The Ministry of Industry (DGE / SBDU) has communicated on its website the regulatory provisions in force (updated 09.09.2014).
Classification of BDUs in the customs tariff (NC)
In its guide on the export of dual-use goods published on its website, the customs administration indicates that each tariff heading corresponding to a good that may fall under the regulation of the BDUs is associated with a code-bearing reference. (known as national additional code = CANA) indicating that a regulation of control can be applicable to it. This system constitutes an information system for operators and a control instrument for the customs service; it is based on the "correlation table" between the combined nomenclature codes and the dual-use list.
Also, the TARIC consultation database online on the European Union website, which mentions the BDU codes at the bottom of the "restrictions" sections, is based on this correlation table updated in March 2017 by the European Commission and feeds, in the classification of dual-use goods, the national IT systems for customs declarations of the Member States.
This table of 5880 lines, modifying the one of July 2014, remains unclear because the BDU codes only correspond to the articles or the first paragraphs of the list of dual-use goods, whereas the articles of the latest version of this list of the BDUs , published by Delegated Regulation (EU) 2016/ 1969 of 12 September 2016 the Commission consist of alphanumeric multiple paragraphs and subparagraphs. In addition, it fosters suspicion on the part of customs controllers resulting in untimely blocks of free goods for export and without the possibility of use for the manufacture or use of weapons of mass destruction or their means of delivery; or from the Directorate General of the Treasury of the Ministry of Finance, untimely blockages of payments or payments hindering fully legal exports.
In addition, this contributes to disrupt the ICS / ECS system for which the six-digit Harmonized System Code (HS6) will actually be required upon the entry into force of the EU Customs Code in June 2016, in accordance with this which was announced at the customs-business meeting in Dijon in May 2012. These classification errors appear by inverting this table of 5880 lines to constitute the table of the codes BDU and titles NC .
Dual-use items are considered to be prohibited within the meaning of Article 38 of the Customs Code , but may be exempted during export, transit and brokerage operations in the form of individual licenses. general or global, now issued by the dual-use service of the General Directorate of Enterprises of the Ministry of Industry (DGE), after a possible opinion of the inter-ministerial commission for dual-use goods.
The catch-all clause
Article 4 of the so-called " catch-all clause " gives Member States the power to prohibit exports of goods not listed in Annex I, " if the supervisory authorities are aware of a risk of misuse of the good for the production or use of weapons of mass destruction or their means of delivery ". In this case, the DGE notifies this prohibition to the person concerned and the goods are thus prohibited within the meaning of Article 38 of the Customs Code, or require the issuance of an export license for the purpose of final use. This prohibition is not motivated in accordance with the provisions of Article L311-5 of the Code of relations between the public and the administration, as it results from the foreign policy of France.
Violation of this prohibition is considered as an "export without declaration of prohibited goods" subject to severe criminal penalties provided for by Article 414 of the Customs Code.
This clause also applies if the exporter is informed of possible misappropriation of export-free hardware or technology for malicious purposes.
According to the definition of dual-use goods given by the SBDU, in accordance with this European regulation dual-use goods are:
" goods, equipment - including technology, software, intangible or intangible know-how - likely to be used both civilian and military or which may - in whole or in part - contribute to the development, production, handling , operation, maintenance, storage, detection, identification, dissemination of weapons of mass destruction " (ADM - nuclear, biological, chemical, etc.)".
The official definition is given in Article 4 of amended Regulation No 428/2009, by this sentence:
"... the goods in question are or may be intended, in whole or in part, to contribute to the development, production, operation, operation, maintenance, storage, detection, the identification or spread of chemical, biological or nuclear weapons or other nuclear explosive devices, or the development, production, maintenance or storage of missiles capable of serving as a vehicle for such weapons . "
This expression "massive destruction" corresponds for example to the ravages caused during two world wars and during the local wars in Vietnam, Iran and Iraq, in Afghanistan, or for two years in Syria. These terrible conflicts led to the extermination of populations of cities or whole valleys.
Also, from a legal point of view, the 'clause catches any' clause in Article 4 of Regulation No 428/2009 as amended may be implemented for goods not listed in Annex I to that Regulation, but still susceptible to produce equivalent means of extermination, and not for hijackings for terrorist purposes (for example to make homemade bombs using butane gas, ammonium nitrate or other), without the possibility in a single action to produce a real one. "crime against humanity",otherwise any commercially available goods that are likely to be used as "weapons by destination", without tangible evidence communicable to Justice, could be subject to an export ban, which would constitute an excess of power on the part of the Administration.
