416 tal-2004 - Regolamenti tal-2004 dwar il-Kontroll fl-Esportazzjoni ta’ Oġġetti li għandhom Użu Doppju

L.N. 416 of 2004

NATIONAL INTEREST (ENABLING POWERS) ACT

(CAP. 365)

Dual-Use Items (Export Control) Regulations, 2004

IN virtue of the powers vested in him by article 3(3) of the National

Interest (Enabling Powers) Act, the Prime Minister has made the

following regulations>

(1) The title of these regulations is the Dual-Use Items Citation and scope.

(Export Control) Regulations, 2004.

(2) These regulations implement the provisions of Council

Regulation (EC) No 1334#2000 of the 22nd June, 2000 setting up a

Community regime for the control of exports of dual-use items and

technology, as subsequently amended, hereinafter referred to as “the

Council Regulation”.

(1)

In these regulations, unless the context otherwise Interpretation.

requires>-

“Act” means the National Interest (Enabling Powers) Act<

“basic scientific research” means experimental or theoretical

work undertaken principally to acquire new knowledge of the

fundamental principles of phenomena or observable facts, not

primarily directed towards a specific practical aim or objective<

“Community” means the European Community<

“Community general export authorization” means the export

authorization constituted by regulation 6 of these regulations<

“country” includes territory<

“Director” means the director responsible for trade and

includes any officer designated or authorised by the Director to

act for a purpose or class of purposes of these regulations<

“dual-use items” means any used or unused items, including

software and technology, which can be used for both civil and

military purposes, and including all goods which can be used for

both non-explosive uses and for assisting in any way in the

manufacture of nuclear weapons or other nuclear explosive devices<

“export”, unless the context otherwise requires, means export

from Malta, and includes>

(a)

re-export of dual-use items, and

(b) the transmission of software or technology by fax,

telephone or other electronic media (except that oral

transmission of technology by telephone is included only

where the technology is contained in a document the relevant

part of which is read out over the telephone, or is described

over the telephone in such a way as to achieve substantially

the same result as if it had been so read)<

“export declaration” means the act whereby a person indicates

in the prescribed form and manner the wish to place dual-use items

under an export procedure<

“exporter” means any natural or legal person on whose behalf

an export declaration is made, that is to say the person who, at the

time when the declaration is accepted, holds the contract with the

consignee in the third country and has the power for determining

the sending of the item out of the customs territory of Malta. If no

export contract has been concluded or if the holder of the contract

does not act on its own behalf, the power for determining the

sending of the item out of the customs territory of Malta shall be

decisive< “exporter” also means any natural or legal person who

decides to transmit software or technology by electronic media,

fax or telephone to a destination outside Malta<

“import” and “export” in relation to a vessel, submersible

vehicle or aircraft includes the taking into or out of Malta of the

vessel, submersible vehicle or aircraft notwithstanding that the

vessel, submersible vehicle or aircraft is conveying goods or

passengers, and whether or not it is moving under its own power<

and cognate expressions shall be construed accordingly<

“in the public domain” means available without restriction

upon further dissemination (no account being taken of restrictions

arising solely from copyright)<

“international export control regimes, bodies and treaties”

means the Australia Group, Missile Technology Control Regime,

Nuclear Supplies Group, Wassenaar Arrangement, Zangger

Committee and the Chemical Weapons Convention<

“items in transit” means items which only pass through the

territory of Malta, that is those which are not assigned a customs-

approved treatment or use other than the external transit procedure

or which are merely placed in a free zone or a free warehouse and

where no record of them has to be kept in an approved stock record<

“military end-use” means>

(a)

incorporation into military items listed in the military

list<

(b) use of production-, test- or analytical equipment and

components therefor, for the development, production or

maintenance of military items listed in the military list<

(c) use of any unfinished products in a plant for the

production of military items listed in the military list<

“military list” means the list of military equipment as

established in the Military Equipment (Export Control)

Regulations, 2001<

“Minister” means the Minister responsible for trade<

“normal commercial journey” means a journey providing

transport services in the ordinary course of business<

“person” means any natural or legal person<

“scheduled journey” means one of a series of journeys which

are undertaken between the same two places and which together

amount to a systematic service operated in such manner that its

benefits are available to members of the public from time to time

seeking to take advantage of it<

“surface effect vehicle” means any air cushion vehicle

(whether side wall or skirted) and any vehicle using the wing-in-

ground effect for positive lift<

“technical assistance” means any technical support related to

repairs, development, manufacturing, assembly, testing,

maintenance, or any other technical service, and may take the forms

such as instruction, training, transmission of working knowledge

or skills or consulting services< technical assistance includes also

oral forms of assistance<

“vessel” includes any ship, surface effect vehicle, vessel of

small waterplane area or hydrofoil, and the hull or part of the hull

of a vessel.

(2) Any reference in these regulations to time after an event

is a reference to a period of that length of time beginning on the day

after that event.

