EU consultation on guidance on exports of cyber-surveillance items
The EU Dual Use Regulation (EU) 2021/821 strengthens export controls on cyber-surveillance items not listed in its Annex I and that may be intended, in their entirety or in part, for use in connection with internal repression and/or the commission of serious violations of human rights and international humanitarian law.
The regulation mandates the EU Commission to make available guidelines for exporters in relation to Article 5 and in that regard, the EU has launched a consultation directed at all stakeholders with an interest in export of dual-use items and technologies (for example, exporters, industry associations, government authorities, academia, research institutions and non-governmental organisations) and is seeking views on draft guidelines regarding the export of cyber-surveillance items.
Guidelines on the export of cyber-surveillance items under Article 5 of Regulation (EU) No. 2021/821 (europa.eu)
The consultation will remain open until 9 June 2023 and traders are invited to contribute views.
EU sanctions in response to situation in Ukraine
EU sanctions in response to situation in Ukraine
Report under the Control of Exports Act 2008 covering the period 1 January - 31 December 2020
The Report under the Control of Exports Act 2008 covering the period 1 January - 31 December 2020 focuses on export licensing activity during 2020. It provides data on export licence applications and the value and destination of licensed goods.
New EU dual-use Regulation and Ireland
The Department of Enterprise, Trade and Employment will host an online event for business and industry representatives on 14 September 2021 to mark the commencement of the recast of the EU Dual-use Regulation ((EU) 2021/821).
The recast comes into force on 9 September 2021.
Common Military List of the European Union
Changes to the Common Military List of the EU were adopted by the Council on 17 February 2020. The Council Common Position 2008/944/CFSP defines common rules governing the control of exports of military technology and equipment. This updates and replaces the Common Military List of the European Union adopted by the Council on 18 February 2019.
US sanctions and the EU Blocking Statute
The Blocking Statute is an EU Regulation enacted in 1996 to nullify the extra-territorial effects of US sanctions against Cuba and Iran. Extra-territorial effects include penalties or other punitive measures imposed by the US on entities operating in the EU because of their trade or commercial links with Iran or Cuba.
The main features of the Blocking Statute are as follows:
- It requires any entity in the EU adversely impacted by US sanctions to inform the Commission directly or via national competent authority.
- It nullifies the effect of any judgment of a court or administrative authority located outside the EU giving effect to a blocked measure.
- It prohibits EU entities from complying with any requirements or prohibitions resulting from a blocked measure.
- It provides that EU entities may obtain an authorisation from the Commission to comply with such prohibitions if non-compliance would seriously damage their interests, or those of the EU.
- Article 6 provides that an EU entity shall be entitled to recover any damages, including legal costs, caused by the application of a blocked measure.
The Department of Enterprise, Trade and Employment is the national competent authority for the Regulation. Statutory Instruments SI No 217/1997 and SI No 319/2018 give full effect to the Regulation in Ireland. In particular, Section 4 of the former SI provides that, “Proceedings in which damages are claimed under Article 6 of the Council Regulation shall be brought in the High Court.”
US sanctions against Iran
In May 2018, the US announced its unilateral withdrawal from the Joint Comprehensive Plan of Action (JCPOA) – the Iran nuclear deal. US sanctions against Iran, which were suspended under the terms of the JCPOA, were re-introduced in two phases, in August and November 2018.
The Blocking Statute was updated in August 2018 in response to this US action.
US sanctions against Cuba
In May 2019 the US activated a provision in the Cuban Liberty and Democratic Solidarity (Helms-Burton) Act of 1996 that it had previously waived. This provision, Title III, allows entities to seek compensation through the US courts for the expropriation of property by the Cuba Government after the 1959 revolution. Compensation can be sought from entities that were subsequent owners of an expropriated property or that ‘trafficking’ in an expropriated property. This means that claims could be made against European companies operating in Cuba on expropriated property, even if they do not own the property e.g. a hotel or an airline.
For further information on the Blocking Statute, please refer to the European Commission’s Guidance Note and Blocking Statute webpage. See also EU statements on the unilateral re-imposition of US sanctions against Iran and the full activation of the Helms-Burton Act in respect of Cuba.
Update to the EU dual-use control list
COMMISSION DELEGATED REGULATION (EU) 2018/1922 of 10 October 2018 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 was published in the EU Official Journal on 14 December 2018.