This "catch-all clause" results from transposition into European law, at the same time:
- of the MTCR Directive No. 7;
- General Provisions 1a and 1b of the Australia Group;
- a decision taken on 28 May 2004 at the end of the NSG plenary session in Goteberg (Sweden).
The MTCR thus recommends that governments control "exports intended for use, in whole or in connection with systems of launching weapons of mass destruction other than piloted aircraft" . However, this does not exclude an airliner intended to be piloted by suicidal and inexperienced pirates with sophisticated means of navigation systems included in the list of dual-use items to hit a specific target at a speed of 800 km / h.
An analysis note by Cedric Poitevin, researcher at the GRIP (Research and Information Group on Peace and Security) showed on January 23, 2009 that this "catch clause" had many advantages as an instrument to fight against proliferation.
On the contrary, Albert Castel considered that this provision had many more disadvantages than advantages during an interview with the professional training organization Altaprisma , published by the Observatory of Customs and Taxation Regulations (ORDF). December 12, 2015
Operation of customs controls
Under the Customs Code, customs offices carry out documentary (or physical) checks as soon as they are declared or return four months back (1st level ex-post controls), while regional and national investigation services come back three times. years back (2nd level ex-post controls). The unlicensed export of a dual-use item, or any fraudulent practice constituting an "export without declaration of prohibited goods" within the meaning of Article 426 of the Customs Code, shall be considered as a customs offense under the second paragraph of Article 414 of the Customs Code . This additional paragraph of Article 414 of the Customs Code (in force as of 1 January 2014) is the result of Law 2011-266 of 14 March 2011 adopted pursuant to Article 24 of Regulation 428/2009 as amended inviting member states to legislate on the application of this European text. They may lead to the seizure of goods (and their means of transport), the interception by customs of goods in transit, fines of up to three times the value of the goods, as well as maximum imprisonment of 5 years.
Pursuant to Article 411-5 of the Penal Code , offenses for "intelligence with a foreign power" , giving rise to even more severe penalties, may be established by judicial customs officers, or judicial police officers, with retroactivity of ten years.
Classification of "unlicensed" goods
The competence of the classification of dual-use goods (BDU) now belongs to the new service of the DGE. However, the documentary and physical control of the goods declared for export remains the competence of the customs administration (DGDDI) which can apply the rules of the prohibitions; similarly, the financial regulations for exports, transit and brokerage may be controlled by the Directorate General of Treasury and Economic Policy (DGTPE) and be subject to prohibitions. Any operation that is poorly explained may lead to suspicions on the part of the administrative authorities leading to unnecessary delays or harassment.
In its guide on the export of dual-use goods , the customs administration recommends that manufacturers ask the DGCIS (SBDU) to confirm negative rankings of high-tech products not involved in the manufacture of weapons of mass destruction. to avoid barriers to exports. It consults the SBDU in case of doubt about the strategic nature of a product, material, or equipment.
This procedure presents the risk for the exporter to obtain an arbitrary prohibition on the export of his material under the provisions of the "catch-all clause" if he makes a request for classification at the SBDU, or a customs several weeks of the declared merchandise, or even a financial block on the part of the General Directorate of the Treasury.
Restrictive measures on exports
Restrictive measures against Iran, North Korea, Russia, Syria, Zimbabwe ...
Regulations under the European Union's Common Foreign and Security Policy totally prohibit imports and exports of goods included in the Annexes, or permit derogations, in the form of licenses, for proven civil uses. Licensing and control procedures are the same as for dual-use items.
The restrictive measures against these countries are the result of the many resolutions voted by the United Nations Security Council. Those against Iran were strengthened following the vote of the United Nations Security Council Resolution No. 1929 of 9 June 2010, through a decision of the Council of the European Union dated 26 July 2010, published in the Official Journal of the European Union No L 195 of 27 July 2010.
This decision included several subtitles:
- RESTRICTIONS ON EXPORTS AND IMPORTS
- RESTRICTIONS ON THE FINANCING OF CERTAIN UNDERTAKINGS
- RESTRICTIONS ON FINANCIAL SUPPORT FOR COMMERCIAL EXCHANGES
- FINANCIAL SECTOR
- TRANSPORT SECTOR
- RESTRICTIONS ON ADMISSION
- FREEZING FUNDS AND ECONOMIC RESOURCES
- OTHER RESTRICTIVE MEASURES
- GENERAL AND FINAL PROVISIONS
The corresponding prohibitions were not limited to goods and technologies that could contribute to enrichment, reprocessing or heavy water activities, or the development of nuclear weapons delivery systems ... and other assets dual use; they also covered essential equipment and technologies for the following major sectors of the Iranian petroleum and natural gas industry:
(b) liquefied natural gas;
This decision was immediately applicable. The previous regulations were then repealed and replaced by Regulation No 267/2012 of 23 March 2012 indicating the goods and technologies covered by the new restrictive measures, as well as the activities. These sanctions were eased in 2014 and are likely to change further as a result of Iran's new policy.
