GUIDANCE ON EXPORT LICENSING CONTROLS

STRATEGIC MILITARY AND DUAL-USE ITEMS

Introduction
This page focuses on the applications for and licensing of, the export of military goods, dual-use goods and goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (hereafter collectively referred to as "strategic military and dual-use items"). It also highlights the controls on the exports of goods in relation to arms embargo, trade sanctions and other trade restrictions.

This general guide is intended to assist exporters and their agents in understanding the requirements of the laws concerned with the export licensing of strategic military and dual-use items in the Bailiwick of Guernsey. This document is intended as a general guide and has no force in law. Persons who think they may be affected by the provisions are advised to seek legal advice to ensure that they comply with the obligations of the relevant export legislation.

Strategic military and dual-use items related export restrictions are principally implemented in the Bailiwick under general export control legislation rather than by specific sanctions legislation (although there may be an overlap with Guernsey's specific sanctions legislation in cases where this includes certain import and export restrictions). The Export Control (Military, Security, and Related Matters) (Bailiwick of Guernsey) Order, 2010 is the principal legislation for these matters. The Committee for Home Affairs, through the Guernsey Border Agency, is the competent authority for export licensing matters under this legislation.

It is also important to note that the various orders and regulations giving effect in the Bailiwick to trade sanctions issued by the United Nations, UK Government, European Union as well as other sanctions, can impact upon exports from the Bailiwick: Sanctions are designed to affect the supply of goods, services, financial assistance etc. to certain countries, individuals and entities subject to such sanctions and other restrictive measures.

There are several reasons why governments aim to control the export of goods, depending on the nature and destinations of the proposed export. Exports are controlled for various reasons, these include:

• concerns about internal repression, regional instability or other human rights violations;
• concerns about the development of proliferation of weapons of mass destruction (WMD) - (Appendix 2 to this guidance provides further information regarding proliferation and proliferation financing);
• foreign policy and international treaty commitments including as a result of the imposition of UK, EU or United Nations trade sanctions or arms embargoes;
• national and collective security of the UK and Bailiwick and its allies.

Persons who have any concerns or suspicions about being asked to export goods are asked to contact the Guernsey Border Agency immediately on 01481 221431 or email customsandexcise@gcis.gov.gg.

The broad categories of goods which are likely to be controlled on export are:

• Most items that have been specially designed or modified for military use and their components
• Dual-Use items - those that can be used for civil or military purposes - which meet certain specified technical standards and some of their components
• Associated technology and software
• Goods that might be used for torture

Items which are controlled will need to be licensed before they are exported. Applications for export licences for goods exported from the Bailiwick should be made to the Guernsey Border Agency.

Whether or not an export licence is needed for the export of goods will be determined by numerous factors which will include:

• Nature of the goods due to be exported
• Destination concerned
• Ultimate End Use of the goods
• Licensability of trade activities

Breaches of export licensing controls and sanctions law, and the making of false declarations to the Guernsey Border Agency (and/or other relevant authorities) in connection with exports and licence applications, is an offence. Anyone with queries about how the contents of this guidance may affect them or their business, are able to contact the Customs & Excise department of the Guernsey Border Agency who can provide general advice on export licensing matters:

Types of strategic military and dual-use items

Military goods (including firearms)

Military goods include military, security and para-military goods, software and technology and arms, ammunition and related material as well as explosive-related goods and technology. The full list of military goods which are controlled under Bailiwick legislation can be found in Schedule 2 to UK's Export Control Order 2008 which is given effect in the Bailiwick through The Export Control (Military, Security, and Related Matters) (Bailiwick of Guernsey) Order, 2010.

A licence is required to export all military goods (including firearms) to any destination, including the UK, Jersey and Isle of Man unless a specific exemption is in force. Controls on military items (goods and technology) are currently implemented by Bailiwick wide legislation - The Export Control (Military, Security, and Related Matters) (Bailiwick of Guernsey) Order, 2010.

Certain restrictions also apply to the movement of Bailiwick controlled dual-use goods depending on their eventual destination. These goods are not necessarily specially designed or modified for military use. The full list of Bailiwick controlled dual-use goods which are controlled under Bailiwick legislation can be found in Schedule 3 to UK's Export Control Order 2008 which is given effect in the Bailiwick through The Export Control (Military, Security, and Related Matters) (Bailiwick of Guernsey) Order, 2010.

