DUAL USE: Legislation and Procedures for European exporters

This article was written in collaboration with Valeria Minasi, export and internationalization consultant. She collaborates with the ExportPlanning team within the International Market Accessibility project.

The export of certain product categories may in some cases be subject to special control regulations to ensure the security of trade. For example, the so-called dual use products.
The term dual use identifies goods and technologies which, even if used for civilian purposes, can be used for the production and development of different types of armaments.

The export of dual goods and technologies is governed by a variety of regulations and procedures that meet national and international security requirements. Exporting goods potentially dual use without appropriate and correct authorizations may involve not only heavy fines, but also criminal charges and the application of a series of disqualification measures for the exporting company.
For this reason it is of fundamental importance to have adequate knowledge of the discipline of these products, which do not belong to a single category, but rather range from machinery and equipment to software, involving a variety of product sectors¹.

Procedure to verify whether a product is DUAL USE

1. destination use (end-user)
2. requirements and the technical construction or design features

Verification of the end-user

First, it is necessary to verify that the people involved in the transaction (end user, recipient, intermediaries) are not included in the list of persons and entities subject to sanctions.

• EU list
• US list

Verification of the technical construction or design features

Secondly, thanks to the Taxation and Customs Union website(TARIC), it's possible for an EU exporter to make a preliminary check to verify if the product in question is or is not potentially dual use.

The following is an example of searching for dual use codes related to the Nomenclature Classification code NC852580.11 (surveillance cameras with at least three shooting tubes) with reference to the United Arab Emirates market.

Example of dual use code search-1

Source: TARIC

Example of dual use code search-2

Source: TARIC

To identify the dual use codes within the TARIC, click on the notes (in the example above “DU224”). Each note contains the corresponding dual use code (in the example: “6A003”).In fact, since in the applicable legislation the goods are not following the Nomenclature Classification code, but they are on the basis of dual use codes, it’s necessary to identify the corresponding dual use codes and check the technical characteristics.

EU Legislation Framework for DUAL USE

The EU Regulation 428/2009 provides a general framework of the legislation specify which product are dual und which operations must be prior checking; In Attachment I of the regulation are listed, with technical descriptions, all products considered dual use.

The general principle of Community legislation is the following: the export of dual use products included in the list of the regulation 428/2009 is subject to authorization by the competent national authority.
An Authorization is always required to provide services relating to dual use goods and export listed goods as a result of Union measures. There are 4 different Authorizations:

• Individual Specific Authorization
• Individual Global Authorization
• General Authorization of the European Union
• National General Authorization

Summary of Authorization Types for DUAL USE goods

Individual Specific Authorization

This type of authorization is the most frequent to exports made by a single exporter (or service provider) for one or more goods but to a specific end user. This authorization is valid for 6 months to 2 years and can be extended only once with the presentation of an application by the exporter 30 days before expiry.
The application to obtain the authorization must contain the profile of the end user and must be accompanied by appropriate documentation that certifies the actual will to purchase by this user (e.g. reference contract); in addiction, an end user statement must be presented, which must indicate the goods involved in the operation, their use (civil or military) by the recipient and the commitments, always by the recipient, to follow the Union control regulations.

Individual Global Authorization

To facilitate the export of dual use goods by individuals who have to do frequent exports of dual use material, individual global authorization is required. This authorization, which could have three years duration, is issued to a single operator who has already obtained similar authorizations, to export one or more products to one or more end users or specific countries.
Once it is obtained, the exporter must request the end user’s commitment to follow the Community regulations, and then, cite the references of the commercial and transport documents (individual global authorization followed by the number and date of measure). Before 30 days of the end of each semester, the owner must send to the authority a summary list of the export operations.

General Authorization of the European Union

EU Regulation 428/2009 provides a general authorization for the export of all dual use products with some exceptions listed in the Annex II of the regulation, to some specific countries (Australia, Canada, Japan, New Zealand, Norway, Switzerland, United States of America).
For the export with this countries it’s sufficient to submit an application to the Ministry in which it is stated the will to make use of this general authorization and, once obtained, the exporter has only the obligation to submit to the competent authority, before 30 days of the end of each semester, a summary list of the export operations.

National General Authorization

According to the legislation, there might be also a general national authorization for the export of goods to some countries (e.g. for Italian legislation: Argentina and South Korea). The procedures for activating this authorization are usually the same as the ones for the General EU authorization.

1) The relevant European legislation, which is referred to in the article, provides for the following categories of dual-use products:

• Nuclear materials, installations and equipment;
• Special materials and equipment;
• Treatment and processing of materials;
• Electronic materials;
• Calculators;
• Telecommunications and information security;
• Sensors and lasers;
• Avionics and navigation equipment;
• Naval equipment;
• Aerospace material and propulsion.

2) For more details on the regulatory framework and procedures for exporting dual use goods from EU, see the relevant Introduction Guide to Dual Use, available in the section IMA-International Market Accessibility of ExportPlanning.