Sanctions were imposed on other countries, including Russia, following events in Crimea and on the Russian and Ukrainian border .
Countries subject to international sanctions are now covered by a table of import and / or export trade restrictionspublished by the Directorate General of Customs and Excise on 31 August 2015.
Restrictions on civil helicopters, tear gas and others
The goods in question, which can be used for the maintenance of order, are subject to national regulations in application of the European dual-use rule, which allows, in the alternative, the Member States to publish restrictive regulations for reasons that of security.
The procedures and controls also have the same for these goods not taken at European level.
The Export Arms Regulations (EAR)
In the US, strategic goods fall under Chapter 774 of the Export Administration Regulation (EAR) in the Federal Register , which is entitled Commerce Control List (CCL) , and whose classification numbers, called the Export Control Classification Number (ECCN) are coded on the same principle as that of the European List of Dual-Use Goods, c Annex I to Regulation No 428/2009 as amended.
But to these articles and paragraphs coming from the lists published by the multilateral regimes of control, the US adds headings called:
- "EAR99" for various security reasons, including the fight against terrorism;
- "9x500 Series" and "600 series" in effect since the Export Control Reform (ECR) of May 24, 2013 for the components of space ships and satellites not included in the military list (USML) of the ITAR regulations relating to American war material.
These three lists added to the lists of multilateral regimes for the fight against weapons of mass destruction correspond respectively to goods produced in the United States for which an American export license is required for various reasons depending on the country of destination or the consignee.
These lists, although quite complete with regard to the strategic nature of the goods concerned, are not exhaustive and do not prevent the application of the "catch-all clause" for goods suspected of a malicious destination.
The US control services have the Militarily Control Technologies List (MCTL) consisting of thousands of pages of technical explanations, which was published and updated on the Internet until 2012 by the Defense Technical Information Center (DTIC), but which is now confidential.
MCTL allowed exporters to understand the US EAR and ITAR regulations and to admit the "catch-all clause" when it was imposed on them. It consisted of three parts entitled:
- Part I, "Weapons Systems Technologies ,"
- Part II, "Weapons of Mass Destruction Technologies," .
- Part III, "Developing Critical Technologies ,"
Moreover, the control services of the member countries of the European Union no longer have at their disposal this means of interpretation of the lists of strategic goods to fight against the free goods trade in the export facilitating the development of equipment terrorist use and the proliferation of weapons of mass destruction.
Albert Castel's service offer
avoid the risk of untimely impediments
to the export of goods not subject
to the regulation of dual-use
goods, on the goods by the customs
administration, on the down
payments or payment from abroad
by the treasury management of
the Ministry of Economy and
Finance (which happens frequently),
exporters are invited to submit,
at the time of customs declaration,
an expert report on a commodity
intended for export indicating
its classification in the nomenclature
of the harmonized system, proving
that it is free for export (if
it is) and specifying (where
appropriate) that it poses no
risk deterrence of its civilian
use for the production or use
of weapons of mass destruction
to avoid the application of
Ministry of Industry (SBDU)
issues certificates indicating
that equipment is not included
in the list of duplicate goods
at the request of the companies
concerned, but these "unlicensed
files" present the risk
of application of the "catch-all
clause" requiring the exporter
to apply for export export.
catch-all clause is often decided
late and arbitrarily (sometimes
abusively) by the French authorities
but, since it is not retroactive,
it can not be decided after
the event if the customs declaration
has taken place. It is therefore
preferable to obtain a private
appraisal certifying (if this
is the case) that a property
is not subject to the regulation
of property dual purpose.
regulation of dual-use goods
is almost common to all acceding
countries under the control
regimes (WA, MTCR, NSG, AG and
OPCW). So, the attestation of
an expert with long experience
of the technical characteristics
of dual-use (and the classification
of goods in the harmonized system)
can be used not only for French
exporters but also to those
of other countries.
to obtain this expertise, it
is recommended to make the request
to Albert Castel (specialist
of dual-use goods and of the
harmonized system) using the
form placed on the contact
by email at: firstname.lastname@example.org,
or by phone at +33 6 60
63 05 07.
Page updated in April 2018
© Albert Castel April 2010 - All rights reserved