Military End-Use Control
Some otherwise uncontrolled goods are at risk of being used as parts for, or to manufacture military equipment in an embargoed country.
Introduction
The Military End-Use Control is a ‘catch-all’ control. Even if the items which you intend to export are not listed on the current UK Military List, you might still require an export licence under this control.
The Military End-Use Control is detailed in the EU Dual-Use Regulation (otherwise known as Council Regulation (EC) No. 428/2009), which set up an EU regime for the control of exports of dual-use items and technology.
Under the Military End-Use Control, an exporter is usually ‘informed’ by the Export Control Organisation (ECO) that an export licence is required for either of two reasons as explained in this guide.
It is therefore in exporters’ interest to read this guidance carefully and in full.
Before exporting, you should refer to the legal provisions in force at the time. Where legal advice is required exporters should make their own arrangements.
Military End-Use Controls
There are two types of Military End-Use Controls:
- dual-use items that are - or may be - intended for use with military equipment in an embargoed destination
- dual-use items that may be intended for use as parts of military goods illegally obtained from the UK, irrespective of destination
The first applies in respect of dual-use items not otherwise subject to control where the exporter has been informed - see Article 4(2) of Council Regulation (EC) 428/2009 further on in this guide - that they are - or may be - intended for incorporation into military equipment, or for the development, production or maintenance of such equipment, or for use in a plant for production of such equipment in an embargoed destination.
The control applies in respect of a destination that is subject to an arms embargo which is one of the following:
- decided by a common position or joint action adopted by the European Council
- a decision of the Organisation for Security and Co-operation in Europe
- an arms embargo imposed by a binding resolution of the Security Council of the United Nations
The control applies to any exports involving an entity located in such destinations, including purchasers, consignees and end users.
This control applies when the embargoed destination is the ultimate destination of the equipment to be put to a military end use, not just the immediate destination of the dual-use items.
The countries that are currently subject to such arms embargoes are listed in the guide on current arms embargoes and other restrictions.
The second only applies in respect of dual-use items not otherwise subject to control where the exporter has been informed (see Article 4(3) of Council Regulation (EC) 428/2009 in this guide) that they are intended for use as parts or components of ‘illegally obtained’ (from the UK) military goods irrespective of destination.
If the exporter is aware - see Article 4(4) of Council Regulation (EC) 428/2009 in this guide - that the proposed export is or may be intended for any of the uses described above, they must inform the Export Control Organisation (ECO), which will decide whether they must apply for a licence and inform them accordingly.
References above to military equipment or military goods mean any items controlled under Part 1 of Schedule 2 to the Export Control Order 2008, otherwise known as the UK Military List (which forms part of the UK Strategic Export Control Lists).
In addition to the controls listed in the EC Regulation, the 2008 Order gives effect to certain provisions of the EC Regulation. Articles 5 and 7 of the 2008 Order in particular (see extracts from relevant Military End-Use Controls legislation in this guide) to control the export to a destination in another member state of any dual-use items not otherwise subject to control, where the provisions of Article 4 (2), (3) or (4) (in other words the controls referred to above) of the EC Regulation apply and it is known at the time of the export that the final destination is outside the European Community.
Read more about the Export Control Order 2008 and controls on dual-use goods(EU Dual-Use Regulation.
Weapons of mass destruction (WMD) end-use controls
Under Article 4 (1) of the EC Regulation these same provisions also apply to the WMD End-Use Control. See the guide on WMD End-Use Control.
Exporter responsibilities as a result of Military End-Use Controls
If you need an export licence as a result of the military end-use control, then the Export Control Organisation (ECO) will usually inform you by letter, fax, email or telephone.
As with all licence applications, exporters should apply via the ECO’s SPIRE licensing system.
In the light of the information you provide or any other information available, the ECO will consider whether a licence should be granted. A licence is likely to be refused, after detailed assessment, on the basis of the two risks outlined in this guide on Military End-Use Controls.
Further advice about the practicalities and issues surrounding these controls are available below in frequently asked questions.
Updates
To keep up to date with any export control notifications - including updates to current sanctions and embargoes - you should subscribe to the ECO’s Notices to Exporters.
Extracts from relevant Military End-Use Controls legislation
There are several pieces of legislation that affect the Military End-Use Controls.
Article 4(2) of Council Regulation (EC) 428/2009
“An authorisation shall also be required for the export of dual-use items not listed in Annex I 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 or a decision of the OSCE 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 the authorities referred to in paragraph one that the items in question are or may be intended, in their entirety or in part, for a military end-use. For the purposes of this paragraph, ‘Military End-Use’ shall mean:
- “incorporation into military items listed in the military list of member states”
- “use of production, test or analytical equipment and components therefore, for the development, production or maintenance of military items listed in the above mentioned list”
- “use of any unfinished products in a plant for the production of military items listed in the above mentioned list”
Article 4(3) of Council Regulation (EC) 428/2009
“An authorisation shall also be required for the export of dual-use items not listed in Annex I if the exporter has been informed by the authorities referred to in paragraph one that the items in question are or may be intended, in their entirety or in part, for use as parts or components of military items listed in the national military list that have been exported from the territory of that member state without authorisation or in violation of an authorisation prescribed by national legislation of that member state.”
