Dual-use items are goods, software or technology which can be used for civil and military purposes. Encryption software, for example, is subject to export controls because it is capable of dual-use: although such software can be used to ensure the confidentiality of information for common commercial transactions, it can also be used in a military capacity and, potentially, for illicit purposes. As a result, dual-use items are subject to their own export control regime in the EU.
According to Tom Stocker and Fiona Cameron of Pinsent Masons, the law firm behind Out-Law, action is required from UK exporters of dual-use items ahead of the fast-approaching expiry of the Brexit transition period on 31 December 2020 as the licensing regime is due to change after that date.
From 1 January 2021, an Open General Export Licence (OGEL) will be required. Exporting without a required licence is a strict liability criminal offence, which includes inadvertent breaches, and a more serious offence for deliberate evasion of export controls.
"Many goods and technologies are dual use and subject to export control licensing," Stocker said. "Up until now, export licences were generally not needed for intra-EU trade. Going forward, many more export licences will be needed. It is important that businesses exporting goods to EU member states check the UK Strategic Export Control List and consider registering against the OGEL. Similar controls will apply for companies in EU member states exporting to the UK."
Until the end of the Brexit transition period, with the exception of a limited number of more sensitive, high risk dual-use products, the export of dual-use items from the UK to the EU and vice versa is largely unfettered, although export beyond the EU requires an export authorisation.
From 1 January 2021, however, the UK will become a third country in relation to the EU. This means that exports from the UK to or via the EU or the Channel Islands, and EU businesses exporting to the UK, will immediately be subject to different export controls.
"The overall framework of controls for dual-use exports will not change, but there will be changes to some licensing requirements," the UK government has said. "For dual-use items, UK businesses will require an export licence, issued by the UK."
OGELs are pre-published licences with set terms and conditions, which permit, without further authority, export from the UK to the EU and Channel Islands and remove the need to apply for an individual export control licence. They allow for the export of specified controlled items by any exporter provided the shipment and destinations are eligible and are obtained from the UK government's Export Control Joint Unit (ECJU) by registering with its SPIRE, online export licensing system. The OGEL is open for registration now.
Fiona Cameron of Pinsent Masons said: "Items physically, as opposed to electronically, exported under an OGEL must be accompanied by documentation confirming that the items are being exported under the OGEL; or giving the exporter's SPIRE reference number."
"Additionally, the OGEL requires exporters of items covered by Category 0 – nuclear materials, facilities and equipment – to give prior notification to the Department for Business, Energy and Industrial Strategy by email to [email protected] detailing the items to be exported, the proposed date of export, the consignee and end-user and the weight of any material being exported. Further notification is required when each shipment is actually made," she said.
Strict record keeping obligations also apply, Cameron said.
She said: "Records of all exports made under an OGEL must be kept and made available for inspection at an address registered on the SPIRE system within 30 days of the first export under the OGEL. Compliance is audited by the ECJU."
Current licences to export dual-use items to a non-EU country issued by the UK, will remain valid for export from the UK from 1 January 2021. However, an export licence issued by another EU member state will no longer be valid for export from the UK.
Infringement of export controls can lead to an unlimited fine and/or imprisonment for up to 10 years, increased to 14 years for nuclear material.
"Exporters of dual use goods from the UK to the EU and Channel Islands, and vice versa, should act now to ensure that they have registered for any necessary licences," Stocker said. "Where appropriate, consideration should be given, if it has not been already, to establishing exporting entities in the UK and EU for exports to the EU and UK respectively."