Control of Exports Act 2023

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Control of Exports Act 2023.

(2) This Act shall come into operation on such day or days as the Minister may by order or orders appoint either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation

2. (1) In this Act—

“Act of 2008” means the Control of Exports Act 2008;

“adjudicator” has the meaning given to it by section 39; “appellant” has the meaning given to it by section 43;

“applicant” means a person who applies under Part 4 for an authorisation; “authorisation” means an authorisation to undertake a relevant activity;

“basic scientific research” has the same meaning as it has in the General Technology Note or the Nuclear Technology Note set out in Annex I;

“broker”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22; “brokering services”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22;

“company” means a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act;

“compliance notice” means a compliance notice given under section 61;

“Council Common Position 2008/944/CFSP” means Council Common Position 2008/944/CFSP of 8 December 2008[^2] defining common rules governing control of exports of military technology and equipment amended by Council Decision (CFSP) 2019/1560[^3];

“cyber-surveillance item” has the same meaning as it has in Article 2;

“Defence Forces” has the same meaning as it has in section 2 of the Defence Act 1954;

“dual-use item” has the same meaning as it has in Article 2;

“Dual-use Regulation” means Council Regulation (EU) No. 2021/821 of 20 May 2021[^4] setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast) amended by Regulation (EU) 2016/2339 of the European Parliament and of the Council of 14 December 2016[^5], Regulation (EU) 2019/474 of the European Parliament and of the Council of 19 March 2019[^6], Regulation (EU) 2019/632 of the European Parliament and of the Council of 17 April 2019[^7], Regulation (EU) 2022/2399 of the European Parliament and of the Council of 23 November 2022[^8], Commission Delegated Regulation (EU) 2022/1 of 20 October 2021[^9] and Commission Delegated Regulation (EU) 2022/699 of 2 May 2022[^10];

“export”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22; “exporter”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22;

“General Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016[^11] on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

“in the public domain” has the same meaning as it has in the General Technology Note or the Nuclear Technology Note set out in Annex I;

“International United Nations Force” has the same meaning as it has in the Defence (Amendment) Act 2006;

“military end-use” means—

(a) incorporation into a military item or an item on the national military list of another Member State,

(b) use of production, test or analytical equipment and components therefor, for the development, production or maintenance of a military item or an item on the national military list of another Member State, or

(c) use of any unfinished products in a plant for the production of a military item or an item on the national military list of another Member State;

“military item” has the meaning given to it by section 23(2); “Minister” means the Minister for Enterprise, Trade and Employment;

“multilateral non-proliferation regimes” means the Australia Group, Missile Technology Control Regime, Nuclear Suppliers Group, Wassenaar Arrangement, Zangger Committee and the Chemical Weapons Convention;

“national military export control list” means the list for the time being prescribed under section 23(1);

“national military list of another Member State” means a military list established by a Member State other than the State which has the same force and effect in that Member State as the national military export control list;

“Order of 2009” means the Control of Exports (Dual Use Items) Order 2009 (S.I. No. 443 of 2009);

“personal data” has the same meaning as it has in the General Data Protection Regulation;

“prescribed” means prescribed by regulations made by the Minister; “provider of technical assistance” has the same meaning as it has in Article 2;

“record” means any memorandum, book, plan, map, drawing, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or images or both), any form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically and anything that is a part, copy, transcript or reproduction in any form, of any of the foregoing or is a combination of two or more of any of the foregoing;

“Regulations of 2018” means the Control of Exports (Appeals) Regulations 2018 (S.I. No. 457 of 2018);

“Regulations of 2021” means the Control of Exports (Brokering Activities, Goods and Technology) Regulations 2021 (S.I. No. 207 of 2021);

“relevant activity”, in so far as an authorisation is required for the activity under the Dual-use Regulation or Part 2 or Part 3, means—

(a) the export of a relevant item,

(b) the provision of brokering services in respect of a relevant item,

(c) the provision of technical assistance in respect of a dual-use item,

(d) the transit of a relevant item, or

(e) the transfer of a dual-use item from the State to a Member State other than the State;

