Notice to Exporters 2018/11: OGELs amended to exclude Burma
Notice to exporters 2018/11: OGELs amended to exclude Burma
Published 1 May 2018
On 27 April the EU amended its Burma sanctions regime to extend and strengthen its measures.
Council Decision 2013/184/CFSP recognised positive developments in Burma and lifted all restrictive measures with the exception of the arms embargo and the embargo on equipment which might be used for internal repression.
Council Decision 2018/655/CFSP of 26 April 2018 amended Decision 2013/184/CFSP to impose further restrictive measures on Burma. These include prohibiting the export of dual-use goods for military and Border Guard Police end users, and restrictions on the export of equipment for monitoring communications that might be used for internal repression.
The restrictive measures came into force on 27 April 2018. As a result, the Export Control Joint Unit (ECJU) has amended and republished the following open general export licences (OGELs):
These OGELs have been updated to remove Burma as a permitted destination from Schedule 2.
The ECJU is currently reviewing all extant export and trade control licences for Burma because of the amendment to EU sanctions. Any licence holders affected by these new measures will be contacted directly. We will provide further information in the next few days.
The UK interprets the arms embargo as applying to all items on the UK military list. There are related prohibitions on the provision of technical assistance, financing and financial assistance, brokering services, and other related services.
Prohibition on the supply of dual-use goods for military use, military end-users or the Border Guard Police
There is a prohibition on the sale, supply, transfer or export of goods included in Annex I to Council Regulation No 428/2009 (The Dual-Use Regulation), if those items are intended for military use, military end-users or the Border Guard Police. There are related prohibitions on the provision of technical assistance, financing and financial assistance, brokering services and other services. These items already require licences for export outside of the EU, and the licensing process will take this prohibition into account.
This prohibition does not apply to the execution of contracts concluded before 27 April 2018 or ancillary contracts necessary for the execution of such contracts. Licence applicants wishing to rely on these exemptions must notify ECJU of the contract within 5 working days from the entry into force of the regulation and provide a copy of the relevant contract or agreement in support of their licence application.
The existence of a relevant contract does not guarantee that a licence will be granted. Licence applications for military and dual-use items not prohibited by the new sanctions will continue to be assessed against the consolidated EU and national arms export licensing criteria in the usual way.
Prohibition on the supply of equipment which might be used for internal repression
There is an existing prohibition on the supply of equipment which might be used for internal repression. There are related prohibitions on the provision of technical assistance, financing and financial assistance, brokering services, and other related services.
There are changes to the grounds under which Member States may authorise the export of such equipment for humanitarian or protective use, as well as for de-mining operations.
Equipment for monitoring communications
A licence will be required for the supply of equipment, technology or software intended primarily for use in the monitoring or interception of internet or telephone communications on mobile or fixed networks in Burma. The goods and technologies affected are listed in Annex III to Council Regulation 401/2013 as amended.
There is a prohibition on the provision of telecommunications or internet monitoring or interception services to Burma’s government or associated bodies. There are related prohibitions on the provision of technical assistance, financing and financial assistance and brokering services.
Provision of telecommunication or internet monitoring or interception services
There is a prohibition on the provision of any kind of telecommunication or internet monitoring or interception services to, or for the benefit of the Government of Burma, and related bodies.
Where can I find the list of restricted goods, technologies and services related to the monitoring or interception of Internet and telephone communications?
The technologies concerned are defined in Article 3b and 3c and Annex III of Council Regulation No 2013/401 as amended.
What form do the restrictions on goods, technologies and services related to the monitoring or interception of internet or telephone communications take?
A licence is required for:
sale, supply, transfer or export of the listed technologies to Burma, or for any other country if the technologies are for use in Burma
provision of technical assistance, brokering services, financing and financial assistance related to the sale, supply, transfer or export of these technologies to Burma or for use in Burma
provision of telecommunication or internet monitoring or interception services to Burma’s government or associated entities.
A licence will not be granted for the above if there are reasonable grounds to determine that the equipment, technology, software or services would be used primarily for internal repression monitoring or interception, by Burma’s government, public bodies, corporations and agencies or any person or entity acting on their behalf or at their direction.
What date do the new restrictions come into force?
The restrictions came into force on 27 April 2018.
How do I apply for a licence?
Licence applications must be submitted to the ECJU in the Department for International Trade via SPIRE, the online export licensing system.
What information must I provide in support of a licence application?
You must provide full details of:
goods and/or technology you wish to export or service you wish to provide
consignee and, if different, the end-user of the goods as well as any third party involved in the transaction
intended end-use of the goods, including (where known) the project name and the location where the goods will be used
What happens then?
The ECJU will consider your application carefully against the terms of the EU sanctions. You may be asked to provide further information or clarification. You will be informed of the outcome of your application via the SPIRE system. The ECJU aims to deal with licence applications promptly, but because these are new restrictions we cannot at this time give an estimate as to how long it will take to process these applications.
How will government ensure compliance?
We expect all UK companies to comply fully with the sanctions, and government is committed to helping businesses comply. Her Majestry’s Revenue & Customs and Border Force are responsible for ensuring compliance with export controls and trade sanctions and they have a range of measures available to them to ensure this. The unlicensed export of controlled goods is a criminal offence and serious and deliberate evasion of the controls may lead to prosecution.
While the government can give general advice and guidance about the scope of these new restrictions and how to comply with them, we cannot give legal advice – companies requiring legal advice should make their own arrangements