1.—(1) These Regulations may be cited as the Dual-Use Items (Export Control) Regulations 2000 and shall come into force on 28th September 2000.
(2) Subject to regulation 14, the Regulations specified in Schedule 1 are revoked.
2.—(1) In these Regulations:
“the 1994 Order" means the Export of Goods (Control) Order 1994 M1;
“the Commissioners" means the Commissioners of Customs and Excise;
“the Community General Export Authorisation" means the export authorisation constituted by Article 6(1) and Annex II;
“Community Licence" means an authorisation granted (whether before or after commencement of these Regulations) under the Regulation or Council Regulation (EC) No. 3381/94 of 19th December 1994 M2 by a competent authority for the export of dual-use items from the European Community;
“competent authority" means the Secretary of State or any authority empowered by another Member State to grant export authorisations for dual-use items under the Regulation;
“country" includes territory;
“export", unless the context otherwise requires, means export from the United Kingdom, including—
export to a destination within the customs territory of the European Community, and
the transmission of software or technology by fax, telephone or other electronic media (except that oral transmission of technology by telephone is included only where the technology is contained in a document the relevant part of which is read out over the telephone, or is described over the telephone in such a way as to achieve substantially the same result as if it had been so read);
and “exporter" and other cognate expressions shall be construed accordingly (except that where the export is to a destination outside the customs territory of the European Community, “exporter" has the same meaning as in the definition in Article 2(c), to the extent that that definition applies);
“import" and “export" in relation to a vessel, submersible vehicle or aircraft includes the taking into or out of the United Kingdom of the vessel, submersible vehicle or aircraft notwithstanding that the vessel, submersible vehicle or aircraft is conveying goods or passengers, and whether or not it is moving under its own power; and cognate expressions shall be construed accordingly;
“items" means both used and unused items;
“items in transit" means—
items which only pass through the territory of the Community within the meaning of Article 3(4), and
items being exported to another Member State which are not being transferred from the United Kingdom to that other Member State within the meaning of Article 21;
“normal commercial journey" means a journey providing transport services in the ordinary course of business;
“proper" has the same meaning as in the Customs and Excise Management Act 1979 M3;
“the Regulation" means Council Regulation (EC) No. 1334/2000 of 22nd June 2000 [F1as amended by the Council Regulations listed in Schedule 1A] setting up a Community regime for the control of exports of dual-use items and technology M4; and any reference to a numbered Article or Annex is to the article in, or Annex to, the Regulation so numbered;
“scheduled journey" means one of a series of journeys which are undertaken between the same two places and which together amount to a systematic service operated in such manner that its benefits are available to members of the public from time to time seeking to take advantage of it;
“surface effect vehicle" means any air cushion vehicle (whether side wall or skirted) and any vehicle using the wing-in-ground effect for positive lift;
“vessel" includes any ship, surface effect vehicle, vessel of small waterplane area or hydrofoil, and the hull or part of the hull of a vessel.
(2) Any reference in these Regulations to time after an event is a reference to a period of that length of time beginning on the day after that event.
(3) In these Regulations, except where the context otherwise requires, any reference to:
(a)a numbered regulation or Schedule is to the regulation in or Schedule to these Regulations which is so numbered;
(b)a numbered paragraph or sub-paragraph is to the paragraph or sub-paragraph which is so numbered in the regulation, Schedule or paragraph where the reference occurs.
(4) Except where these Regulations otherwise provide, expressions used in the Regulation which are also used in these Regulations have the same meaning in these Regulations as they have in the Regulation.
Textual Amendments
F1Words in reg. 2(1) substituted (5.2.2002) by The Dual-Use Items (Export Control) (Amendment) Regulations 2002 (S.I. 2002/50), regs. 1(1), 2
Marginal Citations
M1S.I. 1994/1191 as amended by S.I. 1994/1632 and 2711, 1996/2663, 1997/323, 1008, 2464 and 2758 1999/63, 335, 1777, 2610 and 3411, 2000/109 and 1239.
M2O.J. No. L367, 31.12.94, p. 1.
M4O.J. No. L159, 30.6.00, p. 1.
3.—(1) The Secretary of State may grant licences and Community Licences.
(2) Any licence or Community Licence granted by the Secretary of State in pursuance of these Regulations or having effect as if so granted may be:
(a)either general or individual;
(b)limited so as to expire on a specified date unless renewed;
(c)subject to or without conditions, and any such condition may require or prohibit any act before or after the export of items under that licence or Community Licence;
(d)varied or revoked by the Secretary of State.
