CELEX: 51992PC0317
Language: en
Date: 1992-08-31
Title: Proposal for a COUNCIL REGULATION (EEC) on the control of exports of certain dual-use goods and technologies and of certain nuclear products and technologies

30 . 9 . 92                            Official Journal of the European Communities                            No C 253 / 13
                                                              II
                                                      (Preparatory Acts)
                                                 COMMISSION
              Proposal for a Council Regulation (EEC) on the control of exports of certain dual-use goods
                             and technologies and of certain nuclear products and technologies
                                                       (92/C 253/05)
                                                     COM(92) 317 final
                                     (Submitted by the Commission on 31 August 1992)
 rHE COUNCIL OF THE EUROPEAN COMMUNITIES,                         subsequently be modified or supplemented in accordance
                                                                  with the same procedure;
 tiaving regard to the Treaty establishing the European
 Economic Community, and in particular Article 113                Whereas to this end the system to be put in place should
 :hereof,                                                         impose an obligation to have an authorization prior to
                                                                  the exportation of goods and technologies covered by
                                                                  this Regulation ; whereas this necessitates a clear defi­
                                                                  nition of the scope of this Regulation and the procedures
 Having regard to the proposal from the Commission,               for its implementation ;
                                                                  Whereas even where goods and technologies are not
Having regard to the opinion of the European                      listed among those covered by the complementary regu­
Parliament,                                                       lation mentioned above, Member States should be able
                                                                  to intervene in exceptional circumstances ;
Whereas in the course of preparations for the completion
of the internal market, in accordance with Article 8 a of         Whereas arrangements should be made to ensure the
the Treaty, it has become clear that there is a need for          necessary exchange of information between the various
common rules governing the export to third countries of           authorities in the Community responsible for enforcing
certain dual-use goods and technologies and of certain            compliance with this Regulation ;
nuclear products and technologies, that is to say goods
which may be used for both civil and military purposes ;
                                                                  Whereas in view of the considerable experience of the
                                                                  Member States' authorities and the Commission in
                                                                  application of Council Regulation (EEC) No 1468 /81 of
Whereas to avoid any possibility of deflection of trade,          19 May 1981 on mutual assistance between the adminis­
effective controls, based on common standards, should             trative authorities of the Member States and cooperation
be ensured, on exportation of the aforesaid goods and             between the latter and the Commission to ensure the
technologies, at the Community's external borders whilst          correct application of the law on customs or agricultural
ensuring that Member States remain in a position to               matters ('), as amended by Regulation (EEC) No
meet their international commitments ;                            945/87 (2), the said Regulation should be applied in the
                                                                  present context ;
Whereas the action conducted at Community level
should not exceed those requirements which are essential          Whereas provision should be made for implementing
for the completion of the internal market; whereas the            measures of strictly limited duration aimed at reducing
decisions concerning the lists of goods and technologies          the danger of deflection of trade during the initial phase
and destinations which are subject to control, as well as         in which the competent authorities in the Member States
the explicit criteria to be applied when deciding to grant        are adjusting to the requirements of this Regulation ;
an export authorization, are clearly of a strategic nature
and consequently fall within the competence of the
Member States ; whereas the lists, when drawn up, will
be published in a complementary regulation to be                  O OJ No L 144, 2. 6 . 1981 , p. 1 .
adopted by the Council ; whereas, if necessary, they will         O OJ No L 90, 2. 4 . 1987 , p. 3 .
 ---pagebreak--- No C 253 / 14                        Official Journal of the European Communities                               30 . 9 . 92
Whereas the Treaty establishing the European Atomic            (c) 're-export' means a transaction of the kind referred
Energy Community contains provisions concerning the                 to in Article 182 of the abovementioned Regulation
control of exports of nuclear materials by the                      by which non-Community goods, as well as related
Community from its territory; whereas, in these                     technology leave the customs territory of the
conditions, this Regulation is not applicable to them ;             Community;
                                                               (d) 'exporter' means any natural or legal person on
Whereas the Ministers of Foreign Affairs of the                     whose behalf the customs declaration is made and
Community adopted, on 20 November 1984, the                         who is the owner of the goods or who has similar
Declaration of Common Policy, which was subsequently                powers of disposal over them, as well as any natural
adopted by Spain and by Portugal, which covers in                   or legal person who is responsible for related tech­
particular the arrangements concerning intra-Community              nology leaving the Community;
transfers of plutonium and of uranium enriched to more
than 20 % , as well as installations and technology            (e) 'competent authorities' means the authorities in each
relating to reprocessing, to enrichment and to the                  Member State given responsibility for ensuring that
production of heavy water ;                                         this Regulation is implemented ;
                                                               (f) 'customs declaration' means the act whereby a
Whereas this Regulation should not apply to goods                   person indicates in the prescribed form and manner
covered by Article 223 of the EEC Treaty,                           the wish to place goods under the export procedure.