(3) In these regulations, except where the context otherwise

requires, any reference to>

(a) a numbered regulation is a reference to the regulation in

these regulations which is so numbered<

(b) a numbered sub-regulation is a reference to the sub-

regulation which is so numbered in the regulation where the reference

(1) An authorization shall be required for the export of the

dual-use items listed in Annex I of the Council Regulation.

(2) Pursuant to regulation 7 or regulation 8, an authorization

may also be required for the export to all or certain destinations of certain

dual-use items not listed in Annex I of the Council Regulation.

(3) An authorization shall also required for intra-Community

transfers of dual-use items listed in Annex IV of the Council Regulation.

(1) The Director may grant authorizations for the export of

dual-use items as specified in these regulations.

(2) Any authorization granted by the Director in pursuance

of these regulations or having effect as if so granted may be>

(a)

either individual, global or general<

(b) limited so as to expire on a specified date unless renewed<

(c) subject to or without conditions, and any such condition

may require or prohibit any act before or after the export of items

under that authorization<

(d) annulled, suspended, modified or revoked by the

Director.

(3) An individual export authorization may be granted to

an individual exporter, upon application on a form as set out in the

Schedule to these regulations, for the export of a specified dual-use

item to a specified consignee up to the quantity specified in the

authorization.

(4) A global export authorization may be granted to an

individual exporter, upon application on a form as set out in the Schedule

to these regulations, for the export of specified dual-use items up to the

quantities specified in the authorization, to specified consignees in one

or more specified countries.

(5) When applying for an export authorization, exporters

shall supply the Director with all the relevant information required for

their applications.

(1) Subject to the provisions of these regulations>

Exports of dual-

use items.

(a) no person shall make any export of items specified in

Annex I of the Council Regulation, to any destination except under

and in accordance with an authorization as specified in regulation

4<

(b) no person shall export to any destination any dual-use

items whether or not listed in Annex I of the Council Regulation

which that person has grounds for suspecting that the items are or

may be intended, in their entirety or in part, for use in connection

with the development, production, handling, operation,

maintenance, storage, detection, identification or dissemination of

chemical, biological or nuclear weapons or other nuclear explosive

devices, or the development, production, maintenance or storage

of missiles capable of delivering such weapons, unless that person

has made all reasonable enquiries as to their proposed use and is

satisfied that they will not be so used<

(c) no person shall make to any destination any export

consisting of the transmission by fax, telephone or other electronic

media of dual-use items in the form of software or technology if>

(i) that person has been informed by a competent

authority that the software or technology are or may be

intended, in their entirety or in part, for any of the uses referred

to in paragraph (b)< or

(ii) that person is aware that the software or technology

are intended, in their entirety or in part, for any of the uses

referred to in paragraph (b)< or

(iii) that person has grounds for suspecting that the

software or technology are or may be intended, in their entirety

or in part, for any of the uses referred to in paragraph (b),

unless that person has made all reasonable enquiries as to

their proposed use and is satisfied that they will not be so

used< and

(d) no person shall provide technical assistance in any

destination, if that assistance is intended, or the provider is aware

that it is intended, in its entirety or in part, for any of the uses

referred to in paragraph (b).

(2) Paragraphs (b) and (c) of sub-regulation (1) do not

prohibit the export of any items in relation to which an authorization in

writing has been granted by the Director, provided that all conditions

attaching to the authorization are complied with.

(3) Paragraph (d) of sub-regulation (1) does not prohibit

technical assistance>

(a) where it is provided in a Member State of the European

Union or in a country listed in Part 3 of Annex II of the Council

Regulation<

(b) where it takes the form of transferring information that

is in the public domain, or consists of basic scientific research< or

(c) where it is in oral form and not related to items required

to be controlled by one or more of the international export control

regimes, bodies and treaties.

(4) The provisions of these regulations apply also to items

in transit and items which are transboarded from one vessel or aircraft

onto another.

(1) Without prejudice to sub-regulations (1) and (4) of

regulation 5, a Community general export authorization is hereby granted

in respect of those items for export to those destinations, as specified in

Annex II of the Council Regulation, subject to the conditions and

requirements set out therein and to any additional conditions and

requirements as may be imposed by the Director. The items listed in

Part 2 of Annex II of the Council Regulation and Part 2 of Annex IV of

the Council Regulation are not covered by this Community general

export authorization.

(2) The Community general export authorization specified

in sub-regulation (1) cannot be utilised if the exporter knows at the

time of export that the final destination of those items is outside the

specified countries and no processing or working is to be performed on

those items in those countries to which they are to be exported.

(1) An authorization shall be required for the export of dual- Dual-use

listed in Annex I

use items not listed in Annex I of the Council Regulation, if the exporter of the Council

has been informed by a competent authority that the items in question Regulation.

are or may be intended, in their entirety or in part>

(a) for any of the uses referred to in sub-regulation (1)(b)

of regulation 5, or,

(b) for use as parts or components of military equipment

listed in the military list, which was previously exported without

authorization or in violation of an authorization requirement.

