A German research institute wants to export parts with boron compounds and boron coatings to New Zealand. 

Parts containing boron compounds and boron coatings are controlled by number 1C225 of Annex I to the EU Dual-Use Regulation. Their export is thus subject to authorisation pursuant to Art. 3 para. 1 of the EU Dual-Use Regulation.
For exports, a procedural facilitation in the form of a General Export Authorisation (GEA) may apply. In particular, GEA EU001 can be considered, which facilitates exports to the following countries outside the EU (known as EU001 countries): Australia, Japan, Canada, New Zealand, Norway, Switzerland (including Liechtenstein), the United Kingdom, and the United States.

A scientist plans to travel by plane to a third country. In his hand luggage, he wants to take a prototype covered by Annex I of the EU Dual-Use Regulation. 

Variants:

a.) The item remains in the third country.

b.) The scientist takes the prototype back to Germany with him on his return journey.

c.) The prototype is not covered by any control list.

Re a.) The export is subject to authorisation pursuant to Art. 3 para. 1 EU Dual-Use Regulation. The manner in which the border crossing relevant for the export takes place is irrelevant for the existence of the authorisation requirement. The export can therefore also take place by being carried on the plane. Whether other security considerations prevent the prototype from being carried in hand luggage is not a question of foreign trade law.
 

Re b.) In this case, too, there is an export requiring authorisation pursuant to Art. 3 para. 1 EU Dual-Use Regulation. The fact that the export is only temporary does not affect the authorisation requirement. However, the temporary
nature of the export may have an impact on the project’s eligibility for authorisation.

Re c.) The export of an item may be subject to authorisation even if it is not covered by the relevant list of items. This is because an authorisation requirement can also follow from the so-called catch-all provisions. These can be found, among others, in Art. 4 of the EU Dual-Use Regulation and Section 9 AWV. According to these provisions, the export is subject to authorisation if the non-listed items to be exported are or may be intended, in their entirety or in part, for use in connection with NBC weapons or missiles suitable for this purpose (Art. 4 para. 1 lit. a of the EU Dual-Use Regulation), a military end-use in the country of arms embargo (Art. 4 para. 1 lit. b EU Dual-Use Regulation), or civilian nuclear facilities in Algeria, Iraq, Iran, Israel, Jordan, Libya, North Korea, Pakistan or Syria (Section 9 AWV).

A researcher flies to a third country and logs on to the intranet of his research institution with his laptop. The researcher has the option of accessing and, if necessary, working with technical documents from the research institution in Germany that require authorisation.

In this case, several facts regarding the permit requirements may be taken into account. The laptop, smartphone or USB stick may contain technology or software that requires authorisation. In this case, taking along the laptop and the technology or software stored on it already constitutes an export subject to authorisation. 

Furthermore, an export in the form of “making available” the technology or software may be applicable, e.g. if the laptop can be used to access technology requiring authorisation, which is stored in the internal research network. Here, the possibility of accessing the technology is already enough. This means that there is an authorisation requirement even if the researcher does not access the technology subject to authorisation from abroad, but he has the possibility to do so.

A research vessel carrying listed dual-use items sets sail from the port of Hamburg and leaves the territorial waters, which extends over 12 nautical miles in Germany.
Variants:
a) The research vessel returns to the port of Hamburg without calling at any other port.
b) On its voyage, the research vessel calls at the port of a third country and then returns to the port of Hamburg.
 

If dual-use items are carried on a research vessel, an export is deemed to have taken place when the ship leaves the coastal area belonging to the territorial waters1 – regardless of whether it calls at the port of a third country. For an export to occur, it is sufficient that the customs territory of the EU has been left. It is not necessary for the items to cross the border to the national territory of a third country.

With regard to the individual variants, the following therefore applies:
Re a. and b.) Leaving the territorial waters of the state constitutes an export subject to authorisation pursuant to Art. 3 para. 1 EU Dual-Use Regulation.

A research institute wishes to send a satellite covered by number 9A004b of Annex I to the EU Dual-Use Regulation to a consignee in the USA for launching the satellite into Earth orbit from the Cape Canaveral Space Force Station (CCSFS). The signals from the satellite are then received by the research institute in Germany.