                                                                                         TITLE 2
HAS ADOPTED THIS REGULATION :
                                                                                          Scope
                                                                                         Article 3
                         TITLE 1
                                                               Subject to Article 4, an authorization shall be required
                         General                               for the export and re-export to third countries of the
                                                               dual-use goods which, following agreement by the
                         Article 1                             Member States, are the subject of a complementary
                                                               regulation to the present Regulation .
The purpose of this Regulation is to ensure that Member
States apply the necessary control measures , in
accordance with common standards , to the exportation                                    Article 4
or re-exportation from the Community of certain                An authorization shall be required for the export or
dual-use goods and technologies and of certain nuclear         re-export of any goods not listed in the complementary
products and technologies.                                     regulation provided for in Article 3 if the exporter is
                                                               aware, or has been informed by his government, that the
                                                               goods in question are, in their entirety or in part,
                         Article 2                             intended for use in connection with the development,
                                                               production, maintenance, detection, identification or
For the purposes of this Regulation :                          dissemination of conventional, chemical, biological or
                                                               nuclear weapons and the development, production,
                                                               maintenance or storage of missiles capable of delivering
                                                               such weapons .
(a) 'dual-use goods' means any of the goods, related
    technologies (technical and scientific information,
    including know-how and engineering expertise), as          This Article shall not apply to the countries which
    well as certain nuclear products and technologies,         benefit from the provisions of Article 7 (3).
    which can be used for both civil and military
    purposes and which appear on a list to be enacted in                                 Article 5
    a complementary regulation to this Regulation ;
                                                               Notwithstanding Article 4, the competent authorities
                                                               may prohibit the export or re-export of goods not listed
(b) 'export' means a procedure referred to in Article 161      in the complementary regulation provided for in Article
    of Council Regulation (EEC) No . . . ./92 (estab­          3 ; they shall immediately so inform the Commission and
                                                               the other Member States , who shall consider the matter.
     lishing a Community Customs Code) under which
    Community goods temporarily or definitively leave
    the customs territory of the Community, as well as a       A decision on the repeal or continuation of this measure
     transaction by which related technology leaves the        shall be taken by the Council on a proposal from the
    Community ;                                                Commission .
 ---pagebreak--- 30 . 9 . 92                            Official Journal of the European Communities                             No C 253 / 15
                          TITLE 3                                 (b) respect of human rights in the country of final
                                                                       destination ;
                    Export authorization
                                                                  (c) the internal situation in the country of final desti­
                          Article 6                                    nation, with reference to the existence of tensions or
 1 . An export authorization shall be granted by the                   internal armed conflicts ;
competent authorities in the Member State in which the
exporter is established. The authorization shall be valid         (d) the preservation of regional peace, security and
throughout the Community.                                              stability;
2 . An export authorization shall be valid only if the           (e) the national security of the Member States and of
interested party meets the conditions attached to it.                  territories whose external relations are the responsi­
                                                                       bility of a Member State as well as that of friendly
                                                                       and allied countries ;
3.      Member States shall furnish the Commission with a
list of the national authorities empowered to issue export       (f) the behaviour of the buyer country with regard to
authorizations for dual-use goods .                                    the international community, as regards in particular
                                                                       its attitude to terrorism, the nature of its alliances,
                                                                       and respect for international law ;
4 . The Commission shall publish the list of the auth­
orities referred to in paragraph 3 in the C Series of the
 Official Journal of the European Communities.                   (g) the existence of a risk that the equipment will be
                                                                       diverted within the buyer country or re-exported
                                                                       under undesirable conditions .
                          Article 7       1
1 . An export authorization shall be issued for each                                          Article 9
export or re-export transaction .                                 1.     Exporters must supply the competent authorities
                                                                 with all information in their possession relevant to an
                                                                 application for an export authorization.
2. The competent authorities may apply simplified
formalities to exporters who so request ; in particular,
they may issue a general authorization for a type or             2 . A Member State which has granted an export auth­
category of dual-use goods as well as for one or more            orization may suspend or withdraw it where it has good
third countries .                                                reason to suspect that the authorization was obtained by
                                                                 means of false information or where the exporter has
                                                                 failed to comply with the obligation in paragraph 1 .
3. A general authorization may be granted to any
exporter who so requests for dual-use goods exported to
the countries which are set out in a list laid down in the       3.      Where a competent authority refuses, suspends or
                                                                 revokes an authorization it shall inform the other
complementary regulation provided for in Article 3 .
                                                                 competent authorities accordingly, giving the reasons for
                                                                 its decision .
4. Paragraphs 2 and 3 are not applicable to the
dual-use goods appearing in a specific list to be laid                                        TITLE 4
down in the complementary regulation provided for in
Article 3 .
