Export Controls on technology under the new EU dual use regulation
Controlling technology on exports is a crucial challenge for businesses to overcome. We explain what this is and what businesses can do (S,P)
Export controls are restrictions imposed by governments on the tangible and intangible movement of certain
Goods
software and
technology
and on the provision of technical assistance related to controlled items and other restrictions on trade.
Technology controls
Controls apply irrespective of whether goods have previously been exported where their production was based on this technology. The fact that the technology is contained in the goods and thus has been already exported through the goods is irrelevant. Technology exports are - similar to the export of a good— regulated by four control criteria:
the technology itself,
the intended end-use,
the destination country and
The customer
In the EU, technology has its own classification numbers in the EU dual-use list. As a general rule, technology with an export control classification number is subject to an export licence. However, there are certain exceptions to this principle: technology, even with an export control classification number, is exempt from licence requirements.
Information (technical drawings, blueprints, plans, diagrams, etc.) which is necessary for the development, production or use of a controlled item.
If such information is to be transferred abroad, either in a printed manner or by electronic means, this transfer is an export that is subject to export control laws.
From the European export control point of view, technology transfer (i.e. the transfer of technical know-how), can occur in two ways:
1. The export of the technology data instead of the good.
2. A technology transfer is carried out via technical assistance. How and when technical assistance, including the transfer of technology, and which export control restrictions apply to this specific kind of technology transfer, must be analysed.
Examples of Technical, controlled data
►blueprints
►plans
►diagrams
►models
►formulae
►tables
►engineering designs and specifications
►manuals
► instructions written
►recorded on other media or devices
►The scope of technical assistance controls is clarified/extended with respect to foreign nationals providing services from the territory of the EU, the provision of service by EU nationals from a third country and transfers of technology towards third-country nationals in the EU
►'technical assistance' means any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service.
►Forms: instruction, advice, training, transmission of working knowledge or skills or consulting services, including by electronic means as well as by telephone or any other verbal forms of assistance.
►‘supplier of technical assistance’ means:
(a) any natural or legal person or partnership which supplies technical assistance from the EU into the territory of a third country;
•(b) any natural or legal person or partnership resident or established in the EU which supplies technical assistance within the territory of a third country; or
•(c) any natural or legal person or partnership resident or established in the EU which supplies technical assistance towards a resident of a third country temporarily present in the EU
What is technical assistance?
Technology” “required” for the “development”, “production” or “use” of controlled goods remains under control even when applicable to non-controlled goods.
►DEVELOPMENT: Related to all phases prior to serial production, such as: design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, layouts
.
•PRODUCTION: All production phases, such as: construction, production engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality assurance.
•USE: Operation, installation (including on-site installation), maintenance (checking), repair, overhaul and refurbishing.
Exclusions
Exclusions in the EU under the new dual-use law
► Exempted if:
Supplied within or into the territory of or towards a resident of ally countries (Australia, Canada, Iceland, Japan, United Kingdom, New Zealand, Norway, Switzerland (including Liechtenstein) and the US);
In the form of information in the public domain or basic scientific research;
Supplied by authorities or agencies of a Member State in the context of their official tasks;
Supplied for the armed forces of a Member State on the basis of the tasks assigned to them;
Supplied in relation to certain space launch purposes in the EU;
oMinimum necessary for the installation, operation, maintenance (checking) or repair of items for which an export authorisation has been issued
► Authorisation requirement can be extended to non listed items
Test: Can you solve this?
Industry’s challenges: Controls on intangible items & emerging technologies
How to control?
• Alignment within Export Control Regimes
(emerging tech. are currently controlled in WA)
• Coordination with third countries?
What to control?
• Determine (new) interests that shall be protected
• Define & identify „emerging“ technology
• Define appropriate controls
(e.g. list-based controls, end-use(r) controls?)
Download Industry presentation
Export Controls - Industry and the chall
.
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