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CUSTOMS EXPERTISES Export control
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Albert Castel, expert in industrial products controlled by the customs administration, offers to industrialists concerned with dual-use goods ("BDU" in France and "ECCN" in the United States) to indicate whether an industrial product is subject to export control or not: This French expert can certify that a commodity is free to export if it finds that its characteristics do not correspond to those of one of the European dual-use goods list, and the US Commerce Control List (CCL).
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History of export control |
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The "cold war" between the West and the communist countries, begun at the end of the war by the problem of the occupation of Germany, has been exacerbated by very fast technological espionage action by the world Soviet. Early findings of illicit transfers of Western technology occurred in 1949 after the development of nuclear weapons in the former Soviet Union. This was entirely copied from the American Nagasaki bomb by communist spy networks of action which included the Rosenbergs, convicted in 1950 and executed in the electric chair in 1953. In the course of 50 years, from the first tests of thermonuclear weapons by the US, the former Soviet Union achieved equivalent tests of super-powerful bombs that clearly resulted from illicit transfer of US technology by the networks Russian espionage. Later, in the 70s and 80s, several countries have managed the development of nuclear, chemical and biological weapons and their means of delivery by obtaining the civil use equipment and technology in international trade. These events were behind the creation of several international bodies with a view to implementing controls on dual-use (civil and military) to fight against the proliferation of weapons of mass destruction.
The former COCOM From the beginning of the "cold war", the US has engaged in bilateral talks with France, Italy, the United Kingdom, the Netherlands, Belgium and Luxembourg to create an informal advisory group made up of government representatives to to prevent the circumvention of strategic materials to the countries of the Soviet bloc. In 1950, by adding a permanent secretariat, the advisory group has evolved Coordinating Committee for the Control of multilateral trade (English acronym COCOM) ; which subsequently joined, Canada, Denmark, Germany, Japan, Australia, Spain, Greece, Australia, Portugal and Turkey. Four of the six founding countries of COCOM shared the key roles, namely: the Italian presidency, the British staff, the US headquarters (US Embassy in Paris), meetings exclusively in France, and French / English bilingualism. In 1982, following the Farewell (see below), the advisory group policy guidance COCOM was replaced by a high-level meeting that this intergovernmental body reactivated and has organized several structures real effectiveness: the Executive Committee, the regular committee and its various formations, subcommittees, working groups and ad hoc groups. All decisions of the COCOM followed the procedures established by the upper structures and were taken unanimously. Many high-level meetings were held in the years 80 to increase the fight against the transfer of technology to countries in the east and in the early 90s to accommodate the rapid evolution of technology and to end the embargo following the fall of the Berlin Wall. The objective of the COCOM was to create three lists of strategic goods (nuclear list, military list and list of dual-use goods) and to deny or allow exports to countries of the "Soviet bloc" and China of these materials and sensitive technologies. These exports were proposed by member states following license applications from their industrial, but they were often refused after unfavorable opinions of governments or their intelligence services. The embargo is due to the action of COCOM allowed democratic states to maintain a military technology ahead of the totalitarian states, but the lead was always caught by following many diversions final destination. COCOM was dissolved in 1994 following a last high-level meeting under the Dutch Presidency, which, noting the evolution of the international situation and the globalization of techologiques progress, decided to convert it into a "new forum",which is became, two years later, the Wassenaar Arrangement.
