Export control guidelines on dual-use items for companies
It is easier for companies to deal with the licensing authorities if they have proper export control guidelines in place.
Dual-use items are items that have both commercial and military applications. The Ministry for Foreign Affairs has prepared a recommendation for companies exporting dual-use items on the basis of which they can prepare their own export control guidelines (Internal Compliance Programme, ICP).
Best practices guidelines as part of the Wassenaar Arrangement
A list of elements that exporters should include in their guidelines is appended to the Best Practices document approved by the Wassenaar Arrangement Plenary in 2011.
The Ministry for Foreign Affairs encourages companies to use these practices in their own export control guidelines.
Things to consider before exporting dual-use items
The company pledges to observe all export control laws and its own internal export control practices at all levels of its organisational structure.
The company must establish its own internal export control practices:
- The company management must give a written statement that the company will comply with all export control laws in its export business.
- Export control matters must be made the responsibility of a separate unit specialising in export control matters or another unit that is capable of managing the task.
- The company must appoint a manager in charge of export control matters and, if necessary, assistant export control managers.
- Providing employees with export control training must be made into a permanent practice. The purpose of the training is to ensure that the personnel are aware of the export control legislation, export control practices and control lists.
Things to consider during the export process
- Check whether exporting the items or technology requires a licence (are the items or the technology included in the control lists) or whether the Ministry for Foreign Affairs, in its capacity as the national licensing authority, has imposed controls on the exports of the items that cover one or more countries of destination (catch-all).
- Check that the items or technology to be exported will only be used for the stated purposes.
- Check that none of the customers or end users are identified with red flags.
- Implement practices that prevent the diversion of the items or technologies to unauthorised end users.
- Check that all the measures listed above are in place before the delivery and that the items or the technologies and their quantities correspond to the information given in the export licence.
Checklist after the export process
A company must keep detailed records of its deliveries. The record-keeping requirement is laid down in Article 20 of the Council Regulation (EC) No 428/2009 under which the records must be kept for three years from the end of the calendar year in which the export delivery took place. The records must be made available to the competent authorities at their request.
The following information must be included in the records:
- the description of the dual-use items
- the quantity of the dual-use items
- the name and address of the exporter and the customer or the consignee
- the end use and end user of the dual-use items, where known.
ICP recommendation guides companies through export control legislation
Company-internal export control guidelines play a particularly important role when the prerequisites for issuing global export authorisations are considered.
Under Article 12(2) of the Council Regulation (EC) 428/2009, when assessing an application for a global export authorisation, a Member State must take into consideration whether the exporter is capable of complying with the provisions of the Regulation.
The Council Regulation (EC) No 428/2009 and the Act on the Control of Exports of Dual-Use Goods are the two pieces of legislation regulating the exports of dual-use items from Finland.
The purpose of the ICP recommendation issued for companies exporting dual-use items from Finland is to make it easier for companies to deal with the national licensing authority and to help them to comply with export control laws.
Determining whether an item is subject to export controls
Determining whether export controls apply to a specific item is the responsibility of the exporter. The manufacturer is thoroughly familiar with the technology of its products and for this reason, it should also be the party determining the export control classification of an item.
The export control legislation also applies to computer programs, training offerings and financial services that can be used in military programmes. In addition to the transfer of visible technology and know-how, intangible or invisible transfer by phone or by electronic means is also subject to controls.
The exporter must make thorough checks well in advance to verify whether an item or technology is subject to export controls. The lists of dual-use items subject to controls are prepared as part of international export control regimes. As a party to these arrangements, Finland is one of the countries deciding which items should be included in the lists.
The export control regimes are as follows:
- Wassenaar Arrangement (WA): export control regime for conventional arms and dual-use items,
- Australia Group (AG): control regime for chemical and biological items,
- Missile Technology Control Regime (MTCR) and the
- Nuclear Suppliers Group (NSG).
The lists prepared as part of international export control regimes are combined into a single list by the EU. This list is part of the dual-use regulation of the EU, which is binding on all EU Member States and exporters. The list was last updated on 30 December 2014.
For more information, visit the export control website of the EU.
Advance information about the controls and export control classification
If necessary, the Ministry for Foreign Affairs may provide written advance information about the export control classification of specific items and whether they are subject to controls. The time required for processing an application for advance information depends on such matters as the expert opinions required for the information.
Exports of listed items that are not subject to controls
Items that are not included in the control lists may also be made subject to controls by the decision of the national authority. Such catch-all decisions are only made when there is a possibility that a specific item may be used in weapons of mass destruction or for other unwanted military purposes.
- The use may be connected with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons. It may also be connected with the development, production, maintenance or storage of missiles capable of delivering such weapons that come under the scope of similar non-proliferation regimes.
- Authorisation for the export of dual-use items not included in the lists of items is also required if the purchasing country or country of destination is subject to an arms embargo decided by a common position or joint action adopted by the Council or a decision of the Organization for Security and Co-operation in Europe or an arms embargo imposed by a binding resolution of the Security Council of the United Nations.
- If the exporter knows or has reasons to believe that the items in question are intended, in their entirety or in part, for any of the purposes referred to above, the exporter must notify the authorities in its country of the matter. The authorities must then decide whether an export licence should be required for the items.
- In order to ensure effective export controls, exporters’ obligations have been broadened at the national level. They also cover situations where the exporter has reasons to believe that the items are intended for purposes referred to in section 4 of the Act on the Control of Exports of Dual-Use Goods.
- Unlike Article 4 of the Council Regulation, Finnish legislation also applies to intra-Community transfers in which an item or service is sold from Finland to another Member State but it is known or there are reasons to believe that the end user is outside the Community and all other prerequisites laid down in the provision are met. The provisions referred to above are also known as a catch-all provision.
Provisions on penalties for intentional violation of the notification obligation or an attempted violation of the notification obligation are laid down in chapter 46 of the Criminal Code and for violations resulting from negligence in section 9 of the Act on the Control of Exports of Dual-Use Goods.
For more information about exports of dual-use items, contact the Export Control Unit of the Ministry for Foreign Affairs (TUO-30), at tuo-30(at)formin.fi or vientivalvonta.um(at)formin.fi.
Export control brochure of the Ministry for Foreign Affairs: Export control brochure