F1PART 6AProvisions relating to the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement

Interpretation42A.

In this Part,—

“certificate” means a certificate granted by the Secretary of State in accordance with article 42D;

“the EU customs Regulation” means Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code as it has effect in EU law;

“the EU customs territory” means the customs territory described in Article 4 of the EU customs Regulation;

“the EU defence-related products Directive” means Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community as it has effect by virtue of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement;

“the EU dual-use Regulation” means Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items as it has effect by virtue of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement;

“EU-listed military item” means an item listed in the Annex to the EU defence-related products Directive;

“the EU torture Regulation” means Regulation (EU) 2019/125 of the European Parliament and of the Council of 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment as it has effect by virtue of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement;

“Northern Ireland recipient” means a person in Northern Ireland who is responsible for the receipt of an EU-listed military item.

Provisions relating to the EU defence-related products Directive

Record-keeping requirement: EU-listed military item supplier42B.

(1)

Article 29 (requirement to keep detailed registers or records) applies in relation to a person who acts under the authority of an individual licence to export or transfer from Northern Ireland to the EU customs territory an EU-listed military item as it applies in relation to a person who acts under the authority of a general licence granted by the Secretary of State but as if,—

(a)

in paragraph (2),—

(i)

in the words before subparagraph (a), the reference to each act carried out under the authority referred to in paragraph (1) were a reference to the export or transfer carried out under the authority of the individual licence;

(ii)

in subparagraphs (a) to (d) and (f) to (h), the reference to the act were a reference to the export or transfer;

(iii)

in subparagraphs (e), (g), and (h), the reference to the person referred to in paragraph (1) were a reference to the person who acts under the authority of the individual licence; and

(iv)

in subparagraph (i), the reference to the licence or authorisation referred to in paragraph (1) were a reference to the individual licence; and

(b)

in paragraph (3), the reference to the licence or authorisation referred to in paragraph (1) were a reference to the individual licence.

(2)

Article 31 (inspection of records) applies in relation to a person who is required by virtue of paragraph (1) to keep registers or records as it applies in relation to a person who is required under article 29 to keep registers or records.

Offence to contravene article 42B42C.

(1)

Article 38 (failure to comply with licence conditions) applies in relation to a person who, having acted under the authority of an individual licence, fails to comply with any obligation by virtue of article 42B as it applies to a person who, having acted under the authority of a licence or the general export authorisation, fails to comply with any obligation under article 29.

(2)

Article 41 (application of CEMA in respect of offences) applies in relation to paragraph (1) as it applies in relation to article 38.

Secretary of State may certify Northern Ireland recipient undertaking42D.

The Secretary of State may certify an undertaking of a Northern Ireland recipient for the purposes of Article 9(1) of the EU defence-related products Directive by granting a certificate in relation to the recipient.

Applying for certificate42E.

(1)

A person may apply to the Secretary of State for a certificate .

(2)

The applicant must provide the Secretary of State with the information necessary for the Secretary of State to assess the criteria set out in article 42G.

Secretary of State may grant certificate42F.

(1)

The Secretary of State may grant a certificate only if the Secretary of State, in accordance with article 42G, establishes the reliability of the Northern Ireland recipient undertaking.

(2)

A certificate must contain the following—

(a)

the name of the Secretary of State;

(b)

the name and address of the recipient;

(c)

a statement that the recipient conforms with the criteria set out in article 42G; and

(d)

the date of issue and the period of validity of the certificate.

(3)

The period of validity of a certificate must not exceed five years.

(4)

A certificate may be subject to conditions relating to—

(a)

the provision of information necessary to verify compliance by the recipient with the criteria set out in article 42G;

(b)

the suspension or revocation of the certificate.

(5)

If the Secretary of State decides not to grant a certificate, the Secretary of State must provide the applicant with written notification setting out the reason for the decision.

Establishing reliability of Northern Ireland recipient undertaking42G.

