Dual-use items export control

- What is meant by ‘’dual-use’’, what is at stake ?
‘’Items, including software, technology, immaterial & non tangible exchanges, which can be used whether for peaceful or for destructive purposes, such as military equipment or capacities of mass destruction''. This includes ''all goods which can be used for assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices'' (EC 428/2009).

Dual-use items export control remains the core of counter proliferation policies.

- Dual use goods licensing in France, SBDU is operated from within the Ministry in charge of Industry and mobilizes experts from the Customs, Defense, Environment , MOFA …

In France, the upsizing of export control on dual-use items has been completed by spring 2010. The Dual-Use Goods Control Office (in French SBDU : ''Service des Biens à Double Usage'') has been assigned with a wider range of tasks and now hosts a team of 16 experts from different government agencies (Industry, Defence, Customs, Atomic energy, Foreign affairs). SBDU is competent for dual-use export licensing and instructs – most of the time, decides on – licence applications. It is also in charge of channelling most sensitive files through the Inter-Agency Committee on Dual-Use Items (in French CIBDU, ''Commission Interministérielle des Biens à Double Usage''), from within the Ministry of Industry. CIBDU, chaired by the French MOFA, is equivalent to the Inter-Agency Commission for Military Exports Control (in French: CIEEMG, ''Commission Interministérielle d’Etude des Exportations de Matériels de Guerre'').

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• The new comprehensive practice of dual-use licensing aims at rationalizing and shortening licence processing, for the benefit of French companies, while improving the enforcement of Law and regulations. It covers individual licences (first step when entering the D.U. export business or a ''filter'' for entering in the trade business of sensitive items); general national licences (industrial goods; chemicals; biological goods; high quality graphite); global licences (benefiting one specific firm, for specific goods and destinations, but in unlimited quantity and value); and the European Community general authorisations (one being valid by June 2010, with six under negociation). SBDU is also being active in the field of Internal Compliance Programmes, notably through the wide diffusion of its newsletter, ‘’Janus Express’’, among Business and Industry. This medium of information, with regular publication starting from 2010, is also tuned to the aim of steering an interactive and trustful dialogue with the Administration.

• The list of items submitted to export controls fully reflects those from the four main export control fora, with some additions from the Chemical Weapons Convention (CWC). The European Regulation (EC) n° 428 / 2009 of 5. May 2009 is binding in its entirety and directly applicable in all Member States. It aims at preventing distortion of competition among operators in the E.U single market.

• Principle n° 1: Free circulation throughout the European Community. Exceptions for a very limited number of items, listed in Annex IV of the European Regulation. Licensing for dual-use goods and technologies also applies to technological datas and to related immaterial transactions as well as to third country to third country brokering, transhipment or intermediation;

• Principle n° 2 : Community general authorisation for exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland, United States, established by annex II of the same Regulation. Seven other general authorisations underway (goods of limited value; fairs & exhibitions; after-sale servicing, …).

• Principle n° 3: The applications for an export authorisation (licence) are subject to national policies and decisions (by national licencing institutions), national enforcement and, when needed, national sanctions. The French administration of Customs, as well as Police and the Judiciary, are the main actors of law enforcement in the sector of dual-use export.

The licensing decision process
Exporter’s request for licence

- Enforcement

The most restricted items are those from Annex IV attached to the European Regulation (EC) 428/2009:

• most sensitive items from Annex I
• items of stealth technology
• items of the Community strategic control (e.g. explosive detonator firing sets, cryptography)
• items of the MTCR technology
• items of the Chemical Weapons Convention (CWC)
• items of the Nuclear Suppliers Group (NSG) technology

• - The Catch-all clause allows control on non-listed items. It is triggered in relation to weapons of mass destruction programs & countries subject to an arms embargo:
  «An authorisation shall be required for the export of dual-use items not listed in Annex I, if the exporter has been informed by the competent authorities of the Member State in which he is established that the items in question are or may be intended, in their entirety or in part, for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons”.

A specific authorisation is required for intra-Community transfers of dual-use items listed in Annex IV of the European regulation. No general authorisation is issued for those items. There are other restrictions to free movement of goods within the Community.

Circumstantial restrictions to trade exports decided at international or European levels are tabled on the website of the Directorate general of Treasury

- Dual use export control stems from the following international control regimes

• European Lists attached to Regulation (EC) 428 of 5. May 2009 - A list of 225 pages (2,200 products involving exports by 300 to 500 companies and 2,500 applications/year, as for France)
• Missile Technology Control Regime (MTCR) - which elaborates and up-dates lists of items for control, in this field;
• Nuclear Suppliers Group (NSG), which elaborates and up-dates lists of control for civilian-use nuclear items;
• Wassenaar Arrangement (WA), which elaborates and up-dates lists of control, for conventional dual-use goods and conventional arms;
• Australia Group (AG), which elaborates and up-dates lists of control, in the chemical and biological fields of dual use;
• Chemical Weapons Convention (CWC) - Both a prohibition and a control regime for certain precursors;
• Biological & Toxin Weapons Convention (BWC) – A prohibition regime (no trade control element);
• United Nations Register of Conventional Arms – A trade transparency regime without trade control element.

Other important sources of information (in French):
Handbook for dual-use exporters in France
The main laws & regulations enforced in France