4.—(1) Subject to Article 6(1), a Community Licence is the authorisation required by:
(a)Article 3(1) for the export from the European Community of any item listed in Annex I; and
(b)paragraphs 1, 2 and 3 of Article 4 for the export from the European Community, in the circumstances respectively described in those paragraphs, of dual-use items not listed in Annex I.
(2) A licence granted by the Secretary of State is the authorisation required by Article 21(1) for the export to another Member State of items listed in Annex IV.
(3) Subject to the provisions of these Regulations:
(a)no person shall export any items specified in Schedule 2 contrary to a prohibition set out in that Schedule;
(b)no person shall make to any destination any export consisting of the transmission by fax, telephone or other electronic media of dual-use items in the form of software or technology which are items in transit and which—
(i)that person (or, if that person is not within the United Kingdom, any agent of that person within the United Kingdom concerned in the export or intended export) has been informed by a competent authority 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, or
(ii)that person is aware are intended, in their entirety or in part, for any of the uses referred to in sub-paragraph (i), or
(iii)that person has grounds for suspecting are or may be intended, in their entirety or in part, for any of the uses referred to in sub-paragraph (i), unless that person has made all reasonable enquiries as to their proposed use and is satisfied that they will not be so used;
(c)no person shall export to any destination not in a Member State any dual-use items which that person has grounds for suspecting are or may be intended, in their entirety or in part, for any of the uses referred to in sub-paragraph (b)(i), unless that person has made all reasonable enquiries as to their proposed use and is satisfied that they will not be so used; and
(d)no person shall export to a destination in a Member State—
(i)any items listed in Annex I but not in Annex IV,
(ii)any items specified in Schedule 2, or
(iii)any dual-use items not listed in Annex I and not specified in Schedule 2 but for the export of which from the European Community an authorisation is required in accordance with Article 4(1), (2) or (3) or under Article 4(4),
if that person knows at the time of export that the final destination of those items is outside the European Community and no processing or working is to be performed on those items in any Member State to which they are to be exported.
(4) Subject to the provisions of these Regulations, paragraph (3) does not prohibit the export of any items in relation to which a licence in writing has been granted by the Secretary of State, provided that all conditions attaching to the licence are complied with.
(5) No person shall make any export consisting of the transmission by fax, telephone or other electronic media of dual-use items in the form of software or technology—
(a)to any destination not in a Member State, if the export is contrary to the restriction imposed by Article 3(1);
(b)to any destination in a Member State, if the export is contrary to the restriction imposed by Article 21(1).
(6) Subject to the provisions of these Regulations:
(a)paragraph (5)(a) does not prohibit the export of any items under the authority of the Community General Export Authorisation, or in relation to which a licence in writing has been granted by the Secretary of State or a Community Licence has been granted by any competent authority, provided that all conditions applying to that Authorisation or attaching to the licence or Community Licence are complied with; and
(b)paragraph (5)(b) does not prohibit the export of any items in relation to which a licence in writing has been granted by the Secretary of State provided that all conditions attaching to the licence are complied with.
5.—(1) Nothing in these Regulations prohibits the export of:
(a)any aircraft on a scheduled journey;
(b)any aircraft the immediately preceding import of which was on a scheduled journey and which is intended for further scheduled journeys;
(c)any vessel which is departing temporarily from the United Kingdom on trials;
(d)any vessel proceeding on a normal commercial journey.
(2) Paragraphs (a) and (d) of Regulation 4(3) do not apply in respect of items in transit.
6.—(1) Any dual-use items not listed in Annex I, in relation to which a Community Licence has not been granted and which are brought to any place in the United Kingdom for the purpose of being exported to a destination outside the European Community, not being items which only pass through the territory of the Community within the meaning of Article 3(4), may be detained by the proper officer of Customs and Excise as if they were liable to forfeiture if and so long as that officer has reason to believe that a competent authority (after, if necessary, having had the impending export brought to its attention) might inform the exporter as provided in Article 4(1), (2) or (3).
(2) Where—
(a)a Community Licence has been granted by a competent authority in another Member State for the export of any items to any destination outside the European Community,
(b)the export of any items is authorised by the Community General Export Authorisation, or
(c)items, of which the exporter (within the meaning of the Regulation) is established in a Member State other than the United Kingdom but not in the United Kingdom, are or have been detained under paragraph (1),
the Secretary of State may give notice to the proper officer of Customs and Excise that he considers that export of the items would be contrary to the essential foreign policy or security interests, or to the fulfilment of the international obligations or commitments, of the United Kingdom; and in such a case the export is prohibited notwithstanding, in a case within sub-paragraph (a) the grant of the Community Licence, or in a case within sub-paragraph (b) the Community General Export Authorisation.