This is an export to the USA requiring authorisation pursuant to Art. 3 para. 1 EU Dual-Use Regulation. This also applies if the end-user of the satellite is an institution in Germany. The research institute can use the EU General Export Authorisation No. EU001 for the export.

A researcher from Germany is collaborating with a researcher from India to develop a new cultivation method for the Nipah virus. The German researcher sends his research results to the Indian researcher by email. 

Human and animal pathogens, such as Nipah virus, may be covered by number 1C351 of Annex I of the EU Dual-Use Regulation. Technology under the General Technology Note for the development or production of equipment, materials or substances specified in 1C351 fall within number 1E001 of Annex I to the EU Dual-Use Regulation. 

Hereafter: If the research results of the German researcher contain findings that fall under No. 1E001 of Annex I of the EU Dual-Use Regulation and if these are not already in the public domain or basic scientific research, the German researcher needs to apply for an authorisation to send the email to the researcher in India in accordance with Art. 3 para.1 of the EU Dual-Use Regulation. This is because the transmission of the email constitutes a border crossing into India.

Domestic research companies A and B, both established in the EU, pool their resources for a research project of research company C in a third country. In the course of the project, research company A asks research company B to send one of B's measuring instruments to the third country. The measuring instrument is listed in Annex I to the EU Dual-Use Regulation.

Variants:

1. Research company A and B conclude a contract with C in which they jointly commit to the research project. A separate contract between A and B stipulates that A has the lead, which C is aware of.
2. Research company A concludes the contract for the research project with C and is the sole contractual partner of C. In order to fulfil the contract, A involves research company B (effectively as a subcontractor).
3. Research companies A and B each have contracts with C and take over the research project internally as equal partners. In the contract between B and C, B has undertaken to provide the measuring instrument.
    

The question arises as to whether A or B must apply for export authorisation. This depends on who is the exporter in the variants. This is largely determined by who is the dominant party in the project.
 

Re 1.) Although there is a contract between research company A and research company B with C, and B ships the measuring instrument, A has the lead, and so A controls the export transaction and is therefore the exporter.
Practice Tip: Since the exporter status is not at the disposal of the parties involved and internal agreements can therefore not influence the assessment of the exporter status, it is recommended to clearly regulate the responsibilities in the external relationship.

Re 2.) In this variant, A has the sole contractual relationship with C and B acts on A's instructions, effectively as a subcontractor. A is the exporter.
Re 3.) In this case, B has its own contract with C, has ultimate responsibility for the export and thus controls the export transaction. A does not have a lead. B is the exporter.

A professor publishes a research report. This can also be purchased in third countries after prior registration, which is open to anyone. In addition to general remarks, the report contains essential (necessary) technology for the development or production of dual-use items and thus falls under a list number of Annex I of the EU Dual-Use Regulation.

Variants:
a) The report containing listed technology is sent to a co-author or colleague in South Africa for review and comment before publication.
b) The professor would like to publish the research report in an American journal. The research report will also be accessible outside the USA after publication.
c) The professor sends the report to a publisher in Germany. The latter publishes the report worldwide.
d) Although the report contains technology, that technology is not necessary for the development or production of dual-use items and thus does not fall under any list number of Annex I of the EU Dual-Use Regulation.

The publication of listed technology constitutes an export or intra EU-transfer if the publication is also available abroad. Accordingly, an export or intra EU-transfer may also occur if the publication is by a German publisher. The decisive factor is whether the publication is also available abroad. If the publication is not available abroad, there is no export or intra EU-transfer subject to authorisation. 

Hereafter: The publication of the research report constitutes an export subject to authorisation. Note: The application for an export authorisation must be submitted by the research institution or university employing the professor if the research report is to be published as part of the professor's professional activities.
 

Re a) If an article or a book containing controlled information (technology) is sent to a co-author or a colleague abroad for review and comment prior to publication, this also constitutes an export or transfer requiring authorisation according to the principles outlined above.

Re b) The EU General Export Authorisation No. EU001 cannot be used for export to the USA, as the professor knows that the research report will not remain in the country (USA) mentioned in EU001 to which it has been exported. Rather, the professor knows that the American publisher will make the research report available to a readership outside the USA. The professor must apply for an individual export authorisation. In principle, when working with publishers as part of the internal risk analysis, it is advisable as a scientist or research institution to obtain information on the countries in which the publisher will publish the research results that contain controlled dual-use technology.

