Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003

Made: 30th October 2003

Laid before Parliament: 31st October 2003

Coming into force: 1st May 2004

The Secretary of State, in exercise of the powers conferred by sections 1, 2, 3, 5, 7 and having regard to the matters specified in section 8, of the Export Control Act 2002 hereby makes the following Order:

Citation and commencement

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This Order may be cited as the Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003 and shall come into force on 1st May 2004.

Interpretation

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• (1) In this Order the following expressions have the meanings given to them below, save where an expression is also defined in a Schedule where it has, for the purposes of that Schedule, that meaning—

• “the Act” means the Export Control Act 2002;

• “aircraft” means a fixed wing, swivel wing, rotary wing, tilt rotor or tilt wing airborne vehicle or helicopter;

• “the Commissioners” means the Commissioners of Customs and Excise;

• “the Community General Export Authorisation” means the authorisation constituted by Article 6(1) of “the Regulation” and Annex II to “the Regulation”;

• “Community Licence” means an authorisation granted by a “competent authority”(whether before or after commencement of this Order) under “the Regulation” or the 2005 Regulation;

• “competent authority” means in respect of the United Kingdom, the Secretary of State, and, in respect of another Member State, any authority empowered by that Member State to grant “exportation” or “transfer” authorisations under “the Regulation” or the 2005 Regulation;

• “country” includes territory;

• “customs and excise Acts” has the same meaning as in section 1 of the Customs and Excise Management Act 1979 ;

• “dual-use” in relation to “goods” or “technology”, means “goods” or “technology” which can be used for both civil and military purposes, and includes any “goods” or “technology” 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;

• “the European Community” means the customs territory of the European Community as defined in article 3(3) of Council Regulation (EEC) No 2913/92 of 12th October 1992 ;

• “exportation” includes “shipment” as “stores” and, unless the context otherwise requires, means exportation from the United Kingdom to any destination outside the United Kingdom and the Isle of Man, except “export” in relation to the exportation from “the European Community” of dual-use “goods”, “software” and “technology”, which has the same meaning as in Article 2(b) of “the Regulation”;

• “exporter” and other cognate expressions shall be construed accordingly;

• “goods” means tangible goods, both used and unused and includes any goods on which “software” or “technology” is recorded;

• “importation” and “exportation” in relation to a “vessel”, “vehicle”, submersible vehicle or “aircraft” includes the taking into or out of the United Kingdom of the “vessel”, “vehicle”, submersible vehicle or “aircraft”, notwithstanding that the “vessel”, “vehicle”, submersible vehicle or “aircraft” is conveying “goods” or passengers and whether or not it is moving under its own power; and cognate expressions shall be construed accordingly;

• “microprogramme” means a sequence of elementary instructions, maintained in a special storage, the execution of which is initiated by the introduction of its reference instruction into an instruction register;

• “normal commercial journey” means a journey providing transport services in the ordinary course of business;

• “prescribed sum” and “proper” have the same meanings as in the Customs and Excise Management Act 1979;

• “programme” means a sequence of instructions to carry out a process in, or convertible into, a form executable by an electronic computer;

• “in the public domain” means available without restriction upon further dissemination (no account being taken of restrictions arising solely from copyright);

• “the Regulation” means Council Regulation (EC) No. 1334/2000 of 22nd June 2000 (as amended by the Council Regulations listed in Schedule 5 to this Order) setting up a Community regime for the control of exports of “dual-use” “goods” and “technology”;

• “the 2005 Regulation” means Council Regulation (EC) No 1236/2005 of 27th June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.

• “any relevant use” means use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices, or the development, production, maintenance or storage of missiles capable of delivering such weapons;

• “scheduled journey” means one of a series of journeys which are undertaken between the same two places and which together amount to a systematic service operated in such manner that its benefits are available to members of the public from time to time seeking to take advantage of it;

• “shipment”(and cognate expressions) and “stores” have the same meanings as in the Customs and Excise Management Act 1979;

• “software” means one or more “programmes” or “microprogrammes” fixed in any tangible medium of expression;

• “surface effect vehicle” means any air cushion “vehicle”(whether side wall or skirted) and any “vehicle” using the wing-in-ground effect for positive lift;

• “technical assistance” means any technical support related to repairs, development, manufacture, assembly, testing, “use”, maintenance or any other technical service;

• “technology” means information (including but not limited to information comprised in software and documents such as blueprints, manuals, diagrams and designs) that is capable of use in connection with the development, production or use of any goods;