(3) In the case of an export which includes the transmission of software or technology by fax, telephone or other electronic media, the Secretary of State shall send a copy of any notice given under paragraph (2) to the exporter (or, if the exporter is not within the United Kingdom, any agent of the exporter within the United Kingdom concerned in the export or intended export) at the address stated in the particulars given under regulation 9(1) or (2), or if no such particulars have been given:
(a)if the exporter or agent is a body corporate, at the address of its registered or principal office in the United Kingdom; or
(b)in any other case, at the usual or last known address in the United Kingdom of the exporter or agent (whether of the exporter’s or agent’s residence or a place where the exporter or agent carries on business).
(4) Any items listed in Annex I in relation to which a Community Licence has been granted which are brought to any place in the United Kingdom for the purpose of being exported to a destination outside the European Community may be detained by the proper officer of Customs and Excise for a period of ten working days as if they were liable to forfeiture where that officer or the Secretary of State has grounds for suspicion that:
(a)relevant information was not taken into account when the Community Licence was granted; or
(b)circumstances have materially changed since the issue of the Community Licence,
provided that the period shall be extended to 30 working days where the Secretary of State certifies that a request for such an extension in accordance with Article 12.4 has been received from the Member State which granted the Licence.
(5) Any exporter shall, if so required by the Commissioners, furnish within such time as they may allow proof to their satisfaction that the items exported have reached either—
(a)a destination to which they were authorised to be exported by the Community General Export Authorisation or by a Community Licence or by a licence granted for the purposes of these Regulations, or
(b)a destination to which their export was not prohibited by these Regulations,
and an exporter who fails to do so shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale unless he proves that he did not consent to or connive at the items reaching any destination other than such a destination.
7. For the purposes of obtaining any licence from the Secretary of State or any Community Licence from any competent authority no person shall—
(a)make any statement or furnish any document or information which to that person’s knowledge is false in a material particular, or
(b)recklessly make any statement or furnish any document or information which is false in a material particular;
and any licence or Community Licence which may have been granted by the Secretary of State in connection with an application for which a false statement was made or a false document or information was furnished shall be void as from the time it was granted.
8.—(1) This paragraph applies to any person who:
(a)has exported items from—
(i)the United Kingdom under the authority of a licence granted by the Secretary of State or of the Community General Export Authorisation,
(ii)the European Community under the authority of a Community Licence granted by the Secretary of State, or
(iii)the European Community under the authority of a Community Licence sought by or on behalf of a person in, or established in, the United Kingdom; and
(b)fails to comply with any condition attaching to that licence or Community Licence or applying on use of the Community General Export Authorisation, as the case may be.
(2) Subject to paragraph (3), a person to whom paragraph (1) applies is guilty of an offence and liable:
(a)on summary conviction to a fine not exceeding the statutory maximum, and
(b)on conviction on indictment to a fine or imprisonment for a term not exceeding 2 years, or to both.
(3) No person is guilty of an offence under paragraph (2) where:
(a)as the case may be—
(i)in the case of a licence the condition in question had been previously modified without that person’s consent by the Secretary of State,
(ii)in the case of a Community Licence the condition in question had been previously modified without that person’s consent by the Secretary of State or other competent authority which granted that Community Licence, or
(iii)in the case of the Community General Export Authorisation the condition in question had been previously modified;
(b)the alleged failure to comply would not have been a failure had the licence, Community Licence or Community General Export Authorisation not been so modified; and
(c)that person proves that the items in relation to which he has failed to comply with the condition had, at the time the condition was modified, been exported from the United Kingdom in the case of a licence or from the European Community in the case of a Community Licence or the Community General Export Authorisation.
9.—(1) Not later than 30 days after—
(a)any person first makes an export from the United Kingdom or from the European Community under the authority of any licence or Community Licence, as the case may be, granted by the Secretary of State that does not provide otherwise, or
(b)any person established in the United Kingdom first makes an export from the United Kingdom under the authority of the Community General Export Authorisation,
that person shall give to the Secretary of State written notice of the following particulars:
(i)the name of the person; and
(ii)the address at which copies of the records referred to in regulation 10 may be inspected by any person authorised by the Secretary of State or the Commissioners under regulation 10.
(2) A person who has given to the Secretary of State written notice of particulars under paragraph (1) shall, not later than 30 days after any change in those particulars, give to the Secretary of State written notice of the changed particulars.
(3) Not later than 30 days after the first export of any item listed in Part 2 of category 5 in Annex I but not specified in Part I of Schedule 3 from the United Kingdom under the authority of the Community General Export Authorisation by any person, that person shall (in addition to any notice given under paragraph (1)), give to the Secretary of State in relation to that item written notice of such of the information specified in Part II of Schedule 3 as is in that person’s possession and such other of that information as that person can reasonably be expected to obtain within that time.