Please note, an export licence is required to remove military or dual-use goods out of the Bailiwick even for temporary purposes, e.g. to demonstrate them to potential customers or to display at a trade show or commemorative event.

"Technology" in relation to military goods

Technology is defined as specific information necessary for the development, production or use of goods. Information may be in such forms as blueprints, plans, diagrams, models, formulae, tables, engineering designs and specifications, manuals or instructions (written or recorded on media); or may be in the form of skills, training, working knowledge or providing consulting services.

Transfer of technology concerns both the electronic and non-electronic transfer of controlled goods. Examples of transfers include:

• electronic methods: email, fax, telephone, computer file transfer, video conferencing, electronic mail or any other electronic means;
• non-electronic methods: face-to-face communications.

The provision of technical assistance broadly means providing any type of technical support such as assembly, maintenance or repair to controlled goods.

Trade controls

A trade control licence may also be required before engaging in certain activities that involve:

• the supply or delivery of certain items from one country to another;
• the agreement to supply or deliver certain items from one country to another;
• any activity that will promote the supply or delivery of certain items from one country to another.

See section "Other Trade Controls and Restrictions" below for further details on trade controls.

Dual-use goods

The export of dual-use goods from the Bailiwick is controlled when such goods are exported to destinations outside of the British Islands or European Union. Dual use goods include physical goods, software, technology, documents and diagrams which can be used for both civil and military purposes. They can range from raw materials to components and complete systems, such as aluminium alloys, bearings, or lasers. They could also be items used in the production or development of military goods, such as machine tools, chemical manufacturing equipment and computers. The list of goods is extensive and covers some that may be considered 'everyday items.' The full list can be found in Annex I to the EU Dual-use Regulation which is given effect in the Bailiwick through The Export Control (Military, Security, and Related Matters) (Bailiwick of Guernsey) Order, 2010.

The categories of dual-use goods are as follows:

• Electronics
• Computers
• Telecommunications and "information security"
• Sensors and lasers
• Navigation and avionics
• Marine
• Aerospace and propulsion
• Nuclear materials, facilities and equipment
• Special materials and related equipment
• Materials processing

Goods that are listed as dual-use items will require an export authorisation if those goods are to be exported to any destination outside the British Islands or European Union.

An authorisation may also be required for the provision of brokering services of dual use items or for the export of dual-use items not listed in Annex I to the EU Dual-use Regulation if the items in question are or may be intended for certain military uses or in connection with development, production, etc. of chemical, biological or nuclear weapons. See section "Other Trade Controls and Restrictions" below for further details on trade controls.

It is important to note that dual-use General Export Authorisations issued by the United Kingdom do not extend to Guernsey. Therefore exporters will need to apply for an appropriate export licence for dual-use goods being exported from Guernsey even if the goods concerned would be covered by a General Export Authorisation if being exported from another jurisdiction.

Goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment

An export licence may be required in order to export goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment. Some of these items may also be prohibited for export. The categories of goods include:

• those which have no practical use other than for the purposes of capital punishment, torture and other cruel, inhuman or degrading treatment or punishment;
• those that have legitimate law enforcement applications but could be used for the purpose of torture or other cruel, inhuman or degrading treatment or punishment;
• those that could be used for the purpose of capital punishment.

The full list can be found in Annex II to Regulation (EU) 2019/125 which is given effect in the Bailiwick through The Export Control (Military, Security, and Related Matters) (Bailiwick of Guernsey) Order, 2010.

The provision of trafficking and brokering services and the supply of technical assistance in connection with these goods may also be controlled and/or prohibited. Persons involved in trafficking and brokering of such goods must ensure that they understand what trade controls may be in place for their specific activities.

