Export authorisation requirement
1. For any export of goods listed in Annex IV, an authorisation shall be required irrespective of the origin of such goods. However, no authorisation shall be required for goods which only pass through the customs territory of the Union, namely those which are not assigned a customs approved treatment or use other than the external transit procedure under Article 226 of Regulation (EU) No 952/2013, including storage of non-Union goods in a free zone.
Annex IV shall only comprise goods that could be used for the purpose of capital punishment and have been approved or actually used for capital punishment by one or more third countries that have not abolished capital punishment. It shall not include:
(a)
firearms controlled by Regulation (EU) No 258/2012;
(b)
dual-use items controlled by Regulation (EC) No 428/2009 and
(c)
goods controlled in accordance with Common Position 2008/944/CFSP.
2. Where the export of medicinal products requires an export authorisation pursuant to this Regulation and the export is also subject to authorisation requirements in accordance with international conventions controlling narcotic drugs and psychotropic substances, such as the 1971 Convention on Psychotropic Substances, Member States may use a single procedure to carry out the obligations imposed on them by this Regulation and by the relevant convention.
Criteria for granting export authorisations
1. Decisions on applications for authorisations in respect of the export of goods listed in Annex IV shall be taken by the competent authorities, taking into account all relevant considerations, including in particular whether an application in respect of an essentially identical export has been dismissed by another Member State in the preceding three years and considerations about intended end-use and the risk of diversion.
2. The competent authority shall not grant any authorisation when there are reasonable grounds to believe that the goods listed in Annex IV might be used for capital punishment in a third country.
3. The rules in the second, third and fourth subparagraphs shall apply to the verification of the intended end-use and the risk of diversion.
If the manufacturer of goods listed in Section 1 of Annex IV requests an authorisation for exporting such products to a distributor, the competent authority shall make an assessment of the contractual arrangements made by the manufacturer and the distributor and of the measures that they are taking to ensure that the goods will not be used for capital punishment.
If an authorisation is requested for exporting goods listed in Section 1 of Annex IV to an end-user, the competent authority may, when assessing the risk of diversion, take into account the contractual arrangements that apply and the end-use statement signed by the end-user, if such a statement is provided. If no end-use statement is provided, it shall be up to the exporter to demonstrate who will be the end-user and what use will be made of the goods. If the exporter fails to provide sufficient information on the end-user and the end-use, the competent authority shall be deemed to have reasonable grounds to believe that the goods might be used for capital punishment.
The Commission, in cooperation with competent authorities of the Member States, may adopt best practice guidelines on the assessment of end-use and of the purpose for which technical assistance would be used.
4. In addition to the criteria set out in paragraph 1, when assessing an application for a global authorisation the competent authority shall take into consideration the application by the exporter of proportionate and adequate means and procedures to ensure compliance with the provisions and objectives of this Regulation and with the terms and conditions of the authorisation.
Prohibition of transit
A natural or legal person, entity or body, including a partnership, whether resident or established in a Member State or not, shall be prohibited from executing the transit of goods listed in Annex IV, if he, she or it knows that any part of a shipment of such goods is intended to be used for capital punishment in a third country.
Authorisation requirement for certain services
1. An authorisation shall be required for any supply, by a supplier of technical assistance or a broker, respectively, of one of the following services to any person, entity or body in a third country whether for consideration or not:
(a)
technical assistance related to goods listed in Annex IV, irrespective of the origin of such goods; and
(b)
brokering services related to goods listed in Annex IV, irrespective of the origin of such goods.
2. When deciding on applications for an authorisation for the supply of brokering services concerning goods listed in Annex IV Article 17 shall apply mutatis mutandis.
When deciding on applications for an authorisation for the supply of technical assistance related to goods listed in Annex IV, the criteria set out in Article 17 shall be taken into account to assess:
(a)
whether the technical assistance would be supplied to a person, entity or body that might use the goods to which the technical assistance relates for capital punishment; and
(b)
whether the technical assistance would be used to repair, develop, manufacture, test, maintain or assemble goods listed in Annex IV for, or supply technical assistance to, a person, entity or body that might use the goods to which the technical assistance relates for capital punishment.
3. Paragraph 1 shall not apply to the supply of technical assistance, if
(a)
the technical assistance consists of providing information that is in the public domain; or
(b)
the technical assistance is the minimum necessary for the installation, operation, maintenance or repair of those goods listed in Annex IV whose export has been authorised by a competent authority in accordance with this Regulation.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