(4) A person who has given to the Secretary of State written notice of information under paragraph (3) shall, not later than 30 days after any change in that information, give to the Secretary of State written notice of the changed information.
(5) Any notice to be given by a person under this regulation may be given by the agent of that person; and shall be sent by post or delivered to the Secretary of State at the Applicant Services and Compliance Unit, Department of Trade and Industry, 4 Abbey Orchard Street, London SW1P 2HT.
10.—(1) Any person established in the United Kingdom who exports any items from the European Community under the authority of a Community Licence, and any such person who exports any items from the United Kingdom under the authority of the Community General Export Authorisation, shall maintain records in relation to each such export that contain the following information:
(a)a description of the items;
(b)the quantity of the items;
(c)the person’s name and address;
(d)the name and address of any consignee of the items;
(e)in so far as it is known to that person, the end-use of the items and the name and address of the end-user; and
(f)in the case of an export under the authority of a Community Licence, any further information required by the Community Licence to be kept.
(2) The records referred to in paragraph (1) shall be kept for at least 3 years from the end of the calendar year in which the export took place, and the person concerned shall permit any such records to be inspected and copied by any person authorised by the Secretary of State or the Commissioners.
(3) Any person who has been granted a Community Licence under these Regulations in relation to the export from the European Community of any items shall, upon request in writing by the Secretary of State or the Commissioners, produce any documents or other records he may hold that relate to the application for that Community Licence; and any such documents or records shall be kept for at least 3 years from the end of the calendar year in which such application was made, and that person shall permit any such documents or records to be inspected and copied by any person authorised by the Secretary of State or the Commissioners.
(4) Any person authorised by the Secretary of State or the Commissioners may, on producing if required to do so a duly authenticated document showing his authority, at any reasonable hour enter:
(a)for the purpose of paragraph (2), the premises of which the address has most recently been notified to the Secretary of State under regulation 9; or
(b)for the purpose of paragraph (3), any premises of which the address has been notified for this purpose by the exporter to a competent authority when applying for a licence.
(5) Where any documents or records referred to in paragraph (2) or (3) are kept in a form which is not legible the exporter shall at the request of the person authorised by the Secretary of State or the Commissioners, as the case may be, reproduce such documents or records in a legible form.
(6) The documents and records to be kept in accordance with Article 21(5) shall be the records referred to in paragraph (1)(a) to (e). Paragraphs (4) and (5) and the provision in paragraph (2) relating to inspection and copying shall apply for the production of such documents and records to the competent authorities in accordance with Article 21(5) as they apply in respect of the records referred to in paragraph (2) or (as the case may be) in respect of entry into premises for the purpose of paragraph (2).
(7) Any person who exports to another Member State any item listed in Part 2 of category 5 in Annex I but not listed in Annex IV shall maintain records in relation to each such export that contain such of the information specified in Part II of Schedule 3 as that person can reasonably be expected to obtain and such other of that information as comes into that person’s possession. These records shall be kept for at least 3 years from the end of the calendar year in which the export took place, and that person shall permit any such records to be inspected and copied by any person authorised by the Secretary of State or the Commissioners. Paragraphs (4) and (5) and the provision in paragraph (2) relating to inspection and copying shall apply for the production of such documents and records as they apply in respect of the records referred to in paragraph (2) or (as the case may be) in respect of entry into premises for the purpose of paragraph (2).
11.—(1) Any person who contravenes:
(a)regulation 4 (3),
(b)regulation 4 (5)(a) with intent to evade the restriction imposed by Article 3(1),
(c)regulation 4 (5)(b) with intent to evade the restriction imposed by Article 21(1), or
(d)a prohibition in regulation 6 (2)
is guilty of an offence and may be arrested, and for these purposes section 68(2) of the Customs and Excise Management Act 1979 shall not apply.
(2) A person guilty of an offence under paragraph (1) is liable:
(a)on conviction on indictment to a fine or imprisonment for a term not exceeding 2 years, or to both; or
(b)on summary conviction to a fine not exceeding the statutory maximum.
(3) Any person who fails to comply with regulation 7, 9 or 10, or Article 4(4), 9(1) or 21(5) or (7), is guilty of an offence and is liable:
(a)on conviction on indictment to a fine or imprisonment for a term not exceeding 2 years, or to both; or
(b)on summary conviction to a fine not exceeding the statutory maximum.