The Wassenaar Arrangement (WA) The Wassenaar Arrangement (WA acronym), its full name the Wassenaar Arrangement on export controls for conventional arms and dual-use goods and technologies, is a multilateral export control regime set up by forty States to coordinate their policies on exports of conventional weapons and dual-use goods and technologies. It was established May 12, 1996 in Wassenaar, the Netherlands, and succeeds the COCOM. It incorporates most of the countries of the former Soviet bloc and gathers 42 states. The main document is an instruction document, the Purposes, Guidelines and Procedures, Including the Initial Elements,which describes the goals, procedures, shareholdings and administrations of the treaty. A secretariat is based in Vienna, where meetings are held, usually once a year in December. Thereunder, the only obligation is to notify the transfer of arms.The decision to transfer only returned to the seller. The Wassenaar Arrangement publishes several checklists:
The Zangger Committee and the Nuclear Suppliers Group (NSG) Parallel to the COCOM, other informal groups fighting against illegal transfer of highly sensitive equipment were formed to prevent the spread of nuclear weapons technology, but they remained independent with respect to the COCOM whose sole purpose was to maintain qualitative restrictions against "Soviet bloc" and China. The Zangger Committee (named after its first president the Swiss Claude Zangger) is a multilateral export control regime which was formed in 1971 by exporting States and producers of nuclear goods and technology, following the entry into force of the Treaty of Nuclear Non-Proliferation Treaty (NPT. The Committee's objective, which still exists, is to ensure that nuclear technology exported to non-nuclear-weapon States that have not joined the NPT, are not diverted for military purposes. The checklist is limited to a "Trigger List 'on fissile materials and related production equipment. The Zangger Committee ensures civilian use of guarantees provided products and technologies. Thus he authorized the export to India of uranium and conversion and enrichment facilities subject to exclusively civilian use, while India had not signed the NPT and proceeded to a nuclear industry for military purposes from thorium (for lack of uranium). It is precisely because the Committee was focusing only on those States that are not parties to the NPT that producers and exporters of nuclear technology states decided in 1974, following the nuclear test by India, to create the Nuclear Suppliers Group (NSG acronym) to harmonize their export policies in this matièreet prevent nuclear proliferation. First, nuclear Suppliers Group was called "London Club". This was a new multilateral export control regime covering nuclear exports to all States, whether or not parties to the NPT. The NSG was created three years after the Zangger Committee to complete and overcome its shortcomings. Thus, the prerogatives of the NSG are not limited to the provisions of the NPT: the controls put in place by the Group may therefore cover a wider range of goods and technologies and evolve with technological progress. On the other hand, the controls established by the NSG concerning exports to all countries, even those who are not members of the NPT. The NSG publishes two lists:
The NSG has experienced a period of relative decline between 1978 and 1990. In 1992, the revelations about the nuclear program of Iraq (which had been prepared, among others, through goods and dual-use technologies previously estimated bit likely to be diverted for military purposes) were an opportunity to revitalize the multilateral control regime and strengthen its provisions (in particular in order to control dual-use goods and technologies). The Missile Technology Control Regime (MTCR) The Missile Technology Control Regime (MTCR acronym) is a multilateral export control regime to limit the proliferation ofweapons of mass destruction by controlling transfers of missiles that can serve as a vector for these weapons. The MTCR was established in 1987 by Canada, France, Germany, Italy, Japan, the United Kingdom and the United States. Since then, the MTCR now has thirty-four country, and all have an equal right within the Plan. The Australia Group (AG) In 1985, following the finding by the United Nations of use of chemical weapons by Iraq during its war against Iran and knowing that the construction of Iraqi chemical plants resulted from transfers of equipment and free Western technologies export, it was established at the initiative of Australia a new international body, the Australia Group (AG acronym), chaired by Australia, meeting only to the Australian Embassy in Paris and consists exclusively of Australian personnel. The Australia Group was also interested in the products and equipment following the biological evidence of biological weapons programs in some countries. Its purpose is to establish lists of products and chemical equipment and biological control (and to exchange information for the fight against the proliferation of chemical and biological weapons).
The Organization for the Prohibition of Chemical Weapons (OPCW). The Organization for the Prohibition of Chemical Weapons (OPCW acronym) was created as a result of the Chemical Weapons Convention. This official body based in The Hague. Its purpose is to ensure the destruction of chemical weapons produced in the signatory states of the Convention and monitor chemical plants likely to conceal clandestine activities. The list of chemicals subject to control is that annexed to the agreement; it includes chemical precursors of the list of the Australia Group and hazardous products capable of misuse.