(2) If an exporter is aware that dual-use items which he

proposes to export, not listed in Annex I of the Council Regulation, are

intended in their entirety or in part, for any of the uses referred to in

sub-regulations (1)(a) and (1)(b) and regulation 8, he must notify the

Director, who will decide whether or not it is expedient to make the

export concerned subject to authorization.

(1) Without prejudice to regulation 7 hereof, the Director Imposition of

authorization

may prohibit or impose an authorization requirement on the export of requirement in

dual-use items not listed in Annex I of the Council Regulation for reasons particular

circumstances.

of public security or human rights considerations.

(2) An authorization shall also be required for the export of

dual-use items not listed in Annex I of the Council Regulation, 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 of the European Union or a decision of the Organisation for

the Security and Co-operation in Europe or an arms embargo imposed

by a binding resolution of the Security Council of the United Nations

and if the exporter has been informed by a competent authority that the

items in question are or may be intended, in their entirety or in part, for

a military end-use.

(3) An authorization shall also be required for the provision

of technical assistance relating to a military end-use, if that assistance

is provided in countries of destination subject to an arms embargo

referred to in sub-regulation (2).

Any authorization granted as set out in these regulations may

be subject, if appropriate, to certain requirements and conditions, such

as an obligation to provide an end-use statement.

(1) These regulations do not apply in respect of the supply

of services or the transmission of technology if that supply or

transmission involves cross-border movement of natural persons.

(2) Nothing in these regulations prohibits the export of>

(a)

any aircraft on a scheduled journey<

(b) any aircraft the immediately preceding import of which

was on a scheduled journey and which is intended for further

scheduled journeys<

(c) any vessel which is departing temporarily from Malta

on trials<

(d)

any vessel proceeding on a normal commercial

journey.

When completing the formalities for the export of dual-use

items at the customs office responsible for handling the export

declaration, the exporter shall furnish proof that any necessary export

authorization has been obtained.

(1)

For the purposes of obtaining any authorization no

person shall>

(a) make any statement or furnish any document or

information which to that person’s knowledge is false in a material

particular< or

(b) recklessly make any statement or furnish any document

or information which is false in a material particular.

(2) Any authorization which may have been granted by the

Director in connection with an application for which a false statement

was made or a false document or information was furnished shall be

void as from the time it was granted.

(1) Not later than 30 days after any person makes an export Registration

provision of

for a first time by virtue of an authorization granted by the Director, or information.

the Community general export authorization, that person shall give to

the Director written notice of the following particulars>

(a)

the name of the person< and

(b) the address at which copies of the records referred to in

regulation 14 may be inspected by any person authorised by the

Minister under regulation 14.

(2) A person who has given to the Director written notice

of particulars under paragraph (1) shall, not later than 30 days after any

change in those particulars, give to the Director written notice of the

changed particulars.

(1) Exporters shall keep detailed registers or records of their Record keeping

and inspection.

exports. Such registers or records shall include in particular commercial

documents such as invoices, manifests and transport and other dispatch

documents, containing sufficient information to allow the following to

be identified>

(a)

the description of the dual-use items<

(b) the quantity of the dual-use items<

(c) the name and address of the exporter and of the

consignee<

(d) in so far as it is known to that person, the end-use of the

items and the name and address of the end-user.

(2) The records referred to in sub-regulation (1) shall be

kept for at least three years from the end of the calendar year in which

the export took place, and the person concerned shall permit any such

records to be inspected and copied by any person authorised by the

Minister.

(3) Any person authorised by the Minister may, on

producing if required to do so a duly authenticated document showing

his authority, at any reasonable hour enter, for the purpose of sub-

regulation (2), the premises of which the address has most recently been

notified to the Director under regulation 13.

(4) Where any documents or records referred to in sub-

regulation (2) are kept in a form which is not legible, the exporter shall

at the request of the person authorised by the Minister, reproduce such

documents or records in a legible form.

(1) Any person in Malta, or any citizen or permanent

resident of Malta, whether in Malta or elsewhere, who>

(a) exports items from Malta by virtue of an authorization

granted by the Director, or the Community general export

authorization, and fails to comply with any condition attaching to

that authorization, or

(b) contravenes any of these regulations,

shall be guilty of an offence and liable on conviction to a term of

imprisonment not exceeding five years or to a fine (multa) not exceeding

fifty thousand liri.

(2) No person is guilty of an offence under sub-regulation

(1) (a) where>

(a)

as the case may be>

(i) the condition in question had been previously

modified without that person’s consent by the Director<

(ii) in the case of the Community general export

authorization the condition in question had been previously

modified<

(b) the alleged failure to comply would not have been a

failure had the authorization, or the Community general export

authorization not been so modified< and

(c) that person proves that the items in relation to which he

has failed to comply with the condition had, at the time the condition

was modified, already been exported.

The Dual-Use Items (Export Control) Regulations, 2001 are

hereby repealed.

B