Frequently Asked Questions
These FAQs address some of the more commonly arising situations, illustrates what is involved, and more importantly, what can be done, in practical terms, to get on the right road to achieving compliance with export controls. Because of the breadth of the control regime, it’s not possible to provide exhaustive guidance here. It is a subject where each situation has to be assessed individually, taking account of a wide variety of factors. Contact us for more information.
A visit from the Export Control Organisation's (ECO) Compliance Unit found some shortcomings. Do I have a problem?
Short term yes, longer term probably not – subject to what is done to put matters right. Much will depend on the circumstances but generally, provided anything you did was not deliberate or pre-meditated and a willingness to resolve things is demonstrated (to the satisfaction of the ECO), everything should work
How do I go about this?
In simple terms the usual starting point is accurately determining if the goods, technology or services being exported are subject to control. Then it is a case of ensuring appropriate licences are in place and if these are what are known as ‘open’ licences, administering them responsibly and in accordance with the conditions set out.
So what is controlled?
The UK controls are contained in a number of published documents. On the military side of things it is relatively more straightforward – virtually everything ‘specially designed or modified for military use’ being caught. Life becomes a bit less simple with what are commonly referred to as the ‘dual use’ controls. Here technical specifications are everything – the controls being written so as to catch only certain items (usually at the higher end of the technology spectrum); otherwise complete swathes of UK industry would be bogged down by the controls.
To this end, whilst the ECO will make an assessment against a licence application, as to whether or not something is controlled, by far the best placed to determine this is the exporter and or, originator of the items. Even if they are not immediately familiar with the controls, being pointed in the right direction (which we can do) gets them on the right track in many cases.
I am pretty sure I only have a few controlled exports; is all this really necessary?
Yes (because it is the law and applies equally irrespective of the volume of exports) but if this is the case it should be relatively easy to rectify things. If on the other hand it transpires you have a significant amount of controlled exports and have not been adequately licensing them and or, handling the subject in a haphazard way, you will be expected to take a more structured and responsible approach.
I don't have the time or resources to deal with all this
Like a lot of other things in business, it need not necessarily be as bad as it first seems. If for instance, your controlled exports are regularly to the same small number of consignees, depending upon on what they are and the countries concerned, it is often possible to achieve compliance with a minimum of fuss and cost.
I supply items to and or, do work for other UK entities which export the final product. Who is responsible for export control?
Do bear in mind though that, even if for example, you are supplying components to a UK company for incorporation, you may have direct contact with the overseas consignee or end user, perhaps over product specification or in a support capacity, in which case you could well be making controlled exports yourself.
What about items or intellectual property which do not belong to me?
Again, it whoever is making the export. A common misconception is that items sent to the UK and being returned are not caught by the controls. It is possible one of the OGELs (Open General Export Licences) could provide the necessary ‘cover’ but this does not of itself remove the need to identify the controlled nature of the export in the first place (and deal with it accordingly).
What are the implications for getting it wrong and or, ignoring the subject?
Apart from the custodial and financial penalties laid down in the legislation, by far the main threat is reputational – in a variety of different ways. If you do breach the controls and do little or nothing about it, the ability to use open licensing and in particular the concessionary but enormously beneficial Open Individual Export Licences, is going to be limited, if not prevented (by the ECO).
And within industry, in today’s world of corporate governance, a tarnished name is going to count against you, especially in a supply chain situation. An increasing number of primes and Tier One companies require suppliers not only to be compliant in the strict sense but also, fully conversant with the controls, able to readily determine what is controlled. In short, they don’t want to find a contract or order frustrated by the emergence of an export control problem; even if, as is often the case, it can be sorted out, there will be inevitable delays, which brings its own undesirable consequences, such as liquidated damages claims.
What are the End Use controls?
Also known as the ‘catch all’ controls, as the name suggests, they relate to items which could be controlled on account of usage. These controls fundamentally differ from the bulk of the controls (which catch items according to defined lists), with the main categories of end use covered being WMD (Weapons of Mass Destruction) and in some instances, components for military goods and uses. A common mistake, even by personnel in companies with extensive experience of export controls, is to mix up the end use controls with the ‘traditional’ ones. If nothing else, the ensuing confusion can result in delays in the business process.