CUSTOMS EXPERTISES

              Export control of dual-use goods

For security reasons, dual-use goods are subject to "prohibitions" and are therefore either prohibited for export, transit or trading; is subject to authorization. The assistance of an expert in dual-use goods is useful in the case of export of high-tech products because of the complexity of this regulation. 

The export control of these so-called "strategic" products and technologies due to possible misuse of their normal civilian use is explained in detail on the page of this site entitled Export Control of Dual-Use Goods ; and the list of the goods concerned, divided into 9 categories, is reproduced in the dual-use list page (in french).

As for the American regulation of the US Export Control, it is reproduced in the pages of this site entitled:

These constraints are, indeed, not only French, in accordance with the EU regulations on dual-use goods (and on goods subject to restrictions to certain destinations), but also US (for goods of US origin re-exported to other destinations) in accordance with the Export Administration Regulations (EAR) published in Chapter VII of the Electronic Code of Federal Registrations, as the United States considers that their legislation applies worldwide.

A summary of these provisions is presented below, after disclosure of the list of BDUs by category:

The dual-use items listed by the European Union are fully visible by clicking on the following links:

CATEGORY 0      Nuclear materials, equipment and installations   }   

CATEGORY 1      Special materials and related equipment }

CATEGORY 2      Material processing }

CATEGORY 3      Electronic }

CATEGORY 4      Calculators }

CATEGORY 5      Telecommunications and "information security" }

CATEGORY 6      Sensors and lasers }

CATEGORY 7      Navigation and aero-electronics }

CATEGORY 8      Marine }

CATEGORY 9      Aerospace and propulsion }

In France, dual-use goods are subject to the provisions of amended Regulation No. 428 of May 29, 2009, which states in article 2:

"Dual-use goods, products, including software and technology, which may be used for both civilian and military purposes, include all goods that can both be used for non-explosive purposes and enter in any way in the manufacture of nuclear weapons or other nuclear explosive devices ; "

History of the BDUs

Following the attacks of 11 September 2001 in New York and the terrorist threats following the events in Iraq and Afghanistan, a tightening of dual-use controls was introduced by the recast of the Council of the European Union's Regulation No. 1334 22 June 2000 by means of Council Regulation No 428/20090, which entered into force on 27 August 2009 and has since been amended several times; and, in France, by the publication in the JORF of decrees and arrested modifying the organization of the controls, then to that of the law 2011-266 of March 14, 2011 relative the fight against the proliferation of weapons of mass destruction and their means of delivery.

Regulation of BDUs

Having regard to the introductory recitals Nos 14 and 15, the amended Regulation No 428/2009 follows the commitments of the European Union made in Thessaloniki on 19 and 20 June 3003 by the European Council Declaration on Weapons of Mass Destruction (then to that of Brussels of 12 December 2003), and results from Resolution No. 1540 of the United Nations Security Council of 28 April 2004 to combat the proliferation of weapons of mass destruction and their means of delivery:

The dual-use items (BDUs) listed in Annex 1 to the amended Regulation No 428/2009 are divided into ten categories (from 0 to 9) listing the lists of assets established by five international bodies:

the Wassenaar Arrangement (WA),
he Nuclear Suppliers Group (NSG),
the Australia group (AG),
the Missile Technology Control Regime (MTCR) and
the Organization for the Prohibition of Chemical Weapons (OPCW).

The application of these regulations is the responsibility of the dual-use goods service (SBDU) created by order of March 18, 2010 (JORF of March 20, 2010), which depends on the general management of companies DGE, ex- (DGCIS) to Ministry of Industry. An inter-ministerial commission for dual-use goods, created by decree of 18 March 2010, chaired by the Ministry of Foreign Affairs, and whose secretariat is provided by the SBDU, is seized in case of difficulties in the interpretation of these European regulations.

The items in the list of dual-use items are divided into items and sub-paragraphs from categories 0 to 9 above.

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 december 2018 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 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 (EU) Delegated Regulation 2018/1922 of 10 october 2018 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 .

Export licenses

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 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: 
a) refining; 
(b) liquefied natural gas; 
c) exploration; 
d) production

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.

To 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 "catch-all clause".

The 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.

The 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.

The 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.

Also, 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 page.

Or by email at: albert.castel@technidouanes.com, or by phone at +33 6 60 63 05 07.

Page updated in May 2019