The "Control of final destination" in the years 80 The effectiveness of COCOM has been questioned in the early 80s as a result of technological pillage in favor of the former Soviet Union revealed by KGB officer called Colonel Vetrov and known as the "Farewell", which sold to the French espionage against (former DST) Russian secret documents for the "Supreme Soviet" making the financial statement of flights with multiple top-secret military technology including the USA collected in Britain and France .. This discovery disaster was revealed to US President Reagan by French President Mitterrand at the beginning of his first seven. Farewell This has been a diplomatic incident between France and the former Soviet Union following the expulsion in April 1983 forty "diplomats" Russian based in Paris. Colonel Vetrov was murdered during a reckless return to Russia. The 17 states of the COCOM was rallied by publishing, in 1985, a new list of sensitive goods and technology and strengthening their multilateral controls. Therefore, in France, the services of espionage against (former DST) and customs revealed and sanctioned the illicit transfer of goods and technology to civil and military use, particularly to the former USSR. At the time of Farewell, regulation on "control of the final destination" existed in France in the form of a notice to importers and exporters gazetted of the French Republic (JORF) in 1976. This text publishing the list of goods subject to controls established by the COCOM was based on a decree of 1944 which aimed to establish a protection of foreign trade due to the precarious economic situation of the release time. The decree referred to a 1938 law on the organization of the economy in times of war. Given the tremendous development of computer science and military technology in the early 80s, the current regulations had become totally obsolete, misunderstood and passed into oblivion. In addition, its legal basis was particularly questionable. The French authorities have re-entered the JORF by publishing the Notice to importers and exporters of 5 December 1985 containing the list of strategic goods a hundred pages revised that year to COCOM. In July 1987 a diplomatic incident between the United States and Japan occurred during export of machine tools coordinated five axes simultaneously (using a Norwegian CNC), a Japanese company to manufacturing silent propellers for Russian submarines, while Japan was a member state of the ECs. The Japanese authorities have so eager to immediately disclose that a large French company had made a similar mistake by exporting to the former Soviet Union of large machine tools to build jumbo jets. This information has resulted in the same way to a diplomatic incident between the US and France, active member and founder of COCOM. This French affair led to the former DST to indict five leaders of the undertaking concerned and to place them in custody for several months "with the enemy". The United States expressed concern about the sale of machine tools as easy five-axis coordinated simultaneously not only for the official reason given, but also because export risk machining means of curved surfaces and perfectly accurate to from complex mathematical equations for the envelope production of nuclear weapons. From this scandal and other American diplomatic protests against the failure by France of its commitments COCOM, several illicit transfer of technologies were recognized by the National Directorate of Customs Intelligence and Investigation (DNRED) and their authors were the subject of legal proceedings on the part of the customs administration. COCOM member states were indeed increasingly aware of illegal transfers of sensitive technologies in all areas, especially regarding microelectronics and computer whose military uses, at the time, were only advance France has found unlicensed exports of materials and production technologies of silicon integrated circuits or gallium arsenide organized by a well-known business intelligence for its trading activities of high technology products with countries of the "communist bloc". In 1987, a French equipment under control of the final destination and exported without a license to the former USSR in this industry become "the enemy # 1" in Europe has been intercepted in transit by the Luxembourg customs. The person concerned has been the subject of a lawsuit in Luxembourg in which he claimed that an export ban on the part of a member state of the European Community was contrary to European law, as well as sanctions penal imposed in this case. The Luxembourg Court of Cassation then before the Court of Justice (ECJ) for a preliminary ruling on the case. The European Justice delivered a judgment that the export policy was the responsibility of the European Community, but rarely a member state could prohibit transit goods to internal or external security reasons and to impose proportionate penalties the gravity of the infringement (see Case C-367/89 of 4 actobre 1991). Similarly, from 1984 to 1988, several industrial facilities in organic chemistry, subject to review in Germany by a text called Außenwirtschaftsverordnung (AWV) of 14 May 1984 concerning foreign trade, were exported to Iraq without a license and intercepted by Customs Hamburg. The manufacturers concerned have challenged both the regulations in force and the criminal proceedings against them, which prompted the German court to file a preliminary question to the ECJ which finally delivered a judgment that the export policy was the competence of the European Community but that a member state could exceptionally prohibit or control certain exports for reasons of internal security and extrieure and impose criminal penalties commensurate with the gravity of the infringement (see Case C-83/94 October 17, 1995). Following the mission of the subsequent UN investigation on the use of chemical weapons during the Iran-Iraq war, and given the absence of regulations for the control of chemical and biological products and equipment in many exporting countries The industrialized states, aware of the diversion of their precursors and industrial uses special equipment for the production of chemical