Background

Dual-use items are those which can be used for both civil and military purposes. A simple example is a rocket, which can be used to launch a commercial satellite, but also converted into a weapon. The term “dual-use item” covers a broad range of items, from raw materials to components to complete systems. Such items may be subject to an export licensing requirement.

Furthermore, in specific cases, the export of dual-use items may be subject to additional EU restrictive measures due to the imposition of sanctions regarding particular countries, groups and/or individuals.

The separate export licensing regime applying to goods or technology specifically designed (or modified) for military use is not addressed in this briefing.

Legislative regime

An EU-wide regime applies to control the export of dual-use items. The applicable rules are set out in Council Regulation (EU) No 428/2009 for dual-use products (as amended by Regulation (EU) No 1232/2011 and Regulation (EU) No 388/2012) (the “EU Dual-Use Regulation”). The Irish Control of Exports (Dual-Use Items) Order 2009 (S.I. 443/2009) (as amended) gives further effect to the EU Dual-Use Regulation. The Department of Jobs, Enterprise & Innovation (“DJEI”) is the competent authority for exporters of dual-use items established in Ireland.

Dual-use items and meaning of export

A product is considered dual-use if it is included on the list of dual-use items set out in the EU Dual-Use Regulation.

There are ten broad types of dual-use items on this list, including:

• nuclear materials
• electronics
• computers
• telecommunications and information security
• sensors and lasers
• navigation and avionics
• marine and
• aerospace and propulsion.

In addition, non-listed items may also be controlled under the EU Dual-Use Regulation when the exporter has grounds to suspect, or has been advised by the DJEI, that items are intended for use in
connection with weapons of mass destruction, or as parts or components of military goods illegally exported, or if the purchasing country or country of final destination is subject to an arms embargo and the goods may be intended for a military end-use.

“Export” is interpreted broadly to include a wide variety of methods of transfer, including physical shipment and transmission of software or technology via e-mail or downloading.

Transfers within the EU

In general, dual-use items may be traded freely within the EU. However, if the products are included on the list of highly sensitive items in the EU Dual-Use Regulation, an export licence will be required for intra-EU transfers. Furthermore, the commercial documents for all intra-EU movements of dual-use items should indicate that the items are subject to controls if exported from the EU.

Exports outside the EU

For exports of dual-use items to destinations outside the EU, it will be necessary either to obtain an individual or global licence or to rely upon an applicable General Authorisation. Detailed record keeping obligations also apply.

(a) General Authorisations

The General Authorisations enable exporters to export certain dual-use items to certain destinations without an export licence.  There are six General Authorisations, each with a different product scope and list of permissible destinations. Conditions of use, such as record keeping and notification obligations, also apply. Key details of each General Authorisation are as follows:

• EU001: Covers the export of most dual-use items to Australia, Canada, Japan, New Zealand, Norway, Switzerland, Liechtenstein and the USA
• EU002: Covers the export of certain dual-use items to Argentina, Iceland, South Africa, South Korea and Turkey
• EU003: Covers exports of most dual-use items following their repair/replacement, where the relevant items were initially exported from the EU under a valid licence and have been re-imported for the purpose of maintenance, repair or replacement. 23 destinations are listed
• EU004: Covers temporary exports of most dual-use items for exhibitions or fairs. Many specific conditions of use apply. 23 destinations are listed
• EU005: Covers the export of certain telecommunications items to Argentina, China (including Hong Kong and Macao), India, Russia, South Africa, South Korea, Turkey and Ukraine and
• EU006: Covers the export of certain chemicals to Argentina, Iceland, South Korea, Turkey and Ukraine

(b) Individual and Global Licences

To the extent that dual-use products are exported to countries that are outside the EU in circumstances which are not covered by one of the above General Authorisations, a specific licence will be required from the DJEI.  This can be either in the form of an individual licence (for exports to one end user) or a global licence (for exports to one or more countries or end users).

An exporter can apply for a licence by completing an application form and submitting it to the DJEI. The application form requires certain information from the exporter including information regarding the
“end-use” of the product. Where the end-use destination(s) and/or the equipment to be exported are sensitive, complex or contentious, processing can be delayed.

Penalties

Significant penalties including fines and terms of imprisonment can be imposed for breach of the dual-use export obligations.

Conclusion

An understanding of the EU/Irish dual-use licensing regime is essential in order for exporters to avoid inadvertent breaches. For further information on any aspect of the Irish export control regime please contact:

Cormac Little – Partner
T. +353 1 639 5115
E. [email protected]