(1)

The Secretary of State, to establish the reliability of a Northern Ireland recipient undertaking, must assess the following criteria in relation to the recipient—

(a)

its capacity to observe limitations on the export of an EU-listed military item received under authorisation granted by a competent authority;

(b)

its proven experience in defence activities, in particular,—

(i)

the record of compliance by the undertaking with export restrictions, including any relevant court decisions;

(ii)

any authorisation held by the undertaking to produce or market an EU-listed military item;

(iii)

the employment of experienced management staff by the recipient;

(c)

its relevant industrial activity in Northern Ireland or the EU customs territory relating to an EU-listed military item, with, in particular, capacity for system or sub-system integration;

(d)

the appointment of a senior executive as the dedicated officer personally responsible for exports and transfers;

(e)

the provision of a written commitment, signed by the senior executive referred to in subparagraph (d), that—

(i)

the undertaking will take all necessary steps to observe and enforce any specific condition of an authorisation granted by a competent authority relating to end-use and re-export of any specific component or product received;

(ii)

the undertaking will provide to the Secretary of State, on request, detailed information concerning the end-user or end-use of the EU-listed military item exported, transferred, or received under an authorisation granted by a competent authority; and

(f)

the provision of a written description, signed by the senior executive referred to in subparagraph (d), of the internal compliance programme or export and transfer management system of the undertaking, including details of—

(i)

the organisational, human, and technical resources allocated to the management of exports and transfers;

(ii)

the chain of responsibility within the undertaking;

(iii)

internal audit procedures;

(iv)

awareness-raising

(v)

staff-training;

(vi)

physical and technical security arrangements;

(vii)

record-keeping; and

(viii)

traceability of exports and transfers.

(2)

In this article, “competent authority” means an authority in a member State responsible for carrying out the obligations of that member State under the EU defence-related products Directive.

Secretary of State may amend, suspend, and revoke certificate42H.

(1)

Article 32 (amendment, suspension, and revocation of licences) applies in relation to a certificate as it applies in relation to a licence.

(2)

The notification requirements under article 33(2) to (4) (licence refusals) apply in relation to a decision by the Secretary of State to amend, suspend, or revoke a certificate as they apply in relation to a decision by the Secretary of State to amend, suspend, or revoke a licence.

Appeal of Secretary of State decision42I.

Article 33(5) to (7) (licence appeals) applies in relation to a person who has a right under article 42F(5) or by virtue of article 42H(2) to a written notification in respect of a decision made by the Secretary of State as it applies in relation to a person who has a right under paragraphs (1) to (4) to a written notification in respect of a decision made by the Secretary of State.

Offence relating to misleading application for certificate42J.

(1)

Article 37 (misleading applications for licences) applies in relation to a misleading application for a certificate as it applies in relation to a misleading application for a licence.

(2)

Article 41 (application of CEMA in respect of offences) applies in relation to paragraph (1) as it applies in relation to article 37.

Provisions relating to the EU firearms Directive

Exception in relation to Northern Ireland: European firearms pass holders42K.

(1)

Articles 3 (military goods, etc.) and 4 (movement of UK controlled dual-use goods, etc. to certain destinations) do not apply in relation to a person who exports a firearm from Northern Ireland to a member State if—

(a)

the firearm is a part of the personal effects of the person;

(b)

the person is in possession of—

(i)

a European firearms pass issued to the person under section 32A of the Firearms Act 1968; or

(ii)

a document that has been issued to the person under the provisions of the law of a member State corresponding to the provisions of that section; and

(c)

paragraph (2) or (3) applies.

(2)

This paragraph applies if the person, on request, satisfies the appropriate officer of Revenue and Customs at the place of export that—

(a)

the exportation of the firearm is necessary to enable the person to participate in one of the activities specified in Article 12(2) of the EU firearms Directive (hunting, target shooting, and re-enactment activities);

(b)

the firearm is within the category of firearms appropriate to that activity in accordance with that Article; and

(c)

the export or passage of the firearm is not to or through a member State that prohibits or requires an authorisation for the acquisition or possession of the firearm.