• “transfer”, in relation to any “software” or “technology”, means the “transfer by any electronic” or “transfer by non-electronic means”(or any combination of electronic and non-electronic means) from a person or place within the United Kingdom except in articles 8 and 9 to the extent that those articles make provision in respect of transfers other than from a person or place within the United Kingdom;

• “transferor” and other cognate expressions shall be construed accordingly (except that where the transfer is to a destination outside “the European Community”, transferor has the same meaning as “exporter” in the definition in Article 2(c) of “the Regulation” to the extent that that definition applies);

• “transfer by any electronic means”, in relation to any “software” or “technology”, means a transmission of “software” or “technology” by facsimile, telephone or other electronic media (except that oral transmission of “technology” by telephone is included only where the “technology” is contained in a document the relevant part of which is read out over the telephone, or is described over the telephone in such a way as to achieve substantially the same result as if it had been so read);

• “transfer by any non-electronic means”, in relation to any “software” or “technology”, means a disclosure of “software” or “technology” by any means (or combination of means), including oral communication, other than as the “exportation” of “goods” or the “transfer by any electronic means”;

• “in transit” means any “goods” imported into the United Kingdom for “transit or transhipment” and includes “goods” which only pass through “the European Community” within the meaning of Article 3(4) of “the Regulation” and “goods” being exported to another Member State which are not being exported from the United Kingdom to that other Member State within the meaning of Article 21 of “the Regulation”;

• “transit or transhipment” means transit through the United Kingdom or transhipment with a view to re-exportation of the “goods” in question or transhipment of those “goods” for use as “stores”;

• “vehicle” includes a railway carriage;

• “vessel” includes any ship, “surface effect vehicle”, vessel of small waterplane area or hydrofoil and the hull or part of the hull of a vessel.

• (2) Any reference in this Order to time after an event is a reference to a period of that length of time beginning on the day after that event.

• (3) Except where this Order otherwise provides, expressions used in the Regulation which are also used in this Order have the same meaning in this Order as they have in the Regulation.

PART I — CONTROLS ON THE EXPORT OF GOODS

Export of military and certain other goods

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• (1) Subject to the provisions of this Order, goods of a description specified in Schedule 1 to this Order are prohibited to be exported to any destination.

• (1A) Subject to the provisions of this Order goods of a description in—

• (a) Schedule 1A to this Order are prohibited to be exported to any Member State or any of the Channel Islands; and

• (b) entry 1 or 2 of Schedule 1A to this Order are prohibited to be exported to any other destination when they are goods in transit to that other destination.

• (2) Paragraph (1) or 1A does not prohibit the exportation of any goods in relation to which a licence in writing has been granted by the Secretary of State, provided that all conditions attaching to the licence are complied with.

• (3) Subject to the provisions of this Order, or any contrary provisions in a licence, a licence granted by the Secretary of State in relation to any goods specified in Schedule 1 shall also authorise the exportation or transfer of the minimum technology required for the installation, operation, maintenance and repair of the goods to the same destination as the goods.

Export of dual-use goods and end-use control

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• (1) Subject to the provisions of this Order, goods of a description specified in Schedule 2 to this Order are prohibited to be exported to the destinations specified in that Schedule as being prohibited destinations in relation to those goods.

• (2) Subject to the provisions of this Order—

• (a) goods specified in Annex I but not in Annex IV to the Regulation;

• (b) goods of a description specified in Schedule 2 to this Order; or

• (c) goods not specified in Annex I to the Regulation or Schedule 2 to this Order but for the exportation of which from the European Community an authorisation is required pursuant to:

• (i) Article 4(1) of the Regulation; or

• (ii) Article 4(2), (3) or (4) of the Regulation,

are prohibited to be exported to any destination in any Member State where the exporter knows at the time of exportation that the final destination of such goods is outside the European Community and no processing or working is to be performed on those goods in any Member State to which they are to be exported.

• (3) Subject to the provisions of this Order, dual-use goods not listed in Annex I of the Regulation, which the exporter has grounds for suspecting are or may be intended, in their entirety or in part, for any relevant use, are prohibited to be exported to any destination outside the European Community, unless the exporter has made all reasonable enquiries as to their proposed use and is satisfied that they will not be so used.

• (4) Subject to the provisions of this Order, goods of a description specified in Annex I to the Regulation, which are goods in transit, are prohibited to be exported to any destination.

• (5) Subject to the provisions of this Order, paragraphs (1), (2), (3) and (4) do not prohibit the exportation of any goods in relation to which a licence in writing has been granted by the Secretary of State, provided that all conditions attaching to the licence are complied with.