Identifying Goods Subject to Export Control

The UK have a consolidated list of strategic military and dual-use items that require export authorisation from Great Britain and Northern Ireland. This UK consolidated list is compiled from 7 lists in various pieces of international legislation and is generally referred to as the UK Strategic Export Control Lists (hereafter referred to as the "Export Control Lists"). The main elements of the Export Control Lists are the UK Military List and the Dual-Use List. Guernsey legislation is structured to ensure that these listed goods are also generally controlled when exported from the Bailiwick. Therefore these the Export Control Lists can assist Bailiwick exporters in determining whether any products, software or technology that may be exported from the Bailiwick are controlled and therefore require an export authorisation.

If items are referenced on the Export Control Lists it is most likely that exporters will need to apply for an export licence from the Guernsey Border Agency.

The Export Control Lists can be found here: UK Consolidated List of Strategic Military and Dual-Use Items that Require Export Authorisation.

The Export Control Lists are extensive and therefore to assist with searching the lists the UK have provided exporters with a "Goods Checker Tool" which helps to establish if items are controlled and to identify the appropriate control entry ('rating') from the Export Control Lists. Again, as Guernsey legislation is structured to ensure that listed goods are also generally controlled when exported from the Bailiwick this facility may assist Bailiwick exporters in determining whether any products, software or technology that may be exported from the Bailiwick are controlled and therefore require an export authorisation. The "Goods Checker Tool" can be found here: Goods Checker Tool

It is important to note that Open General Export Licence's (OGEL's) issued by the United Kingdom do not extend to Guernsey, therefore Bailiwick exporters will need to apply for an appropriate export licence for controlled goods. This is important to note when using the Goods Checker Tool which may reference such OGEL's for certain goods.

Whilst these facilities are expected to greatly assist exporters in identifying items that may be subject to export controls, it remains the exporter's responsibility to check whether items require an export licence. If an export licence is required, applications should be made well in advance of shipment to ensure the appropriate export licence is in place before the shipment occurs to avoid potential export offences.

The Export Control Lists are periodically updated. Exporters should therefore be careful to ensure that they are aware of all recent updates. To keep updated with any changes to the amendments (and the EU Dual-Use Regulation), exporters are advised to subscribe to the Export Control Joint Unit's Notices to Exporters.

Note on the UK Global Tariff

Some exporters may be familiar with the UK Global Tariff and may have used the tariff tools to check certain export requirements when exporting goods. The UK Global Tariff is designed to give exporters (and importers) information needed to dispatch and acquire goods traded worldwide and the rates of duty payable. The Tariff can be used in completing customs declarations.

However, in relation to classifying or 'rating' goods for strategic export control purposes, the Tariff can only provide a broad indication of whether an export licence is required. For a clearer indication of whether goods might need a licence it is strongly advised that exporters consult the relevant legislation and the Export Control Lists.

Important note regarding Sanctions and End-use/'catch all'

Even if items are not listed on the Strategic Export Control Lists, exporters may still need an export licence or authorisation under End-Use Controls or trade sanctions and embargoes. See section "Other Trade Controls and Restrictions" below.

Persons concerned that any items or services, even those that aren't on the Strategic Export Control Lists, will be used for WMD or military end-use purposes are asked to contact the Guernsey Border Agency immediately, before any such goods are exported.

Other Trade Controls and Restrictions

Controls and restrictions are also imposed on the transfer of items from one overseas country to another by any Bailiwick individual or company even when the goods are not physically being exported from the Bailiwick. Controls apply to specific activities, including brokering, that involve certain controlled goods and/or embargoed destinations.

Trade controls & restrictions

The Bailiwick's legislation also imposes trade controls on trafficking and brokering of military goods from one overseas country to another. Trade controls apply to specific activities, including brokering, that involve certain controlled goods. A trade control licence is required for activities subject to trade controls in the Bailiwick. The trade control legislation imposes different restrictions to different categories of goods. These are contained in Part III of The Export Control (Military, Security, and Related Matters) (Bailiwick of Guernsey) Order, 2010.

Goods which are subject to trade controls are specified in category A, category B and category C, of Schedule 1 to UK's Export Control Order 2008 which is given effect in the Bailiwick through The Export Control (Military, Security, and Related Matters) (Bailiwick of Guernsey) Order, 2010.

An export authorisation may also be required for the provision of brokering services of dual-use items if the items in question are or may be intended for certain military uses or in connection with development, production, etc. of chemical, biological or nuclear weapons.