Re c) It is questionable whether the exporter status belongs to the professor or her research institution or to the publisher. This always depends on the circumstances of the individual case. 

If the publisher has committed itself to the professor to publish the research report worldwide and publishes the contents of the report unfiltered, it must be assumed that the professor is the exporter. The publisher would have a position comparable to that of a forwarding agent, so that the professor would have to submit the export application. The publisher takes over the actual act of publication (“crossing the border”) for the professor. However, it is she alone who decides on the export as such, as she alone decides to publish her research results via a publisher and thus to let the controlled technology out of her hands. 

However, if the publisher independently reviews the content of the research report once again and, following this review, decides on the publication as such or has reserved the right to such a review and decision, this would speak in favour of the publisher having the status of an exporter. This would also be assumed if the publisher had influence on the amendment or omission of certain parts of the report.

The decisive factor is therefore who is responsible for the decision to publish, i.e. who bears responsibility for the publication in the internal relationship between the publisher and the author.

Re d) Since the technology is not listed, an end-use-related authorisation requirement within the meaning of the Catch-all provisions comes into question. In the case of application of Art. 4 para 1 lit. b EU Dual-Use Regulation, this requires the exporter's positive knowledge of a military end-use of the technology contained in the publication in an arms embargoed country. Even if worldwide publication by the exporter is suspected or considered likely, there is still no “positive knowledge” of use in an arms embargo country. As a rule, the professor (exporter) will not have any indications of a possible military end-use (exception e.g. publication in military journals, publication on a military item, the content of the technology relates exclusively to a military end-use). 

As a general rule, when working with publishers and sharing publications that contain controlled dual-use technology, scientists should find out in which countries the publisher will be publishing the publication.

The EU is initiating a programme to create a globally accessible database of scientific data from EU-funded research institutions. Scientists from a German institute would like to put their data into this database.

Placing the data in the database constitutes an export subject to authorisation if the data is listed in one of the relevant lists of items and is neither already in the public domain nor part of basic scientific research. The fact that the database is based on an EU programme is irrelevant for the existence of the authorisation requirement.

a) A post-doctoral researcher from Pakistan would like to conduct a research project on radar systems at a German university.

Variants:
b) He is an Indian student.
c) An Iranian citizen with permanent residence in Australia would like to conduct research for his or her doctor thesis in the research field of valves and pumps at an institute in Germany. There are no indications for a sensitive end-use after the end of his or her research stay in Germany. He will stay in Germany for one year and has a visa from the German Embassy in Canberra.

Re a) This could be technical assistance requiring licence pursuant to Art. 8 para. 2 EU Dual-Use Regulation, Section 51 (1) AWV. The researcher is a foreigner who is not resident in an EU Member State or EU001 country (Art. 8 para. 3 EU Dual-Use Regulation, Section 51 (1) No. 2 AWV) and is temporarily present in the customs territory of the European Union. Accordingly, BAFA must be contacted if the researcher comes into contact with technology that can also be used, for example, for missiles of NBC weapons.

Re b) The information provided to a student will usually not be of the same quality as the information provided to a post-doctoral researcher. In the current constellation, it must therefore be carefully examined whether the information with which the student comes into contact is not in the public domain. If this is the case, no licensing is required (Art. 8 para. 3 lit. b Var. 1 EU Dual-Use Regulation, Section 51 (4) No. 1 AWV).

Re c) Based on Regulation (EU) No. 267/2012 (Iran Embargo Regulation) and the general provisions in Art. 8 EU Dual-Use Regulation, Sections 49 et seq. AWV, it must be checked whether technical assistance is prohibited or subject to authorisation.
 

Iran Embargo Regulation 

In a first step, the prohibitions and authorisation requirements of the Iran Embargo Regulation must be examined. The prohibitions and authorisation requirements of the Iran Embargo Regulation require that the technical assistance (technical support) is provided to an Iranian person or for use in Iran. 