“relevant decision” means a decision under—

(a) paragraph (b) or (c) of subsection (4) or subsection (8) of section 29,

(b) subsection (5) or (7) of section 34, or

(c) subsection (5) or (7) of section 35; “relevant item” means—

(a) a dual-use item or cyber-surveillance item in respect of which an authorisation is required under the Dual-use Regulation or Part 2, or

(b) a military item in respect of which an authorisation is required under Part 3;

“relevant material” means any decision, evidence, document, material or other matter that—

(a) is relevant to an appeal under section 43 or 50, any further appeal following such an appeal or an application under section 51,

(b) is not publicly available, and

(c) relates to the security or public order of the State; “relevant notice” means a notice under—

(a) subsection (3), (4), (6) or (7) of section 10,

(b) subsection (2) or (4) of section 14, or

(c) subsection (2) or (4) of section 16; “relevant person” means—

(a) an exporter, broker or person who transits a relevant item,

(b) a provider of technical assistance in respect of a dual-use item, or

(c) a person who transfers a dual-use item from the State to a Member State other than the State;

“technical assistance” has the same meaning as it has in Article 2;

“technical data” includes blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals and instruction in writing or recorded on media or devices such as disk, tape or read only memories;

“technology” means specific information necessary for the development, production or operation, installation, maintenance, repair, overhaul or refurbishing of a dual-use or military item, which information takes the form of technical data or technical assistance;

“third country” means a country or territory other than the State or another Member State;

“transit”—

(a) in so far as it relates to a dual-use item, has the meaning given to it by section 9, and

(b) in so far as it relates to a military item, has the meaning given to it by section 22;

“Union Customs Code” means Regulation (EU) No. 952/2013 of the European Parliament and of the Council of 9 October 2013[^12] laying down the Union Customs Code (recast).

(2) In this Act—

(a) a reference to a numbered Article is a reference to the Article so numbered of the Dual-use Regulation, and

(b) a reference to a numbered Annex is a reference to the Annex so numbered of the Dual-use Regulation.

(3) A word or expression that is used in this Act and is also used in the Union Customs Code, the Dual-use Regulation or Council Common Position 2008/944/CFSP, has, unless the context otherwise requires, the same meaning in this Act as it has in the Union Customs Code, the Dual-use Regulation or Council Common Position 2008/944/CFSP.

3. Competent authority

3. The Minister shall be the competent authority in the State for the purposes of the Dual-use Regulation.

4. Reporting on operation of Act

4. (1) The Minister shall—

(a) cause a report to be prepared on the operation of this Act not more than 15 months after this section comes into operation and not less than once every 12 months thereafter, and

(b) cause a copy of the report to be laid before each House of the Oireachtas as soon as practicable after it has been prepared.

(2) A report prepared under this section shall, subject to subsection (3), include—

(a) aggregated details on the number of applications for and grants of authorisations,

(b) aggregated details on the number of relevant notices given,

(c) aggregated details on the number of directions given under Part 2 or Part 3,

(d) aggregated details on enforcement, including the number of compliance notices given,

(e) information on sectoral trends in policy relating to dual-use or military items, and

(f) any other matters relating to the operation of this Act that the Minister considers to be relevant.

(3) A report under this section shall not include—

(a) commercially sensitive information,

(b) personal data, or

(c) information the disclosure of which would create a risk to the security or public order of the State.

5. Regulations

5. (1) The Minister may, having consulted with such other Minister of the Government as he or she considers appropriate, by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations under this section may—

(a) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations, and

(b) apply either generally or to such class or classes of export, relevant item, or relevant activity as may be specified in the regulations.

(3) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House sits after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

6. Expenses

6. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of monies provided by the Oireachtas.

7. Service of notices or documents

7. (1) A notice or other document that is required to be served on or given to a person under this Act shall be in writing addressed to the person concerned by name, and may be so served on or given to the person in one of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) by electronic means, in a case in which the person has given notice in writing to the person giving the notice concerned of his or her consent to the notice (or notices of a class to which the notice belongs) being given to him or her in that manner.

(2) For the purpose of this section, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act is deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body of persons shall be deemed to be ordinarily resident at its principal office or place of business.

