DUAL-USE ITEMS (EXPORT CONTROL) REGULATIONS

SUBSIDIARY LEGISLATION 653.03

DUAL-USE ITEMS (EXPORT CONTROL)

REGULATIONS

20th September, 2004

LEGAL NOTICE 416 of 2004, as amended by Legal Notices 425 of 2007

and 300 of 2013.

(1) The title of these regulations is the Dual-Use Items

(Export Control) Regulations.

(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 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), hereinafter

referred to as "the Council Regulation".

(Regulation 4(3) and (4))

Authorization Application Form

(1)

In these regulations, unless the context otherwise

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;

"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;"

"Community" means the European Community;

"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;

"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 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;

"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" 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;

"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;

"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);

"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;

"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;

"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;

"Minister" means the Minister responsible for trade;

"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;

"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-inground effect

for positive lift;

"technical assistance" means any technical support related to

r e p a i r s , d e v e l o p m e n t , m a n u f a c t u r i n g , a s s e m b l y, t e s t i n g ,

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;

"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;

"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 subregulation is a reference to the

subregulation which is so numbered in the regulation

where the reference occurs.

(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 prohibit 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

i n p a r t , f o r u se s r e f e r r e d t o i n A r t i c l e 4 ( 1 ) o f t h e C o u n c i l

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.

(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, 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, 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.

(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.

(1)

Subject to the provisions of these regulations -

(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 subregulation (1) do not prohibit

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

writi ng has been granted by the Director, provided that all

conditions attaching to the authorization are complied with.

(3) Paragraph (d) of subregulation (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.

(1) Without prejudice to regulation 5(1), 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

subregulation (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

dualuse items not listed in Annex I of the Council Regulation, 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

(a) for any of the uses referred to in regulation 5(1)(b), 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 subregulations (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, the Director may

prohibit or impose an authorization requirement on the export of

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

reasons 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 subregulation (2).

(1) Any person, whether natural 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 report regarding his

brokering services to the Director every six months from the issue

of the licence.

(1) An authorisation shall be required for brokering

services of dual-use items listed in Annex I of the Council

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.

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 thirty days after any person makes an

export for a first time by virtue of an authorization granted by the

Director, or 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 subregulation (1) shall, not later than thirty 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 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.

(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.

(2) The records referred to in subregulations (1) and (1A) 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

a u t ho r i ty, a t a ny r e a s o na b le ho u r en te r, f o r t h e p u r po s e o f

subregulation (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

subregulation (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 one hundred and sixteen thousand and four hundred and

sixty-eight euro and sixty-seven cents (116,468.67).

(2) No person is guilty of an offence under subregulation (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;

DUAL-USE ITEMS (EXPORT CONTROL)

(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.

DUAL-USE ITEMS (EXPORT CONTROL)