warfare, gathered at the Australian Embassy in Paris from 1987 to prepare lists control and form an intergovernmental body they called the Australia Group. At the same time, and following an appeal to the Council of State from a French company against the regulations in force, the budget minister (in charge of customs) implicitly linked the notice to importers and exporters challenged a decree under Article 215 of the Customs Code that it published 24 September 1987. This fragile and provisional legal basis, simply based on control by customs officers in the detention and transport of prohibited goods to under international commitment was instituted pending the finalization of a bill often announced but never presented to the Cabinet. In 1988, many serious cases have been updated. That year, Iran imported Explosives products in France; Iraq procured in England capacitors and spark gaps for the initiation of nuclear weapons; Pakistan is stocked with nuclear weapons production facilities in different Western countries ... etc. The press release of the Ministry of Economy, Finance and Budget, entitled "Customs in 1988 - Activities and results" has reported "58 significant findings in control of the final destination of the material relating sister of a total value of CHF 566 million made in 1988 (about 91 million euros) It wasspecified. "Most of the violations reported (54) consist of false export declarations species to avoid production a license or permit the shipment of supplies to a destination for laqiuelle no authorization to export peurt be issued. The Customs Code shows that a false declaration of nature of species to evade measures of prohibition, ie a fraudulent declaration on the nature of the goods, equivalent to an export without declaration (action contraband). To avoid these kind of false statements, the Directorate General of Customs and Excise initiated at the time the update of the list of products (ex-NDP), where the items were subdivisions of tariff subheadings and statistics of the nomenclature of the Common Customs Tariff to mention the property under the control of the final destination. The work of customs in collaboration with industry service lasted long enough given the large volume of goods to codify and the difficulty of correlating customs codes of goods and codes of goods subject to the final destination control logic which were different.Following an initiative by France, correlation work between the COCOM list and subheadings of the Harmonized Commodity Description and system COCOM took place between officials of the member countries of this international customs authority. The work of integrating the list of codes of products listed at the COCOM in the former NDP eventually lapsed, firstly due to the redesign of the list by a "hard core" of 10 new categories (corresponding the 10 US categories of sensitive goods) and partly due to the melting of the Common Customs Tariff with the European statistical classification (former NIMEXE) pursuant to Regulation No 2658/87 on the tariff nomenclature and Statistics Common Customs Tariff came into force on 1 January 1988. This regulation created an eight-digit Combined Nomenclature (CN) obtained by subdivision by-six-digit Harmonized System of codification and description of goods (HS) and a Community Integrated Tariff (TARIC) to ten figures obtained by subdivision of the CN subheadings to eight digits and intended to take account of specific Community measures. The customs administration was then in the situation where strategic products had lost their specific coding on which were based customs controllers to monitor exports of goods called "strategic goods" The notice to importers and exporters on the control of the final destination of high technology products has undergone a redesign March 5, 1988 following the revision of the COCOM list of 1987. But illegal exports continued despite the vigilance of customs officers were warned of the proliferation of weapons of mass destruction risk by diversion of civilian goods for malicious purposes. In particuler, the National Directorate of Customs Intelligence and Investigation (DNRED) was seized by the DGDDI many investigations following information on the turpitude of certain French companies. In particular, in February 1989, an ion implanter loaded into a truck and exported without a license to the former Soviet Union via Italy was intercepted by customs in Grenoble to prevent him from leaving, and was the subject a complaint from DNRED. But this case has been the subject of procedural incidents and expert battles on the nature of the goods and ultimately did not result in a judgment in favor of the customs. The Customs Administration, under the Ministry of the Budget, lacked legal means to prevent technology leaks allowing malicious state to produce weapons "unconventional". At the time, customs could prosecute that under the Customs Code as a "writ of tax authority" (prescription limited to three years). Moreover, the former DST could prosecute under the Criminal Code (with prescription of ten years), but the qualification of "intelligence with the enemy" in force at the time was intended only for illegal activities carried out in time of war and not for international trade transactions, which was also a questionable legal basis. Despite the wide discretion of the French authorities on their participation in the work of COCOM and their fight against proliferation, French turpitude covered by secrecy defense were denounced and described in detail by an American journalist oddly very knowledgeable, Kenneth Timmerman, in his book "La grande fauche" published by Plon in 1989. This publication shows that the US authorities were aware of the illegal conduct on the part of many French companies, lobbied France, a founding member of COCOM for it respects its commitments and is stepping up controls on strategic goods and technologies available to it as a great industrial and military power In France, many consecutive business to offenses relating to the "control of the final destination" ended in court by non-place that, even now, can not be revealed. These judicial failures on the part of French authorities