Persons involved in trafficking and brokering of goods which are ordinarily subject to physical export controls should ensure that they understand what trade controls may be in place for their specific activities.

End-use controls apply when exporting non-controlled items that are, or may be, intended for use with military equipment in an embargoed destination. This can include otherwise non-controlled goods if they are intended for incorporation into military equipment. The control also exists for the development, production or maintenance of such equipment, or for use in a plant for production of such equipment in an embargoed destination. Controls also apply when exporting non-controlled items that are intended for use as parts or components of military goods that have been 'illegally obtained', irrespective of their destination.

Items that are not listed on the Export Control Lists may still need a licence where goods are suspected, or the exporter has been informed, that the items might be used to make chemical, biological or nuclear weapons of mass destruction.

Exporters who are aware that a proposed export is or may be intended for the above end uses must inform the Guernsey Border Agency. The Guernsey Border Agency will decide whether an export licence is required.

Sanctions & arms embargoes

Items which are not listed on the Export Control Lists might still require an export authorisation if the items are being sent to a country subject to sanctions or an arms embargo. The extent of these depends on the destination and the measures imposed. Persons exporting to destinations subject to sanctions, embargoes or restrictions should ensure that they understand what is controlled. Sanctioned and embargoed destinations often have restrictions on brokering and services beyond those set out in the Strategic Export Control Lists. Further information on sanctions issues and information about the administration of Guernsey's sanctions regime can be found on the following GOV.GG webpages:

• https://www.gov.gg/sanctions
• https://www.gov.gg/sanctionsmeasures

How to apply for an Export Licence

All Bailiwick export and trade control licence applications should be completed in paper form using the Guernsey Border Agency application form "Application for Export Licence for Strategic Goods" - see Appendix 1 or Downloads.

When making an application, applicants must attach all necessary documentation, including technical specifications and End User Undertakings where appropriate.

Once the paperwork has been submitted to the Guernsey Border Agency the forms will be checked for all relevant information before being sent to the Department of International Trade in the UK to be assessed by the Export Control Joint Unit ("ECJU").

The ECJU will assess the application and advise the Guernsey Border Agency of the suitability of the application including a recommendation on whether an export licence should be issued. Guernsey Customs & Excise will consider this advice when making a decision on whether to issue an export licence and will then formally issue or refuse the export licence application.

Application process:

• Application Received
• Guernsey Customs check submitted information
• Application sent to the UK's DIT
• DIT's ECJU process application
• ECJU recommend approval or refusal of application
• Guernsey Customs formally issue or refuse export licence

Import note on UK Open Export Licences

It is important to note that Open Export Licences (also often referred to as "General Export Authorisation") issued by the United Kingdom do not extend to Guernsey, therefore Bailiwick exporters will need to apply for an appropriate individual export licence for controlled goods. This is important to note when considering UK issued guidance which may reference such OGEL's for certain goods.

Whilst no Open Export Licences are currently in force in Guernsey the Committee for Home Affairs is empowered to issue such licences in appropriate circumstances. Where exporters feel that an Open Export Licence would benefit their business activity they are encouraged to discuss this matter with Customs & Excise in the first instance, before making an application. Please note, Open Export Licences will generally only be available for less restricted exports to less restricted destinations.

Information Published by the Export Control Joint Unit

The following guidance has been issued by the UK's Department for International Trade and is therefore written for UK businesses and individuals. Whilst most of the content in relation to export controls will be relevant to businesses and individuals in Guernsey, some may not. Guernsey's export control legislation, in relation to strategic military and dual-use items, is generally structured to ensure that it mirrors that of the UK and follows a common foreign policy. UK Department for International Trade guidance may assist Bailiwick exporters and brokers in their understanding of export controls and related measures and help in determining whether any products, software or technology are controlled and therefore require an export licence or authorisation prior to being exported or otherwise handled from the Bailiwick. It is important to note that regardless of the content of any UK guidance, any export licence applications for goods or trade control licence applications for brokering services occurring in the Bailiwick, must be applied for to the Guernsey Border Agency.

