demonstrated that, given the nature of the exhibition or fair, such display or offering for sale is neither instrumental in nor promotes the sale or supply of the relevant goods to any person, entity or body in a third country.

Article 9

Advertising

It shall be prohibited for any natural or legal person, entity or body, including a partnership, that is resident or established in a Member State and sells or purchases advertising space or advertising time from within the Union, for any natural person who has the nationality of a Member State and sells or purchases advertising space or advertising time from within the Union, and for any legal person, entity or body incorporated or constituted under the law of a Member State, that sells or purchases advertising space or advertising time from within the Union, to sell to or purchase from any person, entity or body in a third country advertising space in print media or on the Internet or advertising time on television or radio in relation to goods listed in Annex II.

Article 10

National measures

CHAPTER III

GOODS THAT COULD BE USED FOR THE PURPOSE OF TORTURE OR OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

Article 11

Export authorisation requirement

Annex III shall only comprise the following goods that could be used for the purpose of torture or other cruel, inhuman or degrading treatment or punishment:

(a) goods which are primarily used for law enforcement purposes;

(b) goods which, taking into account their design and technical features, present a material risk of use for torture or other cruel, inhuman or degrading treatment or punishment.

Annex III shall not include:

(a) firearms controlled by Regulation (EU) No 258/2012;

(b) dual-use items controlled by Regulation (EC) No 428/2009;

(c) goods controlled in accordance with Common Position 2008/944/CFSP.

Article 12

Criteria for granting export authorisations

The competent authority shall take into account:

(a) available international court judgements;

(b) findings of the competent bodies of the UN, the Council of Europe and the EU, and reports of the Council of Europe's European Committee for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment and of the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment.

Other relevant information, including available national court judgements, reports or other information prepared by civil society organisations and information on restrictions on exports of goods listed in Annexes II and III applied by the country of destination, may be taken into account.

If the manufacturer of goods listed in point 3.2 or 3.3 of Annex III requests an authorisation for exporting such goods to a distributor, the competent authority shall make an assessment of the contractual arrangements made by the manufacturer and the distributor and of the measures that they are taking to ensure that these goods and, if applicable, the products in which they will be incorporated will not be used for torture or other cruel, inhuman or degrading treatment or punishment.

If an authorisation is requested for exporting goods listed in point 3.2 or 3.3 of Annex III to an end-user, the competent authority may, when assessing the risk of diversion, take into account the contractual arrangements that apply and the end-use statement signed by the end-user, if such a statement is provided. If no end-use statement is provided, it shall be up to the exporter to demonstrate who will be the end-user and what use will be made of the goods. If the exporter fails to provide sufficient information on the end-user and the end-use, the competent authority shall be deemed to have reasonable grounds to believe that the goods might be used for torture or other cruel, inhuman or degrading treatment or punishment.

Article 13

Prohibition of transit

A natural or legal person, entity or body, including a partnership, whether resident or established in a Member State or not, shall be prohibited from executing the transit of goods listed in Annex III, if he, she or it knows that any part of a shipment of such goods is intended to be used for torture or other cruel, inhuman or degrading treatment or punishment in a third country.

Article 14

National measures

Article 15

Authorisation requirement for certain services

An authorisation shall be required for any supply, by a supplier of technical assistance or a broker, respectively, of one of the following services to any person, entity or body in a third country, whether for consideration or not:

(a) technical assistance related to goods listed in Annex III, irrespective of the origin of such goods; and

(b) brokering services related to goods listed in Annex III, irrespective of the origin of such goods.

When deciding on applications for an authorisation for the supply of technical assistance related to goods listed in Annex III, the criteria set out in Article 12 shall be taken into account to assess:

(a) whether the technical assistance would be supplied to a person, entity or body that might use the goods to which the technical assistance relates for torture or other cruel, inhuman or degrading treatment or punishment; and

(b) whether the technical assistance would be used to repair, develop, manufacture, test, maintain or assemble goods listed in Annex III for, or to supply technical assistance to, a person, entity or body that might use the goods to which the technical assistance relates for torture or other cruel, inhuman or degrading treatment or punishment.

Paragraph 1 shall not apply to the supply of technical assistance, if

(a) the technical assistance is supplied to a law enforcement authority of a Member State or to military or civil personnel of a Member State as described in the first sentence of Article 11(3);

(b) the technical assistance consists of providing information that is in the public domain; or

(c) the technical assistance is the minimum necessary for the installation, operation, maintenance or repair of those goods listed in Annex III whose export has been authorised by a competent authority in accordance with this Regulation.

CHAPTER IV

GOODS THAT COULD BE USED FOR THE PURPOSE OF CAPITAL PUNISHMENT

Article 16

Export authorisation requirement

Annex IV shall only comprise goods that could be used for the purpose of capital punishment and have been approved or actually used for capital punishment by one or more third countries that have not abolished capital punishment. It shall not include:

(a) firearms controlled by Regulation (EU) No 258/2012;

(b) dual-use items controlled by Regulation (EC) No 428/2009 and

(c) goods controlled in accordance with Common Position 2008/944/CFSP.

Article 17

Criteria for granting export authorisations

If the manufacturer of goods listed in Section 1 of Annex IV requests an authorisation for exporting such products to a distributor, the competent authority shall make an assessment of the contractual arrangements made by the manufacturer and the distributor and of the measures that they are taking to ensure that the goods will not be used for capital punishment.