Article 4(4) of Council Regulation (EC) 428/2009
“If an exporter is aware that the dual-use items which he proposes to export, not listed in Annex I, are intended, in their entirety or in part, for any of the uses referred to in paragraphs one, two and three, he must inform the authorities referred to in paragraph one, which will decide whether or not it is expedient to make the export concerned subject to authorisation.”
Article 5 of the Export Control Order 2008
This article applies where:
- a person (‘the relevant person’) knows: * that the final destination of UK controlled dual-use goods, software or technology is outside the customs territory * that no processing or working is to be performed on the goods, software or technology in question within the customs territory
- the goods, software or technology in question are of a kind that is specified in Schedule 3 as prohibited for a particular destination or destinations rather than any destination
Subject to articles 13, 14, 17, 18 and 26, the relevant person shall not:
- export the goods in question
- transfer the software or technology in question by electronic means to a destination within the customs territory
Article 7 of the Export Control Order 2008
This article applies where:
- a person (‘the relevant person’) knows:
- that the final destination of dual-use goods, software or technology is outside the customs territory
- that no processing or working is to be performed on the goods, software or technology in question within the customs territory
- the relevant person would only be permitted to export or transfer the goods, software or technology in question to a destination outside the customs territory to the extent authorised to do so under Article 3 (controls on listed goods) or 4 (end-use controls) of the dual-use regulation
- the goods, software or technology in question are not specified in Annex IV to the dual-use regulation
Subject to articles 17 and 26, the relevant person shall not:
- export the goods in question
- transfer the software or technology in question by electronic means to a destination within the customs territory
Frequently asked questions - Military End-Use Control
This section provides a list of questions asked at exporter seminars about the Military End-Use Controls.
How will I be informed that I require an export licence because of the Military End-Use Control?
Normally, you would be told by the Export Control Organisation (ECO) by telephone, email, fax or letter.
Can I challenge a decision to apply for the Military End-Use Control?
Yes. If you believe the assessment is wrong, you should ask for it to be reconsidered. Your reasons should be clearly supported.
If I have been informed that an export may be controlled under the Military End-Use Control, must I apply for a licence if I still intend to export?
Yes.
If I am aware that the export meets, or may meet, any of the above criteria, should I apply for a licence?
Under the Regulation you are required to inform the authorities so that they can decide whether to make the export subject to an authorisation (export licence). If they do, ECO will inform you accordingly.
How do I apply for a licence?
In the same way as for any export licence. See the guide on the export control licensing process and how to appeal.
All licence applications should be made via the SPIRE licensing system. You can apply for an export licence using SPIRE.
If the ECO informs me that no licence is required, does that advice apply to all exports of those items to that destination?
No, the ECO’s advice would apply to that export only.
What happens after I apply for a licence?
The ECO will process the licence application in the usual way. It will be checked to ensure it has been completed fully and correctly and that the necessary technical specifications and documentation on End-Use and end-user have been supplied. The ECO and their advisers will then consider the application and, because you would not have applied for a licence unless you had been informed or were aware of the possible or intended Military End-Use of the export in question, they will give it particular scrutiny. The ECO will consider your licence application in the light of the information you provide and any other information available to them.
Am I likely to get a licence?
A licence is likely to be refused if - after detailed assessment - there is judged to be a risk that either the proposed export of dual use items not otherwise subject to control:
- is or may be intended, in its entirety or in part, for incorporation into military items listed in the military list of the EU member states, for its development, production or maintenance, or for use in a plant for producing it, and the destination is subject to an arms embargo decided by a common position or joint action adopted by the Council; a decision of the Organisation for Security and Co-operation in Europe (OSCE); or an arms embargo imposed by a binding resolution of the Security Council of the United Nations
- is intended for use as parts or components of military items listed in the military list of the EU member state that have been exported from that member state without authorisation, whatever the destination
But what if, after all this, the items are stopped at the port?
HMRC have responsibility for the enforcement of export controls and may wish to check whether any items that are to be exported require a licence. If you applied for a licence but were advised that no licence was required, you must inform HMRC. You should quote your ECO or licence application reference number or, include with your export documentation a copy of the letter stating that the items do not appear to require a licence. If HMRC still believe that there may be grounds for suspicion, they will seek advice from the ECO. If the ECO find that there are sufficient concerns about the destination or End-Use, appropriate action will be taken, depending on the circumstances. This might include informing you that you should apply for a licence under the Military End-Use Control.
So, for example, if I am exporting civil vehicle parts to Pakistan which will be incorporated into something military, which will then be supplied to Uzbekistan (a country embargoed by the EU, but not by Pakistan), will I need a UK export licence?
Yes. If the immediate destination of your goods wishes to supply a destination subject to a UK-observed embargo that is a matter for them. If you are aware or are informed, however, that your goods are intended to ultimately be supplied as part of an item described in the UK Military List to a destination subject to an embargo observed by the UK you would require a UK export licence.
What if I am uncertain about how the law applies in a particular case?
If in doubt, seek expert technical and legal advice.
Who can I contact in the ECO about this subject?
If you have any questions about this, or wish to make any enquiry regarding the export of strategic goods, you can contact the BIS ECO Helpline on 020 7215 4594 with your questions.
Further information
BIS ECO Helpline
020 7215 4594
Subscribe to the Export Control Organisation’s Notices to Exporters