2011 No. 1304
The Export Control (Syria and Miscellaneous Amendments) Order 2011
Made
Laid before Parliament
Coming into force
The Secretary of State is a Minister designated M1 for the purposes of section 2(2) of the European Communities Act 1972 M2 in relation to measures relating to the interruption or reduction, in part or completely, of economic relations with one or more countries which are not Member States.
This Order makes provision for a purpose mentioned in section 2(2) of that Act and it appears to the Secretary of State that it is expedient for references to Annex I to Council Regulation (EU) No 442/2011 M3 to be construed as references to that Annex as amended from time to time.
The Secretary of State, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972, by paragraph 1A of Schedule 2 to that Act M4 and by sections 1, 2, 3, 4, 5 and 7 of the Export Control Act 2002 M5, makes the following Order.
1972 c.68; section 2(2) was amended by section 27(1) of the Legislative and Regulatory Reform Act 2006 (c.51) and Part 1 of the Schedule to the European Union (Amendment) Act 2008 (c.7).
OJ No L 121, 10.5.2011, p1.
Paragraph 1A of Schedule 2 was inserted by section 28 of the Legislative and Regulatory Reform Act 2006 and amended by Part 1of the Schedule to the European Union (Amendment) Act 2008 (c.7).
Citation, Commencement and Interpretation1
1
This Order may be cited as the Export Control (Syria and Miscellaneous Amendments) Order 2011 and comes into force on 25th May 2011.
2
In this Order—
“the 1979 Act” means the Customs and Excise Management Act 1979 M6;
“the 2008 Order” means the Export Control Order 2008 M7;
“Annex I equipment” means equipment listed in Annex I to the Regulation;
“CML items” means goods or technology listed in the Common Military List of the European Union M8;
“EU authorisation” means an authorisation or an approval granted under either Article 2(3) or Article 3(2) of the Regulation;
“the Regulation” means Council Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria, and a reference to Annex I to that Regulation is to be construed as a reference to that Annex as amended from time to time.
3
An expression used both in this Order and in the Regulation has the meaning that it bears in the Regulation.
Offences supplementing the Regulation2
A person who contravenes any of the following provisions of the Regulation, except by exporting goods, commits an offence and may be arrested—
a
Article 2(1)(a) (prohibition on sale etc. of Annex I equipment to any person, entity or body in Syria or for use in Syria);
b
Article 3(1)(a) (prohibition on provision of technical assistance related to CML items to any person, entity or body in Syria or for use in Syria);
c
Article 3(1)(b) (prohibition on provision of technical assistance or brokering services related to Annex I equipment to any person, entity or body in Syria or for use in Syria);
d
Article 3(1)(c) (prohibition on provision of financing or financial assistance related to CML items or Annex I equipment to any person, entity or body in Syria or for use in Syria).
Offences related to EU authorisations3
1
A person commits an offence and may be arrested who, for the purpose of obtaining an EU authorisation—
a
makes any statement or furnishes any document or information which to that person's knowledge is false in a material particular; or
b
recklessly makes any statement or furnishes any document or information which is false in a material particular.
2
An EU authorisation granted in connection with the application for which the false statement was made or the false document or information furnished is void from the time it was granted.
3
A person who, having acted under the authority of an EU authorisation, fails to comply with a requirement or condition of the EU authorisation commits an offence and may be arrested, unless—
a
the EU authorisation was modified after the completion of the act authorised; and
b
the alleged failure to comply would not have been a failure had the EU authorisation not been so modified.
Circumvention of prohibitions4
1
A person commits an offence and may be arrested who participates, knowingly and intentionally, in activities the object or effect of which is—
a
to circumvent a prohibitions in Article 2(1)(a) of the Regulation, or
b
to enable or facilitate the contravention of such a prohibition.
2
A person commits an offence and may be arrested who participates, knowingly and intentionally, in activities the object or effect of which is—
a
to circumvent a prohibition in Article 3(1)(a) to (c) of the Regulation, or
b
to enable or facilitate the contravention of such a prohibition.
Overlap with the 2008 Order5
A person is not guilty of an offence under the 2008 Order who would, apart from this article, be guilty of—
a
an offence under this Order; and
b
a corresponding offence under the 2008 Order.
Penalties6
1
A person guilty of an offence under articles 2(a) or 4(1) of this Order is liable—
a
on summary conviction—
i
in England and Wales, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both;
ii
in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both.
b
on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine, or to both.
2
In relation to an offence committed after the commencement of section 154(1) of the Criminal Justice Act 2003 M9, for “six months” in paragraph (1)(a)(i) substitute “
twelve months
”
.
3
A person guilty of an offence under articles 2(b) to (d), 3 or 4(2) of this Order is liable—
a
on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum, or to both;
b
on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.
4
In the case of an offence committed under the 1979 Act in connection with the prohibition of exportation in Article 2(1)(a) of the Regulation, sections 68(3)(b) and 170(3)(b) M10 of the 1979 Act have the effect as if for the words “7 years” there were substituted the words “10 years”.
Application of the 1979 Act7
1
Where the Commissioners for Her Majesty's Revenue and Customs investigate or propose to investigate any matter with a view to determining—
a
whether there are grounds for believing that an offence under this Order has been committed; or
b
whether a person should be prosecuted for such an offence,
the matter shall be treated as an assigned matter.
2
Section 77A of the 1979 Act (provision as to information powers) M11 shall apply to a person concerned in an activity which, if not authorised by an EU authorisation, would contravene Articles F12 and 3 of the Regulation and accordingly references in section 77A of the 1979 Act to exportation shall be read as including any such activity.
3
Section 138 of the 1979 Act (provision as to arrest of persons) M12 shall apply to the arrest of a person for an offence under this Order as it applies to the arrest of a person for an offence under the customs and excise Acts.
4
Sections 145 M13, 146 M14, 146A M15, 147 M16, 148, 150 M17, 151 M18, 152 M19, 154 M20, and 155 M21 of the 1979 Act (proceedings for offences, mitigation of penalties, proof and other matters) apply in relation to offences and penalties under this Order as they apply in relation to offences and penalties under the customs and excise Acts.
5
“The customs and excise Acts” and “assigned matter” have the same meanings as in section 1 of the 1979 Act.
Amendments to the 2008 Order related to Syria arms embargo8
In Schedule 4 to the 2008 Order—
a
in Part 2, at the appropriate place insert “
Syria
”
;
b
in Part 4, omit “Syria”.
Amendment to the Export Control (Libya) Order 20119
Review10
1
Before the end of each review period, the Secretary of State must—
a
carry out a review of this Order,
b
set out the conclusions of the review in a report, and
c
publish the report.
2
In carrying out the review the Secretary of State must, so far as is reasonable, have regard to the rules on penalties applicable to infringements of the provisions of the Regulation and the measures taken to implement them in other member States.
3
The report must in particular—
a
set out the objectives intended to be achieved by the rules on penalties applicable to infringements of the provisions of the Regulation established by this Order and the measures taken to implement them,
b
assess the extent to which those objectives are achieved, and
c
assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.
4
“Review period” means—
a
the period of five years beginning with the day on which this Order comes into force, and
b
subject to paragraph (5), each successive period of five years.
5
If a report under this Order is published before the last day of the review period to which it relates, the following review period is to begin with the day on which that report is published.
S.I. 1994/757, to which there are amendments not relevant to this Order.