Technical assistance for dual-use goods. Entered into force on September 9, 2021, Regulation 2021/812 of May 20, 2021 reformed Regulation (EC) 428/2009 establishing a community regime for the control of export, transfer and brokerage operations (1) and about transit (2) dual-use goods. Continuing, this regulation nevertheless extends its control to technical assistance operations now defined.
Raphael Barazza lawyer, Paris France
Indeed, according to its second recital, this regulation aims in particular to: “to ensure that, in the area of dual-use goods, the Union and its Member States take into consideration all relevant elements. » However, it is clear, as is often the case in law, that a definition that appears to be clearly defined legally opens up to practitioners a broader field of interpretation that is difficult to understand.
In this case, while the Lisbon Treaty (3) already made it clear that technical assistance falls within the competence of the Union without giving a definition, Regulation 2021/821 provides us with two important definitions:
9. « technical assistance» any technical support in connection with repair, development, manufacturing, assembly, testing, maintenance or any other technical service, which may take the form of instructions, advice, training, transmission of knowledge or operational qualifications or consultancy services, including electronically as well as by telephone or other form of assistance provided verbally;
10. « technical support provider»:
(a) any natural or legal person or partnership which provides technical assistance from the customs territory of the Union to the territory of a third country;
(b) any natural or legal person or partnership which resides or is established in a Member State which provides technical assistance within the territory of a third country;
(c) any natural or legal person or partnership which resides or is established in a Member State which provides technical assistance to a resident of a third country temporarily present in the customs territory of the Union;
The principle is therefore clearly the following: technical assistance is subject to authorization in the same way as the dual-use good to which it relates.
Each Member State may maintain or adopt additional national legislation imposing an authorization requirement for the provision of technical assistance where the provider of the assistance has reason to suspect that the items are intended for a prohibited end use.
Also, according to the definitions in Annex I of the aforementioned Regulation 2021/821, specific technical knowledge defined as technologies must take the form of “technical assistance” or “technical data”: technical assistance being illustrated in the notes by numerous examples which include instructions, training and practical knowledge, while “technical data” is described to include plans, diagrams and models.
Certain types of technical assistance are then exempt from control, that which:
(i) is supplied within or on the territory of certain listed countries or to residents of these countries,
(ii) takes the form of a transfer of information that is in the public domain or of fundamental scientific research, or,
(iii) constitutes the minimum necessary for the installation, operation, maintenance (verification) of items for which an export authorization has been issued.
In practice, it should be understood that technology transfer therefore encompasses both technology export and knowledge transfer; the determining factor for knowing whether a technical service requires authorization is not the export within the meaning of Article 2 (2) of Regulation 2021/821 but the provision of technical assistance which can be understood by Article 4 (catch-all clause).
Article 2 (10) of the Dual-Use Regulation also covers the third country as the place of execution (4) and the recipient of technical assistance subject to authorization, which immediately appears as new proof of the extra-territoriality of such measures and opens a wide window of application.
For illustration, the telephone call, from the EU, for the repair of a dual-use good (identified as such or not) in Senegal could clearly be compared to a provision of technical assistance subject to authorization. However, the exporter must still be aware that the good is listed in Annex 1 of the regulation or can in fact be covered by Article 4.
Thus, in practice, the question of the qualification of technical assistance – which suffers from the proliferation of existing knowledge and the means of its dissemination – refers to work which is based first and always on the classification of goods. and technologies.
The scope of application being all the wider as the reference to “deemed export (5)» of the American EAR regulations (6) is now covered by European law since technical assistance provided in a Member State to a resident of a third country who is there temporarily is also subject to authorization (7).
Only companies that have classified their commodities according to the EU regulation will be able to comply with the authorization requirements of export control legislation which may mean the need to adopt appropriate internal organizational measures (8).
As proof of the necessity of such classification, or its risk, we will retain the interpretative opinion issued by the European Commission (9) concluding that the verbal transfer of knowledge and the provision of training or consultation are activities specific to education or research and considering that the provision of higher education and the carrying out of applied research could fall under the concept of ” technical assistance” as defined in the Sanctions Regulations.
GET TO KNOW THE AUTHORS: Raphaël Barazza and Julien Nava
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1 Operators acting from the territory of the Union and responsible for the trading of goods between two countries outside the European Union.
2 Goods crossing the territory of the Union and having a final destination in a third country. 3 JO C 306, you 17.12.2007
3 JO C 306, you 17.12.2007
4 The location where the technical assistance result is achieved.
5 The delivery of controlled technology to a foreign person in the United States is “deemed” to be an export to the country or countries of which that person is a national.
6 Section 734.13 (b) de l’EAR.
7 Article 2, § 10 & 11, of the Regulation
8 Regulation 2021/821 has also taken care to define, to encourage them, internal compliance programs.
9 Opinion of the European Commission C(2019/5883) of 5.8.2019 “on a request for interpretation concerning the provision of higher education and the carrying out of applied research in the context of a ban on the provision of technological or technical assistance to a third country”. At the time of publication of this manual, the notice is available in English, French, German and Dutch.
