Council Regulation (EC) No 428/2009Show full title

Article 2 U.K.

For the purposes of this Regulation:

1.

‘dual-use items’ shall mean 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;

2.

[F1 ‘export’ shall be construed as follows—

(1)

it only includes removal from the United Kingdom to a destination outside of the United Kingdom and the Isle of Man;

(2)

it includes shipment as stores;

(3)

in relation to a vessel, vehicle, submersible vehicle or aircraft, it includes taking it out of the United Kingdom, notwithstanding that it is conveying goods or passengers and whether or not it is moving under its own power;

(4)

it includes transmission of software or technology by electronic media, including by fax, telephone, email or any other electronic means to a destination outside of the United Kingdom; it includes making available in an electronic form such software and technology to legal and natural persons and partnerships outside of the United Kingdom. Export also applies to oral transmission of technology when the technology is described over the telephone.]

3.

‘exporter’ shall mean any natural or legal person or partnership [F2 resident or established in the United Kingdom]:

(i)

on whose behalf an export declaration is made, that is to say the person who, at the time when the declaration is accepted, holds the contract with the consignee in the third country and has the power for determining the sending of the item out of the [F3 United Kingdom to a destination outside of the United Kingdom and the Isle of Man. If no export declaration has been made, the exporter means the person who holds the contract with the consignee in the third country and has power for determining the sending of the item out of the United Kingdom to a destination outside of the United Kingdom and the Isle of Man.] If no export contract has been concluded or if the holder of the contract does not act on its own behalf, the exporter shall mean the person who has the power for determining the sending of the item out of the [F4 United Kingdom to a destination outside of the United Kingdom and the Isle of Man];

(ii)

which decides to transmit or make available software or technology by electronic media including by fax, telephone, electronic mail or by any other electronic means to a destination outside [F5 of the United Kingdom].

Where the benefit of a right to dispose of the dual-use item belongs to a person established outside the [F6 United Kingdom] pursuant to the contract on which the export is based, the exporter shall be considered to be the contracting party established in the [F6 United Kingdom];

4.

‘export declaration’ shall mean the act whereby a person indicates in the prescribed form and manner the wish to [F7 export] dual-use items F8 ...;

5.

‘brokering services’ shall mean:

• the negotiation or arrangement of transactions for the purchase, sale or supply of dual-use items from a third country to any other third country, or

• the selling or buying of dual-use items that are located in third countries for their transfer to another third country.

For the purposes of this Regulation the sole provision of ancillary services is excluded from this definition. Ancillary services are transportation, financial services, insurance or re-insurance, or general advertising or promotion;

6.

[F9 ‘broker’ means:

(i)

any person resident or established in the United Kingdom who carries out brokering services from the United Kingdom into the territory of a third country; or

(ii)

any United Kingdom national who carries out brokering services from the United Kingdom into the territory of a third country;

(iii)

any United Kingdom person who carries out brokering services from a country within the European Union into the territory of another third country;

(iv)

any person resident or established in the European Union who carries out brokering services from the United Kingdom into the territory of a third country; or

(v)

any European Union national who carries out brokering services from the United Kingdom into the territory of a third country;

6A.

‘European Union national’ means a natural person who is a national of a Member State of the European Union;

6B.

‘third country’ means any country or territory outside of the United Kingdom and the Isle of Man;]

7.

‘transit’ shall mean a transport of [F10 non-United Kingdom] dual-use items entering and passing through the [F11 United Kingdom with a destination outside of the United Kingdom and the Isle of Man];

7A.

[F12 ‘United Kingdom national’ means a British Citizen, a British overseas territories citizen, a British National (Overseas), a British Overseas citizen, or a person who, under the British Nationality Act 1981, is a British subject or a British protected person within the meaning of that Act;

7B.

‘United Kingdom person’ means a United Kingdom national or a legal person, entity or body incorporated or constituted under the law of the United Kingdom or any part of the United Kingdom;]

8.

‘individual export authorisation’ shall mean an authorisation granted to one specific exporter for one end user or consignee in a third country and covering one or more dual-use items;

9.

[F13 ‘[F14 retained] general export authorisation’ shall mean an export authorisation for exports to certain countries of destination available to all exporters who respect its conditions and requirements for use as listed in Annexes IIa to IIf;]

10.

‘global export authorisation’ shall mean an authorisation granted to one specific exporter in respect of a type or category of dual-use item which may be valid for exports to one or more specified end users and/or in one or more specified third countries;

11.

‘national general export authorisation’ shall mean an export authorisation granted in accordance with Article 9(2) and defined by national legislation in conformity with Article 9 and Annex IIIc;

12.

F15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13.

F16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Art. 2(2) substituted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(a) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F2 Words in Art. 2(3) inserted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(b)(i) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in Art. 2(3)(i) substituted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(b)(ii)(aa) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F4 Words in Art. 2(3)(i) substituted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(b)(ii)(bb) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in Art. 2(3)(ii) substituted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(b)(iii) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F6 Words in Art. 2(3) substituted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(b)(iv) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F7 Word in Art. 2(4) substituted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(c)(i) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F8 Words in Art. 2(4) omitted (31.12.2020) by virtue of The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(c)(ii) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F9 Art. 2(6)-(6B) substituted for Art. 2(6) (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(d) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F10 Words in Art. 2(7) substituted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(e)(i) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F11 Words in Art. 2(7) substituted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(e)(ii) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F12 Art. 2(7A)(7B) inserted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(f) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F13 Substituted by Regulation (EU) No 1232/2011 of the European Parliament and of the Council of 16 November 2011 amending Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items.

F14 Word in Art. 2(9) substituted (31.12.2020) by The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(g) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F15 Art. 2(12) omitted (31.12.2020) by virtue of The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(h) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)

F16 Art. 2(13) omitted (31.12.2020) by virtue of The Trade etc. in Dual-Use Items and Firearms etc. (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/771), regs. 1, 3(3)(i) (with reg. 5) (as amended by S.I. 2020/1502, regs. 2(3), 10); 2020 c. 1, Sch. 5 para. 1(1)