Dual-Use Items (Export Control) (Amendment) Regulations, 2013

L.N. 300 of 2013

NATIONAL INTEREST (ENABLING POWERS) ACT

(CAP. 365)

Dual-Use Items (Export Control) (Amendment) Regulations, 2013

IN exercise of the powers conferred 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

(Export Control) (Amendment) Regulations, 2013, and these

regulations shall be read and construed as one with the Dual-Use

Items (Export Control) Regulations, hereinafter referred to as "the

principal regulations".

(2) These regulations implement the relevant provisions of

Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a

Community regime for the control of exports, transfer, brokering and

transit of dual-use items (Recast), hereinafter referred to as "the

Council Regulation".

In subregulation (2) of regulation 1 of the principal

regulations, for the words "as subsequently amended," there shall be

substituted the words "as amended by Council Regulation (EC) No

428/2009 of 5 May 2009 setting up a Community regime for the

control of exports, transfer, brokering and transit of dual-use items

(Recast),".

Subregulation (1) of regulation 2 of the principal

regulations shall be amended as follows

(a)

immediately after the definition "basic scientific

research" there shall be added the following new definitions

" "broker" means any natural or legal person or

partnership resident or established in a Member State of

the Community that carries out brokering services as

defined by these regulations, from the Community into the

territory of a third country;

"brokering services" means

(a) the supply or making available of

information, practical assistance or funds, or the

negotiations or the arrangement of transactions, in

order to conclude an agreement relating to the

transfer of dual-use goods from a third country to

another;

(b) the negotiations or arrangement of

transactions for the purchase, sale or supply of dual-

use items from a third country to another third

country or the selling or buying of dual-use items

located in third countries to transfer to another third

country;";

(b) for the definition "Community general export

authorization" there shall be substituted the following

"Community general export authorization" means

an export authorisation for exports to certain countries of

destination available to all exporters who respect its

conditions of use as listed in Annex II of the Council

Regulation;";

(c) for the definition "export" there shall be substituted

the following

" "export", unless the context otherwise requires,

means an 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; it includes making available in an electronic

form such software and technology to legal and

natural persons and partnerships. Export also applies

to oral transmission of technology when the

technology is described over the telephone;";

(d) for the definition "exporter"

there shall be

substituted the following

"exporter" shall mean any natural or legal person

or partnership

(a) 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 the Community. If no export

contract has been concluded or if the holder of the

contract does not act on its own power for

determining the sending of the item out of the

customs territory of the Community;

(b) which decides to transmit or make

available software or technology by electronic

media including by fax, telephone, electronic mail

or by any other electronic means to a destination

outside the Community.

Where the benefit of a right to dispose of the

dual-use item belongs to a person established outside the

Community pursuant to the contract on which the export is

based, the exporter shall be considered to be the

contracting party established in the Community;";

(e)

immediately after the definition "exporter" there

shall be added the following new definitions

" "global export authorisation" means an

authorisation granted to one specific exporter in respect of

a type or category of dual-use item which may be valid for

exports to one or more specified end users and, or in one or

more specified third countries;

"individual export authorisation" means an

authorisation granted to one specific exporter for one end

user or consignee in a third country and covering one or

more dual-use items;";

(f)

the definition "items in transit" shall be deleted;

(g) immediately after the definition "Minister" there

shall be added the following new definition

" "non-Community dual-use items" shall mean

items that have the status of non-community goods within

the meaning of Article 4(8) of the Community Customs

Code;"; and

(h) immediately after the definition "technical

assistance" there shall be added the following new definition

"transit" means a transport of non-Community

dual-use items entering and passing through the customs

territory of Malta with a destination outside the

Community;".

Immediately after regulation 3 of the principal regulations, Adds new

regulation 3A to

there shall be added the following new regulation

the principal

regulations

" Transit of

3A. (1) The Director may prohibit

dual-use items.

the transit of non-Community dual-use items

listed in Annex I of the Council Regulations if

the items are or may be intended, in their

entirety or in part, for uses referred to in

Article 4(1) of the Council Regulation. When

deciding on such a prohibition, the Director

shall take into account the obligations and

commitments Malta has agreed to as a party

to international treaties or as a member of

international non-proliferation regimes.

(2) Before deciding whether or not to

prohibit a transit, the Director may impose in

individual cases an authorisation requirement

for the specific transit of dual-use items listed

in Annex I of the Council Regulations if the

items are or may be intended in their entirety

or in part for the uses mentioned in Article

4(1) of the Council Regulation.

(3) The Director may prohibit the

transit of non-Community dual-use items not

listed in Annex I for uses referred to in Article

4(1) of the Council Regulation and to dual-

use items for military end use and destinations

referred to in Article 4(2) of the Council

Regulation. When deciding on such a

prohibition, the Director shall take into

account the obligations and commitments

Malta has agreed to as a party to international

treaties or as a member of international non-

proliferation regimes.

(4) Subregulation (2) shall also apply

to the transit of non-Community dual-use

items not listed in Annex I of Council

Regulation referred to in subregulation (3).

(5) Subregulations (1), (2), (3) and (4)

shall also apply to items which are

transboarded from one vessel or aircraft onto

another.".

