Issues in the field of export and foreign trade law in connection with the import and export of goods. The focus of my work is on export law issues concerning export projects with a destination outside the European Single Market by exporters based in Germany. Another focus is the import of minerals and metals into the domestic market.
Main practice areas in export and foreign trade law:
- Export law issues within the scope of the Dual-Use Regulation (Dual-Use Regulation), licensing procedures under the Dual-Use Regulation
- Non-harmonized foreign trade law (AWG)
- Mandatory notifications, in particular payment notifications, within the scope of the Foreign Trade and Payments Ordinance (AWV)
- Customs law issues: Tariff classification of goods, goods inspection, status procedures
- External audits by customs: preparation and monitoring of external audits under customs law
- Legal basis, inspection obligations and due diligence requirements when importing minerals and precious metals from conflict regions or from artisanal extraction
Export controls within the scope of the Dual-Use Regulation
Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance in transit and transfer of dual-use items provides the basis for common licensing requirements and procedures in the EU for the export of dual-use items from the Single Market to third countries. The regulation from 2021 is a new version and replaces Council Regulation (EC) No. 428/2009 of May 5, 2009 (Dual-Use Regulation) is the basis for common licensing requirements and procedures in the EC for the export of dual-use goods from the EC internal market to third countries. The regulation applies to all companies that export goods to customers outside the EU. Dual-use refers to goods that can be used for both civilian and military purposes. To simplify handling, the legislator has provided the Dual-Use Regulation with extensive annexes. The annexes contain list numbers that correspond to goods with certain technical parameters or performance data.
If goods can be assigned to one of the list numbers in the Annexes to the Dual-Use Regulation, they may only be exported with a license from the competent authority. The goods are then subject to authorization within the meaning of the Dual-Use Regulation. Goods that are not explicitly listed may also require a license if these goods are or may be intended for use in connection with the development, production, handling, maintenance, storage, detection, identification or operation of nuclear, biological or chemical weapons or missiles for such weapons. This also applies to military end-use.
The examination as to whether an export is subject to authorization within the meaning of the Dual-Use Regulation can lead to the following results:
- The goods to be exported correspond to list numbers from the annexes of the Dual-Use Regulation. In this case, an export license is regularly required.
- The goods to be exported do not correspond to a list number from the annexes of the Dual-Use Regulation. In this case, an export license will not be required in many cases. Exceptionally, however, a license may be required if the goods are intended for a military end-use or if they are to be used in connection with the development, manufacture, handling, maintenance, storage, detection, identification or operation of weapons of mass destruction.
Effectively limiting foreign trade law risks
Risks in connection with foreign trade law and the export of goods should already be taken into account when initiating export transactions. If export law problems only become apparent after the contract has been concluded, the baby has usually already fallen into the well. There is a risk that the contract will be delayed due to lengthy approval procedures, which may result in the export license being denied. Under civil law, there is a risk that the contractual partner will withdraw from the contract, assert contractual penalties or claim damages.
A risk prevention process could be based on the following key questions:
- The transaction concerns the export of goods from the European Union. This means that the place to which the goods are to be exported or to which the alternative acts of the Dual-Use Regulation apply is outside the customs territory of the European Union. Yes: The Dual-Use Regulation is applicable.
No: The Dual-Use Regulation is not applicable and there is no other type of export restriction, such as an embargo. In this case, the export is unobjectionable from the point of view of foreign trade law. - Check whether a license is required under the Dual-Use Regulation for the export or other relevant actions.
- Check whether an export license is required under German export law (AWG and AWV).
- Have all risks arising from the need to carry out the licensing procedures under points 2 and 3 been adequately taken into account in the contract? In practice, it is advisable to make the contract subject to the condition precedent that there are no export problems or that an export license is granted.
