Explanatory note

This Order implements Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community (“the Directive”). It amends the Export Control Order 2008 (“the 2008 Order”) to provide for licensing, certificates, enforcement and penalties in relation to activities within the scope of the Directive. It also incorporates changes made to the Wassenaar Arrangement control lists in 2010 and 2011. The Wassenaar Arrangement is an international non-proliferation regime.

This Order also makes miscellaneous amendments to the 2008 Order which do not relate to the implementation of the Directive or the Wassenaar Arrangement.

Paragraph 1 of the Schedule amends article 2 of the 2008 Order (interpretation) and in particular introduces a definition of “European military items”.

Paragraphs 1, 6, 9 and 12 make amendments to the 2008 Order as a consequence of amendments to Council Regulation 428/2009 (O.J. L134, 29.5.2009, p.1) setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items.

Paragraph 2 introduces a provision on Crown application. This states the existing position which is that the controls in the 2008 Order which relate to dual use items (articles 4, 6, 7 and 8) and torture equipment (article 9) apply to the Crown. It also states the existing position which is that the other provisions of the Order do not apply to the Crown.

Paragraph 3 adds propofol to the list of human and veterinary medicinal products that are prohibited for export to the United States of America where it is in a form suitable for injection or for preparation of an injection.

Paragraph 4 introduces a new article 14A to provide an exception allowing the temporary export of historic military vehicles where certain conditions are satisfied.

Paragraph 5 extends the exception relating to goods in transit so that it applies to goods in transit via a vehicle and in relation to activities within the scope of the Directive.

Paragraph 7 introduces a new article 28A to provide for the granting of certificates to recipients and sets out the basis on which applications for certificates are to be determined. The granting of a certificate allows the recipient to receive European military items under general licences granted by competent authorities in other member States.

Paragraph 8 amends article 29 so that the record keeping requirements also apply to persons acting under the authority of individual licences relating to the items listed in the Annex to the Directive.

Paragraph 10 introduces a new article 33A to provide for appeals against decisions relating to certificates.

Paragraph 11 amends article 37 to provide for a criminal offence relating to misleading applications for certificates.

Her Majesty’s Revenue and Customs will enforce the provisions of the Order.

Paragraph 13 introduces a new article 46 which requires the Secretary of State to review the operation and effect of those provisions which implement the Directive and to publish a report within five years after they come into force and within every five years after that. Following a review it will fall to the Secretary of State to consider whether the relevant provisions should remain as they are, be revoked or be amended. A further instrument would be needed to revoke the relevant provisions or to amend them.

Paragraph 14 corrects minor drafting errors in Part 2 of Schedule 1 to the 2008 Order which arose as a consequence of previous amendments to that Part.

Schedule 2 to the 2008 Order lists military goods, software and technology which are subject to export control. The content of this list derives primarily from the Wassenaar Arrangement. Paragraph 15 amends Schedule 2 to reflect changes made to the Wassenaar Arrangement control lists.

A transposition note and an impact assessment of the effect that the amendments made by paragraphs 5, 7, 8 and 10 of the Schedule to this instrument will have on the costs to business and the voluntary sector are available from the BIS website (www.bis.gov.uk). They are also annexed to the Explanatory Memorandum which is available alongside the instrument on the www.legislation.gov.uk website. Copies have also been placed in the Libraries of both Houses of Parliament.

In relation to the amendments made by the other paragraphs of the Schedule, a full regulatory impact assessment has not been produced as minimal or no impact on the private or voluntary sectors is foreseen.