Intra-Community Transfer Directive 2009/43/EC
EU legislation implemented in the Export Control Order 2008 concerning the transfer or export of military goods across the EU
A ‘Directive’ is EU legislation that all EU Member States are required to implement directly into national law. Member State countries (including the UK) have to adapt their laws to meet the legislative goals and are free to decide how to do so. The aim of Directives is to bring different national laws across the EU into line with each other. The measures are used in many issues relating to the operation of a single market in trade between all EU countries including in relation to export controls.
The EU’s role in the defence sector is encapsulated in Directive 2009/43/EC of 6 May 2009 simplifying terms and conditions of defence-related products across the EU.
This guide briefly outlines the Directive’s aims and its main elements including how to register to become a ‘certified company’ when receiving military goods from across the EU.This guidance only concerns the export of military goods within the EU. Dual-use goods are controlled under separate EU legislation - the EU Dual-Use Regulation (Council Regulation (EC) No 428/2009). See the guide on controls on dual-use goods (EU Dual-Use Regulation).
What is the ICT Directive?
The EU published Directive 2009/43/EC on 6 May 2009. The Directive was implemented into UK legislation on 10 August 2012 via an amendment to the Export Control Order 2008, which is the UK’s main export control legislation. The amendment is published as the Export Control (Amendment) (No 2) Order 2012 (SI 2012/1910).
The Directive is aimed at creating a more competitive market for defence equipment across the EU. The European defence market has traditionally been very fragmented due to differing national approaches. A common issue, for instance, is that some Member States do not distinguish between exports to third countries (ie outside the EU) and transfers between Member States. The Directive aims to address these obstacles. It concerns simplifying the terms and conditions of transfers of defence-related products within the EU.
Brief overview about the Directive
The Directive specifically concerns exports of military goods as listed on the EU Common Military List. In the UK this is published as part of the UK Strategic Export Control Lists.
The Directive is based upon the concept of a three-tier licensing system of military goods comprising - general transfer, global transfer and individual transfer licences.
Impact on UK system of export licensing
From a UK perspective, the Directive does not change the basic nature of licensing. The UK’s export licensing authority, the Export Control Organisation (ECO) already operates a similar three-tier licence categorisation system - comprising Open General Export Licences (OGELs), Open Individual Export Licences (OIELs) and Standard Individual Export Licences (SIELs) - which map to the new tiered structure introduced by the EU.
However, it does impact in the following main ways:
- introduction of new voluntary ‘certification’ process for companies who wish to receive military goods under certified licences published by other EU Member States.
- publication of a new OGEL (Certified Companies) to permit the export of specified items to specific listed certified companies. The licence allows the certified companies in Schedule 2 to use the items received under this licence for the purpose of incorporation in their own production of final defence equipment.
- validity period for OIELs will be limited to three years.
For further details read Notice to Exporters 2012/37 published on the BIS website (DOC, 933K).
Other changes include:
- introduction of a new defined term (‘European military items’) which is used to limit the amendments made to the 2008 Order to those items within the scope of the Directive (ie the Directive only applies to military goods listed on the EU Common Military List).
- introduction of an exception relating to goods in transit which is extended so that it applies to goods in transit via a vehicle and in relation to activities within the scope of the Directive.
- record keeping requirements are extended to individual licences relating to those items within the scope of the Directive.
- introduction of range of new penalties. This includes a criminal offence to supply misleading information in support of applications for certification.
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Published: 19 September 2012