Relevant UK Department for International Trade guidance, includes:

• Export Control Joint Unit Home Page
• Export controls: military goods, software and technology
• Export controls: dual-use items, software and technology, goods for torture and radioactive sources

Notices to exporters published by the Export Control Joint Unit (ECJU) contains certain information that may be relevant to Bailiwick exporters, this includes changes to the list of controlled goods. Read about these Notices to Exporters.

Exporters can also sign up to receive email alerts to notices to exporters.

Appendix 1: Application for Export Licence for Strategic Goods

Appendix 2 - Proliferation and Proliferation Financing

PROLIFERATION AND PROLIFERATION FINANCING

Proliferation is defined by the Financial Action Task Force (FATF) as the illegal manufacture, acquisition, development, export, trans-shipment, brokering, transport, transfer, stockpiling or use of nuclear, chemical, or biological weapons and their means of delivery and related materials.

Proliferation may involve:

• The acquisition, supply and use of entire manufactured systems of Weapons of Mass Destruction (WMD).
• The supply and sale of goods and services (including technology, software and expertise) that can be used in programmes involving the construction of WMD and/or their means of delivery.

A WMD programme involves a range of activities, including the construction and maintenance of infrastructure for the production of WMD and the procurement of goods and services, such as materials and machinery.

Proliferation can be undertaken by anyone, for example:

• States seeking to develop and/or enhance their own WMD capabilities.
• Individuals or entities seeking to profit from the development and sale of WMD.
• Terrorist groups that may seek to develop and/or acquire WMD for use in acts of terrorism.

Proliferation financing is defined by the FATF as the provision of funds or financial services used for the manufacture, acquisition, possession, development, export, trans-shipment, brokering, transport, transfer, stockpiling or use of nuclear, chemical, or biological weapons and their means of delivery and related materials (including both technologies and dual-use goods used for non-legitimate purposes), in contravention of national laws or, where applicable, international obligations.

There are three key financial elements of a WMD programme

• Programme fundraising: a proliferator raises funds to finance a WMD programme.
• Disguising the funds: a proliferator transfers these funds into the international financial system for trade purposes.
• Procurement of materials and technology: the proliferator or its agents uses those funds to pay for goods and services.

Proliferation financing can involve:

• Payment for goods and services that might be used, directly or indirectly, for proliferation.
• All forms of financial services provided in support of any part of the proliferation process. This might include:
  • Facilitating payments for proliferation-sensitive goods and services for illicit purposes by providing front companies, or by acting as representatives or "middlemen".
  • Providing trade finance or insurance services relating to the shipment of proliferation-sensitive goods and services for illicit purposes.

Preventing proliferation financing is an important part of combatting proliferation. It is essential to disrupt the financial flows available to proliferators and to obstruct and complicate the procurement of the illicit goods, services and technology needed for the development of WMD and their means of delivery.

The legal framework applicable in the Bailiwick broadly mirrors the equivalent legislation in the United Kingdom. In certain cases, Bailiwick law directly incorporates a legal provision in force in the UK by providing that it has effect in the Bailiwick. However, the Bailiwick legal regime is completely separate from, and operates independently of, the UK regime.

The following legal obligations in the Bailiwick of Guernsey are relevant to proliferation and proliferation financing:

• The criminal offences in Bailiwick law, which make it unlawful to engage in certain activities relating to proliferation and/or proliferation financing.
• The UK, United Nations and European Union sanctions regimes implemented in the Bailiwick which are relevant to proliferation and proliferation financing.
• Reporting obligations that require individuals and entities to report suspicions or knowledge of activities relating to proliferation and proliferation financing in the Bailiwick.
• The Bailiwick's export control regime, which seeks to prevent the acquisition and transfer of goods, services, technology and expertise that might be used by proliferators.
• International obligations relating to proliferation and proliferation financing.

For more information on Proliferation Financing please see the Guidance on Proliferation and Proliferation Financing issued by the States of Guernsey Policy and Resources Committee - https://gov.gg/wmd.

Persons who have any concerns or suspicions about being asked to move goods that are suspected to be used for proliferation or proliferation financing are asked to contact the Guernsey Border Agency on 01481 221431 or email customsandexcise@gcis.gov.gg.

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