Immediately after subregulation (5) of regulation 4 of the

principal regulations, there shall be added the following new

subregulation

"(6) The Director shall process requests for

authorisations for export within ninety working days from the

date of receipt of the request

Provided that if there are any missing documents

which should have accompanied the request, the Director shall

request the person making the request to submit such

documentation within a time-period to be stipulated by the

Director. If the requested documentation is not provided within

the time-period stipulated, the request shall be deemed invalid

and shall be cancelled

Provided further that the period of ninety working

days may, on reasonable grounds to be indicated by the

Director, be extended for a further period of ninety working

days.".

Subregulation (4) of regulation 5 of the principal

regulations shall be deleted.

In subregulation (1) of regulation 6 of the principal

regulations, the words "and (4)" shall be deleted.

Immediately after regulation 8 of the principal regulations,

there shall be added the following new regulations

" Brokering

(1) Any person, whether natural

services.

or legal, wishing to offer any brokering

service, must submit a written request to the

Director for the issue of a licence to act as a

broker. All the relevant information requested

by the Director shall be provided in the

written request.

(2) No person shall offer any

brokering services unless he is in possession

of a licence issued by the Director to act as a

broker.

(3) The Director may consult with the

Police authorities, the Ministry of Foreign

Affairs and the relative export control

authorities located in other Member States,

before making a final decision on whether to

issue or deny a licence to act as a broker.

(4) The

request

mentioned

in

subregulation (1) shall include the following

(a)

the name, address, identity

card number or company registration

number, e-mail address, telephone

number and any other relevant contact

details of the person making the request;

(b) the item(s) or service(s)

which the person making the request

wants to provide brokering services for;

(c)

the reference code found in

the dual-use list of the Council

Regulation for the item(s) or service(s)

indicated by the person making the

request;

(d) the end-use of the item(s) or

service(s) subject to brokering services;

(e)

the end-use destination of

the item(s) or service(s) subject to

brokering services;

(f)

the

relative

Chemical

Abstract Services (CAS) number, if

applicable;

(g) a recent Police Conduct

Certificate; and

(h) the date of the submission of

a written request and the signature of the

person making the request.

(5) A brokering licence issued under

these regulations shall be limited to specific

brokering services and to specific end-use

destinations which will be determined by the

Director on a case by case basis. These shall

be indicated on the brokering licence itself.

(6) A brokering licence granted by the

Director in pursuance of these regulations

may be

(a)

limited to a specific date;

(b) subject to conditions;

(c)

annulled,

suspended,

modified or revoked by the Director.

(7) The Director shall process requests

for the issue of a licence to act as a broker

within sixty working days from the date of

receipt of the written request

Provided that if there is insufficient

information or if additional information is

requested by the Director, the Director shall

request the person making the request to

submit such information within a stipulated

time-period. If the requested information is

not provided within the time-period

stipulated, the request shall be deemed invalid

and shall be cancelled

Provided further that the period of

sixty working days may, on reasonable

grounds to be indicated by the Director, be

extended for a further period of thirty working

days.

(8) When the Director refuses to issue

a licence to act as a broker he shall indicate

the reason(s) for such refusal.

(9) A broker who is duly licensed by

the competent authority of another Member

State shall be deemed to be licensed under

these regulations

Provided that such broker provides

the Director with a duly certified original

document attesting such licence.

A licenced broker shall submit a

Reporting

obligations.

report regarding his brokering services to the

Director every six months from the issue of

the licence.

(1) An authorisation shall be

Authorisation

requirements in

required for brokering services of dual-use

relation to

brokering

items listed in Annex I of the Council

services.

Regulation if the broker has been informed by

the Director that the items in question are or

may be intended, in their entirety or in part,

for any of the uses referred to in Article 4(1)

of the Council Regulation. If a broker is

aware that the dual-use items listed in Annex I

of the Council Regulation for which he

proposes brokering services are intended, in

their entirety or in part, for any of the uses

referred to in Article 4(1) of the Council

Regulation, he must notify the Director who

shall decide whether or not it is expedient to

make such brokering services subject to

authorisation.

(2) Subregulation (1) shall also apply

to non-listed dual-use items for uses referred

to in Article 4(1) of the Council Regulation

and to dual-use items for military end use and

destinations referred to in Article 4(2) of the

Council Regulation.

(3) An authorisation shall also be

required on the brokering of dual-use items, if

the broker has grounds for suspecting that

these items are or may be intended for any of

the uses referred to in Article 4(1) of the

Council Regulation.

(4) The Director shall process requests

for authorisations within ninety working days

from the date of receipt of the request

Provided that if there are any

missing documents which should have

accompanied the request, the Director shall

request the person making the request to

submit such documentation within a time-

period to be stipulated by the Director. If the

requested documentation is not provided

within the time-period stipulated, the request

shall be deemed invalid and shall be

cancelled

Provided further that the period of

ninety working days may, on reasonable

grounds to be indicated by the Director, be

extended for a further period of ninety

working days.".

Regulation 14 of the principal regulations shall be

amended as follows

(a)

immediately after subregulation (1) thereof, there

shall be added the following new subregulation

"(1A) Brokers shall keep detailed registers or

records for brokering services which fall under the scope

of these regulations. Such registers and records shall

contain sufficient information to allow the following to be

identified

(a) the description of the dual-use items

that were the subject of brokering services;

(b) the period during which the items were

the subject of such services and their destination;

and

(c) the countries concerned by

the

brokering services above-mentioned."; and

(b) in subregulation (2) thereof, for the words "in

subregulation (1)" there shall be substituted the words "in

subregulations (1) and (1A)".

€0.90