Export Control Practical Guidance James Robinson, Eversheds LLP Anders Lykke Pedersen, Eversheds Advokataktieselskab
Outline Overview of EU regime US and/or EU Sanctions Danish rules Common mistakes Top tips How we can help Questions
EU exports control overview Dual use goods and technology (civil and military purpose goods) Common EU rules (Regulation 428/2009) National additional legislation UN and national sanctions, part national part UN Military goods and technology Defence policy is a national concern (no EU authority) National rules Common EU policy (military list, licensing code)
Overview of EU system UN/EU/Member state sanctioned destination/individual? Are the goods specially designed or modified for military use? No Yes No Yes Make export subject to checking US rules Apply for licenses if appropriate Are the goods dual use within the meaning of EU Reg 428/2009? Goods subject to national export controls, licence required to all destinations Yes Do the goods require licence or other authorisation for export from EU? No Are there end-use concerns? WMD or MEND No Yes Yes No Make export subject to checking US rules Obtain a license from the competent authority and export subject to checking US rules Must resolve concerns or apply for licence even if goods not on control list Make export subject to checking US rules
Transfers within the EU No license required for transfer of majority of Annex I items between member states (unless intended end-use is for WMD) License required for most sensitive items in Annex IV License may be required: where end destination known to be outside EU (depending on which national regime) for intra-community transfers where WMD end-use outside EU
EU Brokering activities Negotiation or arrangement of transactions between two non-eu countries Licensable if broker aware or has been informed that Annex I item intended for WMD end-use
EU SANCTIONS Afghanistan Al Qaeda Belarus Bosnia And Herzegovina Burma China Democractic Republic Of Congo Cote D ivoire Croatia Egypt Eritrea Republic Of Guinea (Conakry) Haiti Iran Iraq Ivory Coast Democratic People s Republic Of Korea (North Korea) Lebanon Liberia Moldova Myanmar (Burma) North Korea Serbia And Montenegro Somalia South Sudan Sudan Syria Terrorist Groups (Foreign Terrorist Organisations) Tunisia USA (United States Of America) Yugoslavia (Serbia And Montenegro) Zimbabwe
Tower Pizza in Solvang, California, USA
The Danish authorities The Danish Enterprise and Construction Authority Dual use products The Ministry of Justice Arms control The Danish Foreign Ministry Sanctions
Criminal provisions (1) Dual-use The enabling act The Export Executive Order Fines or imprisonment up to 2 years Fines issued up to DKK 250,000 Arms control The fireams act Fines or imprisonment up to 2 years
Criminal provisions (2) Sanctions Section 110 c of the Danish Criminal Code Violation of UN sanctions: Fines or imprisonment up to 4 years Violation of EU sanctions: Fines or imprisonment up to 4 years
US vs EU regime YOU MUST CONSIDER US, EU AND NATIONAL AUTHORITY REGIMES!
Common mistakes & tips Assuming that US license means do not need to consider EU regime for warranties, for licences, for management Assuming that because exporting from Denmark/EU only need to consider Danish/EU regulations Dealing in deemed exports for US purposes and failing to obtain relevant licenses Sufficient due diligence?
Common mistakes & tips Do you sell ex works or sell for stock or backto-back? Using SAP systems without safeguards Early engagement with authorities particularly for end-user concerns Where the sanctions differ between countries Cuba, Iran etc. Warning concerning some avoidance systems in place in the market
Top Tips Be aware that controls change regularly check the European, national and US websites Use computer screening e.g. World-Check Never export if unsure whether licence needed Most things can be resolved with time, effort and consultation with authorities
Contact If at all unsure, seek legal advice: James Robinson: +44 7981 147968 jamesrobinson@eversheds.com Anders Lykke Pedersen: +45 33 75 05 87 anderslykkepedersen@eversheds.com
How we can help We can provide advice on: licences requirements; military as well as dual use items; sanctions (US, UN, EU and National); engaging with the authorities; compliance and training; litigation etc. Our experience: we provide advice across multiple jurisdictions to international businesses of all sizes and have pioneered this approach to partnering with large S&P100, Russell 600 and privately owned companies with international operations. Our global coverage: with 46 members of Eversheds International across Europe, the Middle East, Asia and Africa, and best friend firms across the world with whom we work on a regular basis, we can meet your needs wherever they may arise.
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