The doctoral student is not an Iranian person within the meaning of the Iran Embargo Regulation. A natural person is to be viewed as an Iranian person if he or she has his or her place of residence or habitual abode in Iran (Art. 1 lit. o) of the Regulation). These requirements are not satisfied by the doctoral student who resides in Australia. 

The condition for use in Iran could, for example, be met affirmed if the doctoral student intends to return to Iran in the near future; however, there are no indications of this in the present case. Technical assistance which is prohibited or subject to authorisation under the Iran Embargo Regulation is therefore not applicable.

Furthermore, there is no technical assistance subject to authorisation pursuant to Art. 8 in conjunction with Art. 2 No. 10 lit. c EU Dual-Use Regulation, Sections 49 AWV.

Since the doctoral student is conducting research at an institute in Germany, only the authorisation requirements set out in Art. 8 EU Dual-Use Regulation, Sections 51, 52 AWV may apply. However, an authorisation requirement according to these provisions is not applicable due to the lack of a context of end-use. With respect to Art. 8 of the EU Dual-Use Regulation and Section 51 AWV, it should also be noted that the doctoral student is not to be assigned to the group of addressees covered by Art. 8 of the EU Dual-Use Regulation and Section 51 AWV:

• Art. 8 in conjunction with Art. 2 No. 10 lit. c EU Dual-Use Regulation states that the addressee of the technical assistance is a person resident in a third country who is temporarily present in the customs territory of the European Union, with the exception of such persons who are resident in an EU001 country (Art. 8 (3) lit. a Var. 3 EU Dual-Use Regulation). These requirements are not met by the doctoral student who is resident in Australia, i.e. in an EU001 country.
• Section 51(1) AWV requires that the technical assistance is provided to a foreigner who is neither resident in an EU Member State nor in an EU001 country. These requirements are not met by the doctoral student who is resident in an EU001 country.
• Section 51(2) AWV only applies if the technical assistance is provided to a foreigner resident in an arms embargo country. This is also not the case with the doctoral student. Although he or she is a citizen of an arms embargo country (Iran), he or she is not a resident of that country. The doctoral student is resident in Australia.

a) You are planning to conduct a study in the field of brain research in connection with a foreign university. Research funds are available in this regard. You would like to leave the research funds to your partner university abroad to pay for the equipment or staff you need. Your check shows that the intended partner university is listed in Annex IX of Regulation (EU) 267/2012 (Iran Embargo Regulation).

Variant:

b) Instead of paying research money, you give high-speed cameras to the listed university. This is intended to generate income that the partner university can use to independently finance the research project.
 

Re a) Art. 23 para. III of the Iran Embargo Regulation stipulates that no funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities or bodies listed in Annex VIII and IX. Accordingly, the payment of research funds is precluded by the prohibition on the provision of funds.

Re b) In addition to the provision of funds, Art. 23 para.III of the Iran Embargo Regulation prohibits the provision of economic resources. The term economic resource refers to assets of any kind that can be used to generate funds, goods or services. Thus, the transfer of the high-speed cameras instead of the transfer of funds is also prohibited. The purpose of the supplementary prohibition on making economic resources available (in addition to funds) is to prevent economic resources from being used as a parallel or substitute currency.

You supply a listed chemical to an unlisted university that wants to test the properties when mixed with other chemicals. The university works closely with a listed institute in this regard, as it has a specially equipped laboratory for this purpose. You are aware that in this context (part of) the listed chemicals are passed on to the listed institute. The supply to the unlisted university thus constitutes a prohibited indirect supply.

The export to the unlisted university therefore constitutes prohibited indirect provision. Based on your knowledge of this, the export fulfills the criminal offense of intent.  

If you have no knowledge of a planned transfer by the partner university or could not reasonably have known about it (e.g., through publicly available information), the delivery to the partner university is not subject to permitting requirements. 

B is an Indian citizen and has been residing primarily in Germany since 2015 (except for business trips, vacations, and visits to his home country) and has a residence permit based on previous employment. B initially studied in Germany and is now applying for a job at a university institute where he will have access to listed items.

It is to be assumed that B has his domicile and his habitual residence in the sense of a centre of life in Germany. If his residence permit is not limited to 5 years, B would be considered a national pursuant to Section 2 para. 5 in conjunction with para. 15 AWG. Section 51 AWV therefore does not apply.