(3)

This paragraph applies if the document referred to in paragraph (1)(b)(ii) contains authorisation for the possession of the firearm issued by—

(i)

the destination member State; and

(ii)

any other member State through which the person who possesses the firearm intends to pass through on the way to that destination member State.

(4)

In this article, “the EU firearms Directive” means Council Directive of 18 June 1991 on control of the acquisition and possession of weapons (91/477/EEC) as it has effect by virtue of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement.

Provisions relating to the EU dual-use Regulation

Export and transfer control in relation to Northern Ireland: dual-use goods, software, and technology42L.

(1)

A person must not, unless the person has a UK licence authorising the act, export or transfer dual-use goods, software, or technology from Northern Ireland to the EU customs territory if the person knows—

(a)

the final destination of the dual-use goods, software, or technology is a country or territory other than the EU customs territory; and

(b)

no processing or working is to be performed on the dual-use goods, software, or technology in the EU customs territory.

(2)

Article 17 (transit or transhipment exception) applies in relation to paragraph (1) as it applies in relation to article 8(1) (transit control supplementing the dual-use Regulation).

(3)

Subject to paragraph (4), the export or transfer of dual-use goods, software, or technology in contravention of this article is prohibited.

(4)

This article does not prohibit the transfer of software or technology by non-electronic means .

(5)

In this article, “dual-use goods, software, or technology” means goods, software, or technology—

(a)

not specified in Annex IV to the EU dual-use Regulation; and

(b)

that, if the export or transfer were from Northern Ireland to a country or territory other than the EU customs territory, would require an authorisation granted by the Secretary of State under—

(i)

Article 3 of the EU dual-use Regulation (export control on specified dual-use items); or

(ii)

Article 4 of the EU dual-use Regulation (export control on unspecified dual-use items).

Offence to contravene article 42L42M.

(1)

Article 34 (offences relating to prohibition in Parts 2, 3, and 4) applies in relation to—

(a)

a person who contravenes the prohibition in article 42L as it applies in relation to a person who contravenes a prohibition in Part 2 (export and transfer controls);

(b)

a person knowingly concerned in activity prohibited by article 42L as it applies in relation to a person knowingly concerned in activity prohibited by Part 2.

(2)

Article 41 (application of CEMA in respect of offences) applies in relation to article 42L as it applies in relation to article 8;

(3)

Article 42 (increase of maximum penalty for prohibited exportation provided for in CEMA) applies in the case of an offence committed in connection with a prohibition or restriction on exportation in article 42L as it applies in the case of an offence committed in connection with a prohibition or restriction on exportation in Part 2.

Exceptions in relation to Northern Ireland: dual-use goods, software, and technology42N.

(1)

F2Articles 6 (WMD purposes end-use control supplementing the dual-use Regulation) and 12A (military end-use control supplementing the dual-use Regulation) do not apply in relation to the export or transfer from Northern Ireland to the EU customs territory of dual-use goods, software, or technology not specified in Annex I to the EU dual-use Regulation.

(2)

Article 12 (transfer by non-electronic means for WMD purposes) does not apply in relation to a person who transfers from Northern Ireland to the EU customs territory by non-electronic means any software or technology to which that article applies if the person knows—

(a)

the final destination of the software or technology is the EU customs territory; or

(b)

processing or working is to be performed on the software or technology in the EU customs territory.

(3)

Article 19(1) (end-use control on providing technical assistance from the United Kingdom) does not apply in relation to a person in Northern Ireland who directly or indirectly provides to a person or place in the EU customs territory any technical assistance to which that article applies.

Exception in relation to Northern Ireland: EU goods in transit42O.

(1)

Article 8 (transit controls supplementing the dual-use Regulation) does not apply in relation to EU goods that are entering Northern Ireland from the EU customs territory and passing through Northern Ireland to a country or territory other than the United Kingdom.