End-use control and goods in transit

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• (1) Subject to the provisions of this Order, goods which are goods in transit are prohibited to be exported to any destination where—

• (a) the exporter (or, if the exporter is not within the United Kingdom, any agent of the exporter within the United Kingdom concerned in the exportation or intended exportation) has been informed by a competent authority that such goods are or may be intended, in their entirety or in part, for any relevant use; or

• (b) the exporter is aware that such goods are intended, in their entirety or in part, for any relevant use; or

• (c) the exporter has grounds for suspecting that such goods are or may be intended, in their entirety or in part, for any relevant use, unless the exporter has made all reasonable enquires as to their proposed use and is satisfied that they will not be so used.

• (2) Subject to the provisions of this Order, paragraph (1) does not prohibit the exportation of any goods in relation to which a licence in writing has been granted by the Secretary of State, provided that all conditions attaching to the licence are complied with.

PART II — CONTROLS ON THE TRANSFER OF TECHNOLOGY

Electronic transfer of controlled military and certain other technology

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• (1) Subject to the provisions of this Order, no person shall transfer by any electronic means to a person or place outside the United Kingdom any software or technology of a description specified in Schedule 1 to this Order.

• (2) Paragraph (1) does not prohibit the transfer of any software or technology of a description specified in Schedule 1 to this Order in relation to which a licence in writing has been granted by the Secretary of State, provided that all conditions attaching to the licence are complied with.

Electronic transfer of controlled dual-use technology and software and end-use controls

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• (1) Subject to the provisions of this Order, no person shall transfer by any electronic means any dual-use software or technology of a description specified in Schedule 2 to this Order where the transfer is to a person or place in any destination specified in that Schedule as being a prohibited destination in relation to that software or technology.

• (2) Subject to the provisions of this Order, no person shall transfer by any electronic means to a person or place in any Member State any dual-use software or technology that is either—

• (a) specified in Annex I but not in Annex IV to the Regulation;

• (b) specified in Schedule 2 to this Order; or

• (c) not specified in Annex I to the Regulation or Schedule 2 to this Order but for the transfer of which from the European Community an authorisation is required pursuant to—

• (i) Article 4(1) of the Regulation; or

• (ii) Article 4(2), (3) or (4) of the Regulation,

if he knows at the time of the transfer that such software or technology is intended for use outside the European Community and no processing or working is to be performed on that software or technology in any Member State to which it is to be transferred.

• (3) Subject to the provisions of this Order, no person shall transfer by any electronic means any dual-use software or technology not listed in Annex 1 of the Regulation, to a person or place outside the European Community where he has grounds for suspecting that such software or technology is or may be intended, in its entirety or in part, for any relevant use, unless he has made all reasonable enquiries as to its proposed use and is satisfied that it will not be so used.

• (4) Subject to the provisions of this Order—

• (a) Article 21(1) of the Regulation and paragraphs (1), (2) and (3) of this article do not prohibit the transfer of any dual-use software or technology in relation to which a licence in writing has been granted by the Secretary of State provided that all conditions attaching to the licence are complied with; and

• (b) Article 3(1) of the Regulation does not prohibit the transfer of any dual-use software or technology under the authority of the Community General Export Authorisation, or in relation to which a licence in writing has been granted by the Secretary of State or a Community Licence has been granted by any competent authority, provided that all conditions applying to that authorisation or attaching to the licence or Community Licence are complied with.

End-Use Controls on the transfer of all software and technology by any means

Electronic transfer of all software and technology and end-use controls

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• (1) Subject to the provisions of this Order, no person shall transfer by any electronic means any software or technology to a person or place within the United Kingdom, where—

• (a) he has been informed by the Secretary of State that such software or technology is or may be intended, in its entirety or in part, for any relevant use; or

• (b) he is aware that such software or technology is intended, in its entirety or in part, for any relevant use,

if he has reason to believe that such software or technology may be used outside the European Community.

• (2) Subject to the provisions of this Order and where paragraph (3) applies, no United Kingdom person shall transfer by any electronic means any software or technology from any place outside the European Community to—

• (a) a person or place outside the European Community; or

• (b) a person or place in any Member State, if he knows at the time of transfer that such software or technology is intended for use outside the European Community and no processing or working is to be performed on that software or technology in any Member State to which it is to be transferred.

• (3) This paragraph applies where—

• (a) the United Kingdom person has been informed by a competent authority that such software or technology is or may be intended, in its entirety or in part, for any relevant use; or

• (b) the United Kingdom person is aware that such software or technology is intended, in its entirety or in part, for any relevant use.