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Attorney Advertising. Prior results do not guarantee a similar outcome. European Export Control Update Naboth van den Broek Boston, 31 May 2012
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WilmerHale 2 Attorney Advertising. Prior results do not guarantee a similar outcome. 1.EU Export Control Regime - Overview 2.Dual-Use Goods & Technology 3.Military Goods & Technology 4.Sanctions 5.Recent Developments / Update
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WilmerHale 3 Attorney Advertising. Prior results do not guarantee a similar outcome. 1. EU Export Control: Overview National rules (27 Member States) Defense & Security= MbS prerogative Procedural rules and enforcement European rules Trade = EU prerogative International rules EU-level “Community” rules EU-level “intergovernmental” rules (binding and non- binding) Member States rules expanding scope of EU rules Autonomous Member State rules Member State procedural rules International rules
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WilmerHale 4 Attorney Advertising. Prior results do not guarantee a similar outcome. 2. EU Dual-Use Rules: General Community (EU) ‘Competence’ Largely regulated at EU level Regulation 428/2009 Dual-use items are: “… items, including software and technology, which can be used for both civil and military purposes, and shall include all goods which can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices.” (Reg. 428/2009)
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WilmerHale 5 Attorney Advertising. Prior results do not guarantee a similar outcome. EU Dual-Use Rules: Coverage General Single, regularly updated common list of items requiring export authorization “Catch all” for certain end-uses Items exported to final destination outside EU Some items (“sensitive” or “very sensitive”) are covered even for intra-EU transfer (see Annex IV parts I and II) Noteworthy Includes tangible technology (objects, documents, software) and intangible technology (skills, know-how) Includes physical transfer and electronic media, fax or phone Includes “technical assistance” Includes non-necessary information for patent applications Includes technology integrated into other products Non listed dual-use items: authorization may be required Specific national rules may apply/interpretations may differ
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WilmerHale 6 Attorney Advertising. Prior results do not guarantee a similar outcome. EU Dual-Use Rules: Procedures License must be obtained in Member State where the exporter is established “Exporter” = person on whose behalf the export declaration is made / who holds the power to determine the sending of the items Licensing procedures established by each Member State, including record-keeping If multiple Member States involved there is a “consultation” process (veto!) Enforcement and Implementation at Member State level Several types of licenses (“authorizations”)
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WilmerHale 7 Attorney Advertising. Prior results do not guarantee a similar outcome. 3. EU Military Export Controls Member State “Competence” - however EU rules exist: –Export outside the EU: Common position 2008/944/CFSP –Export within the EU: Directive 2009/43 In both cases: –Items listed in EU Common Military List (not exhaustive + regularly updated) (similar to U.S. ITAR but with some differences) –License Member State Bilateral issues
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WilmerHale 8 Attorney Advertising. Prior results do not guarantee a similar outcome. 4. EU Sanctions EU and Member State legislation –Enforcement & admin: Member State level Generally in accordance with international policies (UN, OSCE) EU sanctions “programs”: Iran, Libya, Syria EU arms embargos/asset freezes/prohibition of specific services: Afghanistan, Belarus, China, Eritrea, Iraq, North Korea, Zimbabwe, terrorists group etc. Focus on specific items, particularly arms, munitions; but sometimes broader (technology, financing, specific end-users, flight bans, investment) Generally no US-style general embargoes
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WilmerHale 9 Attorney Advertising. Prior results do not guarantee a similar outcome. Key Regulatory and Other Developments
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WilmerHale 10 Attorney Advertising. Prior results do not guarantee a similar outcome. 1.Dual-Use: Changes to the EU Dual-Use Rules Annex I to Reg. 428/2009 amended on April 2012 comes into force on 15 June 2012 Regulation 1232/2011 (December 2012): Introduction of five new EU General Authorizations (EU GEAs) (total: 6) EU001 – exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland (including Liechtenstein) and United States of America EU002 – export of certain dual-use items to certain destinations EU003 – export after repair/replacement EU004 – temporary export for exhibition or fair EU005 – telecommunications EU006 – chemicals New measures to increase transparency and improve enforcement including possibility to prohibit certain exporters from using EU GEAs. No EU GEA for Computers & Related Equipment; concern about human rights/monitoring Reminder: Brokering services covered
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WilmerHale 11 Attorney Advertising. Prior results do not guarantee a similar outcome. 2.Dual-use: EU Green Paper on Dual-Use Goods Proposed Reform: Amendment expected toward end- 2012 Key items expected: Common risk assessment approach of all export control authorities Improved exchange of info about suspicious transactions and licensing decisions Phase out NGAs in favour of EU GEAs Common approach to catch-all controls Working toward a fully integrated internal market for dual-use items (phase out internal controls) Coordinated enforcement across the EU + improved access to relevant info for customs enforcement
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WilmerHale 12 Attorney Advertising. Prior results do not guarantee a similar outcome. 3.Sanctions: Significantly more active sanctions landscape Sanctions are getting broader (Iran, Syria, Libya, terrorism blacklists) Basic approach continues to follow the UN, but more active stance and closer coordination with U.S. sanctions policy Member States continue to play an active role Judicial Protection continues to be a challenge Burma: suspended
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WilmerHale 13 Attorney Advertising. Prior results do not guarantee a similar outcome. 4. More active enforcement Expect to see continued increase in focus on export controls and enforcement Expect to see continued focus on sanctions Expect to see more coordinated action (?) Between MbS Between policy areas Focus on broader range of technologies (computers & related equipment, telecom equipment, software)
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WilmerHale 14 Attorney Advertising. Prior results do not guarantee a similar outcome. 5.More opportunities for risk mitigation and cooperation Active compliance audits but also an increased focus on compliance programs to mitigate risk and reduce penalties No formal Voluntary Disclosure process, but don’t forget regulatory cooperation… Judicial Protection (sanctions, Lisbon Treaty)
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WilmerHale 15 Attorney Advertising. Prior results do not guarantee a similar outcome. 6. Don’t forget other EU Regulations! EU regulatory policy is increasingly wide-spread and has an ever wider product and geographic scope Beyond export control and sanctions, there are other areas of regulation for US exporters to take into account, including: Environmental regulations (electrical goods, electronic waste, nanotech, biotech, etc.) Technical standards and regulations Competition rules (affecting licensing, reselling, distribution) Data protection & Privacy Sanctions for non-compliance can be severe US – EU Trade Cooperation (Working Group / FTA ?)
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WilmerHale 16 Attorney Advertising. Prior results do not guarantee a similar outcome. Thank you for your attention! Naboth van den Broek naboth.vandenbroek@wilmerhale.com
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