(2)

In this article, “EU goods” has the same meaning as “Union goods” in Article 5(23) of the EU customs Regulation.

Authorisation requirement: Article 22(1) of the EU dual-use Regulation42P.

(1)

The authorisation required by Article 22(1) of the EU dual-use Regulation is a licence granted by the Secretary of State.

(2)

A person may apply to the Secretary of State for a licence.

(3)

Article 26(6) (conditions of licence) applies in relation to a licence granted in accordance with paragraph (1).

Record-keeping requirement: Article 22(8) of the EU dual-use Regulation42Q.

(1)

The documents and records to be kept in accordance with Article 22(8) of the EU dual-use Regulation are the registers or records referred to in article 29(2)(a) to (i).

(2)

Article 31 (inspection of records) applies in relation to a person who is required under Article 22(8) of the EU dual-use Regulation to keep documents and records as it applies in relation to a person who is required under Article 20 of the dual-use Regulation to keep registers or records.

Offences in relation to Article 22 of the EU dual-use Regulation42R.

Article 35 (offences relating to prohibitions and restrictions in the dual-use Regulation) applies in relation to—

(a)

a person who contravenes a prohibition or restriction in Article 22(1) of the EU dual-use Regulation (control on export or transfer of certain dual-use items from Northern Ireland to the EU customs territory) as it applies in relation to a person who contravenes a prohibition or restriction in Article 3(1) of the dual-use Regulation (export control on specified dual-use items);

(b)

a person knowingly concerned in an activity prohibited or restricted by Article 22(1) of the EU dual-use Regulation as it applies in relation to a person knowingly concerned in an activity prohibited or restricted by Article 3(1) of the dual-use Regulation;

(c)

a person who fails to comply with Article 22(8) or (10) of the EU dual-use Regulation (specific record-keeping requirements) as it applies in relation to a person who fails to comply with Article 20 of the dual-use Regulation (general record-keeping requirement).

Provisions relating to the EU torture Regulation

Export control in relation to Northern Ireland: leg irons, gang chains, and portable electric shock devices42S.

(1)

A person must not, unless the person has a UK licence authorising the act, export from Northern Ireland to the EU customs territory any goods described in—

(a)

item 2.1 in Annex II to the EU torture Regulation (electric shock devices worn on the body);

(b)

item 2.3 in Annex II to the EU torture Regulation (bar fetters, weighted leg restraints, and gang chains);

(c)

item 2.1 in Annex III to the EU torture Regulation (portable electric discharge weapons).

(2)

The export of leg irons, gang chains, or portable electric shock devices in contravention of this article is prohibited.

Offence to contravene article 42S42T.

(1)

Article 34 (offences relating to prohibition in Parts 2, 3, and 4) applies in relation to—

(a)

a person who contravenes a prohibition in article 42S as it applies in relation to a person who contravenes a prohibition in Part 2;

(b)

a person knowingly concerned in activity prohibited by article 42S as it applies in relation to a person knowingly concerned in activity prohibited by Part 2.

(2)

Article 41 (application of CEMA in respect of offences) applies in relation to article 42S as it applies in relation to article 8.

(3)

Article 42 (increase of maximum penalty for prohibited exportation provided for in CEMA) applies in the case of an offence committed in connection with a prohibition or restriction on exportation in article 42S as it applies in the case of an offence committed in connection with a prohibition or restriction on exportation in Part 2.

Exception in relation to Northern Ireland: category A and C goods42U.

Articles 21 (supplying or delivering category A goods) and 23 (supplying or delivering category C goods) do not apply in relation to a person in Northern Ireland carrying out activities prohibited or restricted by those articles if the goods to which those activities relate are—

(a)

Category A goods specified in Annex II to the EU torture Regulation; or

(b)

Category C goods specified in Annex III to the EU torture Regulation.