have resulted from the lightness of the text, the slow procedures and many legal loopholes arising from the non transposition into French regulation of agreements in intergovernmental bodies dealing with the fight against the proliferation of weapons of mass destruction (nuclear, chemical, biological, and their delivery). Indeed, the lists of the Australia Group, the Nuclear Suppliers Group and Missile Technology Control systems, all created in 1987, were not immediately included in the notice to importers and exporters such as COCOM . Thus, unlike Germany, France was unable to obtain convictions for illegal exports to Libya, Iraq, Pakistan, and others, following the clandestine assistance provided to developing nuclear programs, chemical and ballistic those countries. Many countries have been slow to issue regulations for the control of the means of production of chemical and biological weapons, despite their participation in the Australia Group control of certain chemicals was set by the European Council Regulation No. 428/89 of February 20, 1989 following the international conference on chemical weapons which took place in Paris from 7 to 11 January 1989. Illicit transfers to the former USSR contitué to the point that the embargo against the "communist bloc" had become virtually irrelevant given the profits to be made by unscrupulous intermediaries, to the point that the President of the former USSR, Mikhail Gorbachev would have said at the time that "Western businessmen would be able to sell the rope with which they would hang"
The evolution in the 90s
The fall of the Berlin wall has completely changed the international situation in the fight against proliferation. COCOM reshuffled the list of products covered by a "hard core" of 10 categories according copied the American model, representing the bulk of sensitive goods and technologies. Then Italy lost the presidency of the COCOM to the benefit of the Netherlands. High-level meetings and various committees are longer held in Paris (as was the case forty years). French was abandoinné and English became the sole language of work. Finally, COCOM was dissolved in 1994 and replaced by an intergovernmental organization based in Wassenaar was installed in the Netherlands and its secretariat in Vienna, Austria. The Gulf War and the Libyan threats have led modern country to increase their vigilance over the trade of products of high technologies likely to malicious use. Especially since the supply networks use nuclear equipment for Pakistan and North Korea, well known but never dismantled, represented a threat to international stability; and that nuclear tests and ballistic India, China and Pakistan, showed that developing countries were able to obtain all the material necessary for the development of nuclear weapons despite the existence of controls. At that time, the fight against proliferation of weapons of mass destruction was supervised at the interdepartmental level by the Secretariat of National Defense (NWMO), has now become General Secretariat for Defence and National Security SGDSN). The opening of European borders was completed on 1 January 1993 and the state might not be able to exercise any control over strategic assets. But with the initiative of the former NWMO has recognized this serious drawback from the October 1992 war materials and goods and technology to both civil and military use continued to be the subject to export restrictions under international agreements (informal but real) of "fight against the proliferation of weapons of mass destruction" by presenting an amendment to the Government before the vote and the promulgation of the Law of 31 December 2012 on various administrative and tax provisions. This law, which was a "catch-all" of texts on many different subjects, voted and promulgated emergency on the eve of the liberalization of trade between European states, thus allowed, in extremis, to maintain control over strategic products. Finally, the EU has supported the fight against the proliferation of weapons of mass destruction by issuing Regulation (EC) No 3381/94 of 19 December 1994, based on Article 113 of the European Treaty (political common commercial) "establishing a Community system of export controls of dual-use goods" supplemented by Decision No 94/942 / CFSP of 19 December 1994 under the common foreign and security policy combining the lists of all international monitoring bodies into one list of dual-use goods (BDU). The European Union considered in particular to:
This "cross-pillar system," judged upon its adoption as being transient, was struck by two judgments of the Court of Justice of the European Communities in 1995, following an appeal to a German company, judging that the control should meet only the common commercial policy. The French texts adopted under the EU regulations were as follows:
But in 1995, upon the election of Jacques Chirac as President of the Republic and the appointment of Alain Juppe as head of the Government, the Prime Minister of the service has undergone a profound reform that has reduced its staff by two thirds.Therefore each ministry had become autonomous to handle the fight against the proliferation of weapons of mass destruction and the action was in fact conducted by the Ministry for Industry, which only had three engineers to review license applications and participate international expert meetings. The disinterest of France with regard to the COCOM consecutive to the collapse of the Soviet Union after the fall of the Berlin Wall has led to a loss of vigilance on illegal trafficking of civilian property could another use , terrorist or military. This is when the European Union has recognized the need for joint action eu and security and the list of dual-use goods has been updated by the European Council Decision 1999/193 / CFSP March 9, 1999. This system was valid for honest businesses properly declaring their goods in their export licenses, but it remained a"Maginot line" not preventing the illicit supply of components of weapons of mass destruction by false declaration of species, due to the absence of a codification of strategic products necessary for the work of supervision by customs inspectors.