8. Repeals and revocations

8. (1) The Act of 2008 is repealed.

(2) Each of the following instruments is revoked:

(a) the Order of 2009;

(b) the Regulations of 2018;

(c) the Regulations of 2021.

PART 2 Control of Dual-Use Items

9. Interpretation for Part 2

9. In this Part—

“broker” has the same meaning as it has in Article 2; “brokering services” has the same meaning as it has in Article 2; “export” has the same meaning as it has in Article 2;

“exporter” has the same meaning as it has in Article 2; “transit” has the same meaning as it has in Article 2;

“use” in relation to use of a dual-use or cyber-surveillance item means the item may be used in its entirety or in part as a dual-use or cyber-surveillance item.

10. Obligations of exporter under Article 3, 4 or 5

10. (1) An exporter who contravenes Article 3.1 shall be guilty of an offence.

(2) An exporter who contravenes Article 4.1 shall be guilty of an offence.

(3) (a) Where an exporter is aware that a dual-use item not specified in Annex I that he or she proposes to export is intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, he or she shall, at least 60 days before the export, as required by Article 4.2, give notice to the competent authority.

(b) An exporter who contravenes paragraph (a) shall be guilty of an offence.

(4) (a) Where an exporter has grounds to suspect that a dual-use item not specified in Annex I that he or she proposes to export is or may be intended for use in a manner specified in paragraph (a), (b) or (c) of Article 4.1, he or she shall, at least 60 days before the export, give notice to the competent authority of his or her grounds to so suspect.

(b) An exporter who contravenes paragraph (a) shall be guilty of an offence.

(5) An exporter who contravenes Article 5.1 shall be guilty of an offence.

(6) (a) Where an exporter is aware, following the carrying out of due diligence, that a cyber-surveillance item not specified in Annex I that he or she proposes to export is intended for use in a manner specified in Article 5.1, he or she shall, at least 60 days before the export, as required by Article 5.2, give notice to the competent authority.

(b) An exporter who contravenes paragraph (a) shall be guilty of an offence.

(7) (a) Where an exporter has grounds to suspect that a cyber-surveillance item not specified in Annex I that he or she proposes to export is or may be intended for use in a manner specified in Article 5.1, he or she shall, at least 60 days before he or she exports the cyber-surveillance item, give notice to the competent authority of his or her grounds to so suspect.

(b) An exporter who contravenes paragraph (a) shall be guilty of an offence.

11. Provision supplemental to section 10

11. (1) After receipt of a notice referred to in subsection (3), (4), (6) or (7) of section 10, the competent authority shall consider the matter and give notice to the exporter of the decision of the authority—

(a) that an authorisation is not required for the export of the dual-use or cyber-surveillance item the subject of the notice, or

(b) directing the exporter to apply for an authorisation to export the dual-use or cyber-surveillance item.

(2) An exporter who receives a direction under subsection (1)(b) in relation to a dual-use or cyber-surveillance item shall not export the item to which the direction relates without an authorisation to do so.

(3) An exporter who contravenes subsection (2) shall be guilty of an offence.

12. Order of Minister prohibiting export of dual-use item not specified in Annex I

12. (1) The Minister may—

(a) where he or she is satisfied that it is required for reasons of public security including the prevention of acts of terrorism or for human rights considerations, and

(b) having consulted with such other Minister of the Government as he or she considers appropriate,

by order prohibit the export without an authorisation of the dual-use item not specified in Annex I as is specified in the order.

(2) An exporter who exports a dual-use item specified in an order under subsection (1) without an authorisation shall be guilty of an offence.

13. Direction that authorisation required to export dual-use item not specified in Annex I

13. (1) Notwithstanding that a dual-use item not specified in Annex I has not been specified in an order under section 12, where the competent authority is satisfied that an authorisation to export the item is required for reasons of public security including the prevention of acts of terrorism or for human rights considerations, the competent authority may give notice to an exporter directing him or her to apply for an authorisation to export the dual-use item.

(2) An exporter who exports a dual-use item in contravention of a direction under subsection (1) shall be guilty of an offence.

14. Obligations of broker under Article 6