(4) Any person who contravenes regulation 4 (5) is guilty of an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(5) In England and Wales, subsection (2) of section 24 of the Police and Criminal Evidence Act 1984 M5 applies to the offence in paragraph (1) (which is not an arrestable offence by virtue of the term of imprisonment for which a person may be sentenced in respect of it) as if it were mentioned in that subsection; and accordingly that offence is an arrestable offence within the meaning of that Act.
(6) In Northern Ireland, paragraph (2) of Article 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989 M6 applies to the offence in paragraph (1) (which is not an arrestable offence by virtue of the term of imprisonment for which a person may be sentenced in respect of it) as if it were mentioned in that paragraph; and accordingly that offence is an arrestable offence within the meaning of that Order.
12.—(1) Section 138 of the Customs and Excise Management Act 1979 M7 (provision as to arrest of persons) applies to the arrest of any person for any offence under regulation 11(1) as it applies to the arrest of any person for any offence under the customs and excise Acts.
(2) Sections 145 to 148 and 150 to 155 of that Act M8 (proceedings for offences, mitigation of penalties, proof and other matters) apply in relation to offences and penalties under these Regulations and proceedings for such offences as they apply in relation to offences and penalties and proceedings for offences under the customs and excise Acts.
(3) Nothing in subsections (1) to (4) of section 145 of that Act (institution of proceedings for offences under the customs and excise Acts to be by order of the Commissioners) prevents the institution of proceedings by the Secretary of State for an offence of failing to comply with regulation 7, 8, 9 or 10.
(4) Where the Commissioners investigate, or propose to investigate, any matter with a view to determining—
(a)whether there are grounds for believing that an offence under regulation 11(1)(a) for contravention of regulation 4(3)(b), 11(1)(b) or (c) or 11(4) has been committed; or
(b)whether a person should be prosecuted for that offence,
the matter shall be treated as an assigned matter within the meaning of that Act.
(5) In this regulation, “customs and excise Acts" has the same meaning as in section 1 of that Act.
Marginal Citations
M7Section 138 was amended by the Police and Criminal Evidence Act 1984 (c. 60), sections 114(1) and 119, Schedule 6 paragraph 37 and Schedule 7 Part I, by the Finance Act 1988 (c. 39), section 11, and by S.I. 1989/1341.
M8Section 145(6) was amended by the Police and Criminal Evidence Act 1984 (c. 60), section 114(1); section 146(1) was modified by S.I. 1990/2167; section 146A was inserted by the Finance Act 1989 (c. 26), section 16(1) and (4); section 147(1) was repealed by the Finance Act 1989 (c. 26), section 16(2) and (4), section 187(1) and Schedule 17, Part I; section 147(2) was amended by the Magistrates' Courts Act 1980 (c. 43), section 154 and Schedule 7, paragraph 176; section 147(5) was repealed by the Criminal Justice Act 1982 (c. 48), section 77 and Schedule 14, paragraph 42 and section 78 and Schedule 16; section 148 was extended by S.I. 1993/1813; section 151 was amended by the Magistrates' Courts Act 1980 (c. 43), section 154 and Schedule 7, paragraph 177; section 153(4) was inserted by the Finance Act 1981 (c. 35), section 11(1) and Schedule 8, Part I, paragraph 9; section 154(2) was modified by S.I. 1990/2167.
13. The 1994 Order does not apply in respect of the export of dual-use items or items specified in Schedule 2, other than the export of goods which are items in transit; and in respect of goods which are items in transit has effect as if Part III of Schedule 1 to that Order included Annex I and Schedule 2.
14.—(1) Notwithstanding the revocation by regulation 1 (2) of the Regulations specified in Schedule 1:
(a)those Regulations shall continue to apply in relation to any export which has occured before 28th September 2000; and
(b)subject to paragraph (2), any licence or Community Licence issued by the Secretary of State under those Regulations which has not ceased to have effect before 28th September 2000 shall continue to have effect until the same date as it would have had effect if those Regulations had not been revoked, but shall be deemed on and after 28th September 2000 to have been issued under these Regulations.
(2) Any licence or Community Licence issued by the Secretary of State under the Regulations specified in Schedule 1 shall cease to have effect at the end of 27th September 2000 so far as, but for this paragraph, it would relate to an export for which an authorisation is not required by the Regulation and which:
(a)occurs after that date; and
(b)is not prohibited (other than under the authority of a licence or Community Licence or of the Community General Export Authorisation) by these Regulations.
(3) Any licence or Community Licence which continues to have effect under paragraph (1)(b) and which authorises the export of goods comprising or including software or technology shall be deemed on and after 28th September 2000 to authorise, to the same extent, the transmission of that software or technology by fax, telephone or other electronic media.
Stephen Byers
Secretary of State for Trade and Industry