European Export Control Update Presentation

Report
European Export Control Update
Naboth van den Broek
Boston, 31 May 2012
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1. EU Export Control Regime - Overview
2. Dual-Use Goods & Technology
3. Military Goods & Technology
4. Sanctions
5. Recent Developments / Update
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1. EU Export Control: Overview
 National rules (27 Member
States)
 Defense & Security= MbS
prerogative
 Procedural rules and enforcement
 European rules
 Trade = EU prerogative
 International rules
 EU-level “Community” rules
 EU-level “intergovernmental”
rules (binding and nonbinding)
 Member States rules
expanding scope of EU rules
 Autonomous Member State
rules
 Member State procedural
rules
 International rules
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2. EU Dual-Use Rules: General
 Community (EU) ‘Competence’  Largely regulated at
EU level
 Regulation 428/2009
 Dual-use items are:
“… items, including software and technology, which can be used for
both civil and military purposes, and shall include all goods 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.”
(Reg. 428/2009)
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EU Dual-Use Rules: Coverage
 General
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Single, regularly updated common list of items requiring export authorization
“Catch all” for certain end-uses
Items exported to final destination outside EU
Some items (“sensitive” or “very sensitive”) are covered even for intra-EU
transfer (see Annex IV parts I and II)
 Noteworthy
 Includes tangible technology (objects, documents, software) and intangible
technology (skills, know-how)
 Includes physical transfer and electronic media, fax or phone
 Includes “technical assistance”
 Includes non-necessary information for patent applications
 Includes technology integrated into other products
 Non listed dual-use items: authorization may be required
 Specific national rules may apply/interpretations may differ
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EU Dual-Use Rules: Procedures
 License must be obtained in Member State where the exporter is
established
 “Exporter” = person on whose behalf the export declaration is made /
who holds the power to determine the sending of the items
 Licensing procedures established by each Member State, including
record-keeping
 If multiple Member States involved there is a “consultation” process
(veto!)
 Enforcement and Implementation at Member State level
 Several types of licenses (“authorizations”)
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3. EU Military Export Controls
 Member State “Competence” - however EU rules exist:
– Export outside the EU: Common position 2008/944/CFSP
– Export within the EU: Directive 2009/43
 In both cases:
– Items  listed in EU Common Military List (not exhaustive +
regularly updated) (similar to U.S. ITAR but with some
differences)
– License  Member State
 Bilateral issues
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4. EU Sanctions
 EU and Member State legislation
– Enforcement & admin: Member State level
 Generally in accordance with international policies (UN, OSCE)
 EU sanctions “programs”: Iran, Libya, Syria
 EU arms embargos/asset freezes/prohibition of specific services:
Afghanistan, Belarus, China, Eritrea, Iraq, North Korea, Zimbabwe,
terrorists group etc.
 Focus on specific items, particularly arms, munitions; but sometimes
broader (technology, financing, specific end-users, flight bans,
investment)
 Generally no US-style general embargoes
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Key Regulatory and Other
Developments
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1. Dual-Use: Changes to the EU Dual-Use
Rules

Annex I to Reg. 428/2009 amended on April 2012  comes into
force on 15 June 2012
Regulation 1232/2011 (December 2012):
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Introduction of five new EU General Authorizations (EU GEAs) (total: 6)
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EU001 – exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland
(including Liechtenstein) and United States of America
EU002 – export of certain dual-use items to certain destinations
EU003 – export after repair/replacement
EU004 – temporary export for exhibition or fair
EU005 – telecommunications
EU006 – chemicals
New measures to increase transparency and improve enforcement including
possibility to prohibit certain exporters from using EU GEAs.
No EU GEA for Computers & Related Equipment; concern about human
rights/monitoring
Reminder: Brokering services covered
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2. Dual-use: EU Green Paper on Dual-Use
Goods
 Proposed Reform: Amendment expected toward end2012
 Key items expected:
 Common risk assessment approach of all export control authorities
 Improved exchange of info about suspicious transactions and licensing
decisions
 Phase out NGAs in favour of EU GEAs
 Common approach to catch-all controls
 Working toward a fully integrated internal market for dual-use items
(phase out internal controls)
 Coordinated enforcement across the EU + improved access to relevant
info for customs enforcement
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3. Sanctions: Significantly more active sanctions
landscape

Sanctions are getting broader (Iran, Syria, Libya,
terrorism blacklists)

Basic approach continues to follow the UN, but more
active stance and closer coordination with U.S.
sanctions policy

Member States continue to play an active role

Judicial Protection continues to be a challenge

Burma: suspended
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4. More active enforcement
 Expect to see continued increase in focus on
export controls and enforcement
 Expect to see continued focus on sanctions
 Expect to see more coordinated action (?)
 Between MbS
 Between policy areas
 Focus on broader range of technologies
(computers & related equipment, telecom
equipment, software)
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5. More opportunities for risk mitigation and
cooperation
 Active compliance audits but also an increased focus
on compliance programs to mitigate risk and reduce
penalties
 No formal Voluntary Disclosure process, but don’t
forget regulatory cooperation…
 Judicial Protection (sanctions, Lisbon Treaty)
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6. Don’t forget other EU Regulations!
 EU regulatory policy is increasingly wide-spread and has
an ever wider product and geographic scope
 Beyond export control and sanctions, there are other
areas of regulation for US exporters to take into account,
including:
 Environmental regulations (electrical goods, electronic waste, nanotech,
biotech, etc.)
 Technical standards and regulations
 Competition rules (affecting licensing, reselling, distribution)
 Data protection & Privacy
 Sanctions for non-compliance can be severe
 US – EU Trade Cooperation (Working Group / FTA ?)
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Thank you for your attention!
Naboth van den Broek
[email protected]
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