The Regulation can be found at: eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32018R1922&from=EN
A summary of the changes implemented by this Regulation can be found at: trade.ec.europa.eu/doclib/docs/2018/october/tradoc_157454.pdf
Nuclear-related sanctions against Iran
On 16 January 2016, the Director-General of the International Atomic Energy confirmed to the UN Security Council that Iran has taken the required measures specified in paragraphs 15.1 to 15.11 of Annex V of the Joint Comprehensive Plan of Action (JCPOA) in relation to its nuclear programme. This day is known as Implementation Day in the JCPOA.
A range of EU economic and financial sanctions taken in connection with the Iranian nuclear programme have now been lifted. The sanctions lifted relate to:
- Financial, banking and insurance measures
- Oil, gas and petrochemical sectors
- Shipping, ship building and transport sectors
- Gold, other precious metals, banknotes and coinage
- De-listing of persons, entities, and bodies
Proliferation-related sanctions which remain in place after Implementation Day:
- Arms embargo
- Sanctions in respect of missile technology
- Individuals and entities which remain subject to restrictive measures
- Authorisation regimes in relation to:
- Nuclear transfers and activities
- Enterprise Resource Planning software designed for use in nuclear and military activities
- Metals (certain graphite and raw or semi-finished metals)
Non-proliferation sanctions which are outside the scope of the JCPOA and will remain in place after Implementation Day:
- Sanctions imposed by the EU in view of the human rights situation in Iran, its support for terrorism and other grounds
- Iranian persons who are listed under EU terrorism and Syria sanctions regimes (or any other EU sanction regime)
Applications for export licences for dual use goods not listed in the sanctions regime for Iran can be made to this Department in the normal manner.
A detailed guidance note from the European Commission Note on EU sanctions to be lifted under the JCPOA is available through the attached link: www.eeas.europa.eu/top_stories/pdf/iran_implementation/information_note_eu_sanctions_jcpoa_en.pdf
The relevant Council Regulations (EU) 2015/1861 and (EU) 2015/1862 apply from 16 January 2016.
Notice to exporters – decontrol notes
The Dual Use Regulation includes a number of decontrol notes that provide for exemptions from licensing requirements. These decontrol notes generally apply to more widely available products with a commercial use. The most commonly used decontrol note is the Cryptography Note found under Category 5 Part 2 of the control list.
For the last number of years it has been the practice of this Department to require exporters to make a submission to us confirming their eligibility to avail of an exemption from licensing requirements pursuant to decontrol notes.
However, the Department has recently undertaken a major review of our administration of decontrol notes, including surveying the practices of Licensing Authorities in other Member States and reviewing technical advice.
Recognising that the exporter is best placed to determine compliance with decontrol notes, and reflecting the practices of other Member States, it is no longer necessary for exporters to apply to this Department for an exemption from licensing requirements pursuant to decontrol notes.
Where you are satisfied that you meet the conditions of a particular decontrol note you can claim an exemption from licensing requirements. It is not necessary to apply to the Department of Jobs, Enterprise and Innovation for verification of your eligibility to use the decontrol note or to notify us of your intention to use the decontrol note.
This new policy will ensure that exporters can determine their own compliance with decontrol notes and avail of relevant exemptions without awaiting verification of their eligibility to do so.
The Department reserves the right to request details from exporters claiming exemptions from licensing requirements to ascertain their compliance with the relevant decontrol notes where necessary.
You will note that the revised Regulation includes an update to the cryptography note which now reads:
Note 3: Cryptography Note 5A002 and 5D002 do not control items as follows:
a Items that meet all of the following:
1. Generally available to the public by being sold, without restriction, from stock at retail selling points by means of any of the following:
a. Over-the-counter transactions;
b. Mail order transactions;
c. Electronic transactions; or
d. Telephone call transactions;
2. The cryptographic functionality cannot easily be changed by the user;
3. Designed for installation by the user without further substantial support by the supplier; and
4. When necessary, details of the goods are accessible and will be provided, upon request, to the competent authorities of the Member State in which the exporter is established in order to ascertain compliance with conditions described in paragraphs 1. to 3. above;
1. To meet paragraph a. of Note 3, all of the following must apply:
a. The item is of potential interest to a wide range of individuals and businesses; and
b. The price and information about the main functionality of the item are available before purchase without the need to consult the vendor or supplier.
2. In determining eligibility of paragraph a. of Note 3, competent authorities may take into account relevant factors such as quantity, price, required technical skill, existing sales channels, typical customers, typical use or any exclusionary practices of the supplier.
Exporters should monitor the Official Journal of the EU where all legislation concerning EU restrictive measures is published as it is adopted: View the Official Journal of the EU