Guides for export controls
In principle, foreign trade is free. However, in order to protect certain higher-ranking goods, restrictions or prohibitions have been imposed by way of exception. A high good is the peaceful coexistence of nations (§ 7 AWG).
Based on § 4 AWG, the Foreign Trade and Payments Ordinance (AWV) contains specific prohibitions and licensing requirements. In particular, the provisions enable control of the export of arms and military equipment.
Part I of Annex AL (Export List) to the AWV contains, in particular, the list of controlled military equipment. Regulation (EC) No. 428/2009 (so-called EC Dual-use Regulation) must be observed for goods that can be used for both civilian and military purposes (so-called dual-use goods). It establishes a uniform list of goods for all EU member states (Annex I to the EC Dual-use Regulation) as well as licensing requirements and procedures for the export and transfer of dual-use goods. It also contains regulations for brokering activities in relation to dual-use goods and prohibitions on their transit. The aim is to prevent the proliferation of weapons of mass destruction.
When deciding whether to grant a licence for Annex I goods, Member States must take into account the following aspects in particular (cf. Art. 12(1) EC Dual-use Regulation):
• Their obligations under international agreements on non-proliferation and the control of security-sensitive items.
• Your obligations under sanctions imposed by the United Nations Security Council or agreed to in other international fora
• Considerations of national foreign and security policy
• Considerations about the intended end-use and the risk of circumvention
In addition, there are embargo regulations which may override the above-mentioned general foreign trade regulations, which generally give rise to licensing requirements, e.g. with prohibitions.
Depending on the scope of the restrictions, three types of embargo can be distinguished: Total embargoes, partial embargoes and arms embargoes.
Embargo regulations can affect not only the export of the good, but also, for example, the import and transit of goods, the provision of services, investments, and payments (financial sanctions). In addition, embargoes may also apply to goods that are not normally subject to export controls.
Therefore, when trading with embargoed countries, special care must always be taken to determine whether the planned action and/or the underlying legal transaction is affected by the restrictions.
Licensing obligations may arise from the EC Dual-use Regulation as well as from the Foreign Trade and Payments Act and Ordinance, the Firearms Ordinance and the Anti-Torture Ordinance. Such licensing requirements apply to the export and transfer of goods, as well as to trading and brokering transactions and the provision of technical assistance. The term "goods" includes goods, technology and data processing programs.
1. Licensing requirements for exports to countries outside the EU
The export is the delivery of goods from the German domestic territory or the customs territory of the European Union to a third country, i.e. to a territory outside the customs territory of the European Union.
Irrespective of the coverage by an embargo, it must be checked whether the goods intended for export are covered by Part I of the AL / Annex I of the EC Dual-use Regulation, as the export of these listed goods requires prior authorization by BAFA. In practice, restrictions arise due to the listing of goods.
→ Annex I of EU Regulation 428/2009
Annex I of the EC Dual-use Regulation establishes a uniform list of goods for all member states of the EU and covers those dual-use goods whose export is to be controlled by all participating states according to the decisions of the International Export Control Regimes. The export license requirement is stipulated in Article 3 of the EC Dual-use Regulation. Annex I EC Dual-use Regulation currently covers about 650 items and includes goods from the following areas:
• Nuclear materials, plant and equipment
• Materials, chemicals, microorganisms and toxins
• Materials processing
• General electronics
• elecommunications, Information Security
• Sensors and Lasers
• Aerospace electronics and navigation
• Marine and naval technology
• Propulsion systems, spacecraft and related equipment
2. Authorization requirement for goods not covered by the lists of goods.
The goods must be or may be intended for a specific use. Uses listed include use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons, or military end-use if the buyer country or country of destination is a weapons embargo country. A further prerequisite is positive knowledge of the exporter of this use or that the exporter has been informed by BAFA of a possible use.
3. Licensing requirements for transfers
In order to distinguish this from the rules for exports to countries outside the customs territory of the EU, the delivery from the domestic market to the (remaining) customs territory of the European Union is referred to as a shipment (cf. Section 2 (21) of the Foreign Trade and Payments Act).
Application of the Export List
Section A contains a list for arms, ammunition and armaments.
Section B contains additional nationally controlled items.
Section B is subdivided according to a five-digit numbering system based on the numbering system of the Common List of the European Union for Dual-Use Goods (Annex I of Regulation (EC) No 428/2009).
In detail, the subdivision is as follows, although not all categories and genera are occupied:
0 = Nuclear materials, plant and equipment
1 = Special materials, materials and related equipment
2 = Materials processing
3 = General electronics
4 = Computers
5 = Telecommunications (part 1) and information security (part 2)
6 = Sensors and lasers
7 = Aeronautical electronics and navigation
8 = Marine and ship technology
9 = Aeronautics, space and propulsion
A = Systems, equipment and components
B = Inspection, test and manufacturing facilities
C = Materials and substances
D = Data processing programs (software)
E = Technology
c) Identifiers 901-999
Index of conversions
The recoding index is intended as an aid in determining whether goods classified under the commodity nomenclature for foreign trade statistics might be subject to export control.
It is not possible to unambiguously allocate all numbers of the List of Goods for Foreign Trade Statistics to the numbers of the Export List for all goods, as the classifications of the lists of goods are too different.
Section XVI should apply to most electronic products. Machinery, apparatus, mechanical appliances and electrotechnical goods, parts thereof; sound recording or reproducing apparatus, television image and sound reproducing apparatus, parts and accessories of such apparatus.