                                                                                      Customs procedures
                                                                                            Article 10
                          Article 8
                                                                 The export authorization shall be presented in support of
In deciding whether to grant an export authorization the         the export declaration, at the time of completing customs
competent authorities shall haVe regard to the following         formalities for export, to the customs office responsible
criteria :
                                                                 for handling that declaration.
(a) respect for the international commitments of the                                        Article 11
     Member States of the Community, in particular the
     sanctions decreed by the Security Council of the            1 . The competent authorities referred to in Article 6
     United Nations and those decreed by the                     (3) may determine that customs formalities for the
     Community, agreements on non-proliferation and              export of the goods covered by this Regulation may be
     other subjects, as well as other international              completed only at customs offices empowered to that
     obligations ;                                               end .
 ---pagebreak--- No C 253 / 16                         Official Journal of the European Communities                                  30 . 9 . 92
2. Member States taking the option offered by                   the endl of the calendar year in which the transaction
paragraph 1 shall inform the Commission of the customs          referred to in paragraph 1 took place, and must be
offices duly empowered.                                         produced to the competent authorities on request.
The Commission shall publish this information in the C
Series of the Official Journal of the European                                            Article 14
 Communities.
                                                                In order to ensure that this Regulation is properly
                                                                applied, each Member State shall take whatever
3. Title IX of Commission Regulation (EEC) No                   measures are needed in its domestic law to enable the
 1214/92 (x) and Article 26 of Appendix I to the                competent authorities :
Convention on a common transit procedure concluded
on 20 May 1987 by the Community and the EFTA
countries shall apply where carriage of goods covered by        (a) to gather information on any order or transaction
this Regulation is effected between two points in the                involving dual-use goods ;
Community through the territory of an EFTA country.
                         TITLE 5                                (b) to enter the business premises of persons with an
                                                                     interest in an export or re-export transaction in order
                Administrative cooperation                           to establish that the control measures are being
                                                                     properly applied.
                        Article 12
1 . Acting in liaison with the Commission, Member                                         Article 15
States shall take all appropriate measures to establish
direct cooperation and exchange of information between          Verification of the final destination may be required
their competent authorities.                                    from third countries .
2. Regulation (EEC) No 1468 / 81 , and in particular
the provisions on the confidentiality of information, shall                                TITLE 7
apply mutatis mutandis.
                                                                                 General and final provisions
                         TITLE 6
                                                                                         Article 16
                    Control measures
                                                                Member States shall take all necessary measures to
                                                                satisfy themselves that persons with an interest in export
                        Article 13                              or re-export transactions are fully aware of their
                                                                obligations under this Regulation.
1 . Any export or re-export transaction covered by this
Regulation must be supported by appropriate documen­
tation. In particular, commercial documents such as
invoices, manifests and other dispatch and transport                                     Article 17
documents must contain sufficient information to allow
the following to be identified with certainty :                 Each Member State shall designate a representative
                                                                responsible for all contacts with the other Member States
                                                                and the Commission concerning the control system.
— the description of the goods,
— the quantity and weight of the goods,                                                   Article 18
— the name and address of the exporter, and of the              Each Member State shall determine the penalties to be
    consignee.                                                  imposed in the event of breach of the provisions of this
                                                                Regulation and, where appropriate, of any national
2.    Persons with an interest in export or re-export           measures relevant to its application ; such penalties must
transactions covered by this Regulation must keep               be effective, proportionate and dissuasive.
detailed commercial records of those transactions.
                                                                                          Article 19
3.    The documents and records referred to in para­
graphs 1 and 2 must be kept for at least three years from       Each Member State shall inform the Commission of the
                                                                measures taken        for the     implementation    of this
O OJ No L 132, 16. 5 . 1992, p. 1 .                             Regulation.
 ---pagebreak--- 30 . 9 . 92                        Official Journal of the European Communities                           No C 253 / 17
The Commission shall pass on this information to the                                  Article 21
other Member States. Every three years it shall present a
report to the Council and the European Parliament on         The provisions of this Regulation do not affect :
the implementation of this Regulation.                       — the application of Article 223 of the Treaty estab­
                                                                 lishing the European Economic Community,
                       Article 20                            — the application of the Treaty establishing the
                                                                 European Atomic Energy Community to exports of
Within one month of the adoption of this Regulation the          nuclear materials from the territory of the
Commission shall take additional implementing                    Community.
measures, to apply for not more than one year, aimed at
reducing the danger of deflection of trade during the                                 Article 22
initial phase in which the competent authorities are         This Regulation shall enter into force on 1 January 1993 .
adjusting to the requirements of this Regulation. Such
measures may not involve any control measures at the         This Regulation shall be binding in its entirety and
Community's internal borders.                                directly applicable in all Member States .