Which dual-use products require export-license?
Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast) provides that an authorization (license) shall be required for the export of dual-use items:
(i) listed in Annex I of 2021 Recast Regulation and 2022 Regulation; and/or
(ii) if the exporter has been informed by the competent authority that the items in question are or may be intended for a military end-use or for the development of certain weapons; and/or
(iii) if the items are cyber-surveillance items not listed in
Annex I and the exporter has been informed by the competent
authority that the items in question are or may be intended, in
their entirety or in part, for use in connection with internal
repression and/or the commission of serious violations of human
rights and international humanitarian law.
However, it is noted that under Cyprus law (the Law on the Import and Export of Controlled Items and the Conduct of Controlled Activities (L. 1(I)/2011)) 'export' may include intra-Community movement, re-export, transhipment and transit and includes the transmission of controlled items, where practicable, by software or other technology by telex, telephone, electronic mail or any other electronic means.
Describe the basis of legislation controlling the export of dual-use items in your jurisdiction
The basis of legislation controlling the export of dual-use items in Cyprus has been recently amended. Specifically, under Cyprus law, EU law prevails and hence, the new Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast) as well as the Regulation (EU) 2022/1 amending the 2021 Recast Regulation are the basis of legislation controlling the export of dual-use items in Cyprus.
Further, the Law on the Import and Export of Controlled Items and the Conduct of Controlled Activities (L. 1(I)/2011) and the newly passed Regulatory Administrative Act 528/2021 were implemented to secure the compliance of Cypriot export control regulations with Cyprus' international obligations under a number of international treaties and EU regulations. The regulated items under this law include, but are not limited to, military equipment and dual-use products.
The legal basis for enforcing import and export controls at the Cypriot border more generally is the Customs Code Law (L. 94(I)/2004) which provides for prohibitions and restrictions on the import and export of sensitive goods.
Which are the competent authorities responsible for legislating, enforcing and prosecuting export controls?
The Export Licensing Section of the Ministry of Energy, Commerce, Industry and Tourism is responsible, together with the Ministry of Foreign Affairs for the formulation and implementation of the policy for the regulation of exports of arms, military equipment and dual use items, in the framework of the commitment of the Government of the Republic of Cyprus to contribute effectively to the accomplishment and maintenance of international peace and security.
The Trade Service, one of the Departments of the Ministry of Energy and Commerce, is responsible for the regulation and issuing of import and export licences, which includes import and export licences for dual-use products.
Moreover, the Customs and Excise Department of the Ministry of Finance is responsible for enforcing export controls.
What is the process for obtaining an export authorisation?
The competent authority responsible for providing export authorizations for dual use goods, arms and military equipment in Cyprus is the Exports Licencing Section of the Ministry of Energy, Commerce, Industry and Tourism (the "Licencing Section").
In order to obtain an export authorisation, an exporter must submit to the Licencing Section an Application Form in writing, directed to the Minister of Energy, Commerce, Industry and Tourism ('the Minister').
In order for an Application Form to be considered complete, the exporter must describe in detail all the information required by the Application Form, and in addition the exporter must submit in writing the following documents:
i. Application, duly completed with all the required
information, signed and stamped by the applicant;
ii. Pro-forma Invoice;
iii. Sales contract or sales confirmation;
iv. End-User Certificate, issued by the end user, in which the end-user and the end use of the goods are stated; and
v. Formal Declaration (Statement) whereby the exporter agrees that the Police may provide the Licensing Section with information kept about the criminal record of the applicant.
What criteria does that agency apply in making its decision, and whom are the parties responsible for making the licensing decision?
The licencing decision is made by the Minister of Energy, Commerce, Industry and Tourism. The Minister issues an export authorisation for the intra-community transport of dual-use goods if the relevant provisions of the EU Dual-Use Regulation and its adopting Ministerial Orders are satisfied.
On consideration of the export licence application, the following factors are taken into account:
1) Cyprus' obligations and commitments under various
international export control regimes, international safety
conventions and international treaties;
2) Cyprus' obligations under sanctions imposed by the Security Council of the UN (e.g. UNSCR 1540/2004), the European Union and the European Union and the Organization for Security and Cooperation in Europe;
3) The legitimacy of the parties involved;
4) The human rights records of the recipient country;
5) The compatibility of the particular export of arms with the technical and financial ability of the buying country;
6) The national security of Cyprus and of other allied countries;
7) Considerations about intended end use of the dual-use products and the risk of diversion.
It should be noted that in making the licencing decision, the Minister of Energy, Commerce, Industry and Tourism may consult an Advisory Committee comprising of representatives from the Ministry of Foreign Affairs, the Ministry of Defence, the Ministry of Justice and Public Order, the Customs and Excise Department, and other departments that are able to provide technical assistance.
Are there any timeframes under Cyprus for the issuance of the license?
Neither the Law nor the Act 528/2021, determine any period of time within which the appropriate authority shall process the application and issue the requested authorisation or decision.
Further, the Act 528/2021, enables the appropriate authority in any application is under consideration, to convene an advisory committee composed of certain representatives (including and not limited to the Cyprus Intelligence Service) and seek their advice.
Hence, the examination process of an application and the timeframe within which the authorization is issued varies on a case-by-case basis.
What authorisations are available from the Competent Authority?
The Cyprus authorities may issue one of the four available types of authorizations:
(a) individual export authorisations;
(b) global export authorisations;
(c) national general export authorisations;
(d) Union general export authorisations for exports of certain items to certain destinations under specific conditions and requirements for use as set out in Sections A to H of Annex II.Such licences may be revoked or cancelled by the Minister with a notice in writing.
You can also read our guide on Export Controls for dual-use products
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.