The control of "dual use goods" in the 2000s A new control system based exclusively on the "first pillar" of the European Union was adopted by the publication of Regulation No 1334/2000 of 22 June 2000 pursuant to Article 115 of the Treaty. The list of dual-use items (including software and technology) was then published in Annex 1 to this regulation, rather than be subject, as before, a separate decision in the context of foreign policy and Common security policy (CFSP). The French text made under the EU regulation was the order of the Minister of Economy and Finance of 13 December 2001, signed by General Director of Customs and Indirect Taxes who was responsible for the implementation of the new provisions material BDU. Following the attacks of 11 September 2001 in New York and subsequent terrorist threats to the events in Iraq and Afghanistan, the European Union expressed concern about the risk of mass destruction from terrorists organistaions at two meetings of the European Council in July and December 2003 and the United Nations Security Council called for tighter controls on dual-use goods under resolution No. 1540/2004 of 28 April 2004. This resolution has led the European Union to issue regulations establishing restrictive measures against Iran (423/2007) and North Korea (1110/2008) under the common foreign and security policy. The Security Council was forced to renew that resolution in 2008 was because the 2004 was not followed with regard to dual-use goods. This action UN eventually translated, at European level, an overhaul of the basic Regulation on dual-use goods by Regulation No 428/2009 entered into force August 27, 2009. For the effective implementation of these regulations by European customs administrations, the European Commission has included in the database of the Community Integrated Tariff (TARIC) sections and paragraphs of goods subject to restrictive measures under lists the fight against proliferation. In 2006 she published a correlation list between TARIC subheadings to 10 digits and the articles and paragraphs of the list of dual-use goods, which was taken in the computer systems of operational customs declaration in countries European (DELTA in France) In fact, there was a correlation between the Combined Nomenclature to 8 digits and the list of dual-use goods since the last two digits were 00. This list, which was vaguely updated in July 2012, was wearing not on all subheadings of the Combined Nomenclature contains sensitive goods. Conversely, it was framed in specific goods subheadings covering a multitude of goods with no strategic character. Moreover, this correlation list included numerous classification errors. All this has led to numerous bottlenecks in customs-free goods for export and has been in practice an obstacle to European exports and an encouragement to illegal transfers of dual-use goods. For sixty years, control of the final destination and subsequently that of dual-use goods (BDU) were managed by the Customs Administration. License applications were sent to the service of business and financial authorizations (former Safico), then called service of the securities of foreign trade (ex-SETICE) which depended on interregional customs directorate of Ile de France. These licenses were issued after consultation with the Ministry of Industry who consulted, where appropriate, relevant ministries (interior, defense, foreign affairs ...). The differences of opinion between ministries were mediated at the level of the Prime Minister's Services. Decree No. 37 of 17 January 2009, in its initial version, ended the central role of the customs control of goods creating a dual-purpose mission under the authority of a chief engineer of the armament . This mission was composed of the SETICE customs personnel and several engineers recruited by the former Directorate General of Competitiveness, Industry and Services (formerly DGCIS) of the Ministry for Industry, now become the general direction Business (DGE) for the processing of license applications and participation in interdepartmental and international meetings. This was a temporary stage in the 2010 reform. The provisions against proliferation of weapons of mass destruction were the subject of a complete overhaul by the publication of Regulation No 428/2009 of 5 May 2009 "establishing a Community system of export controls, transfers ., brokering and transit of dual-use goods "This text in force in any European kl'Union is fed by two major recitals indicating its legal basis (recitals Nos 14 and 15):
The introductory recital 14 It refers to "action plan Thesalonique" adopted at the European Council in June 2003, supplemented by the "WMD Strategy of the European Union" then passed at a new European Council of December 2003.
The introductory recital No 15 He recalled that the United Nations Security Council, by Resolution No. 1540 (2004) of 28 April 2004, inviét states to establish domestic controls to prevent the proliferation of nuclear, chemical or biological or their vectors.
The Proliferation Initiative Security (PSI) At the beginning of 2000, fearing an even more murderous attack than the September 11, 2001 in New York from terrorist organizations and knowing the real risks of proliferation of weapons of mass destruction (nuclear, chemical, biological and ballistic) the US announced in May 2003 the creation of a Proliferation Initiative Security (acronym PSI) whose 11 founding states were Germany, Australia, Spain, the United States, France, Italy, Japan, the Netherlands, Poland, Portugal and the UK. The PSI was created during a check for non-compliance with the rules of maritime law, for the Spanish Navy December 10, 2002, a North Korean ship en route to Yemen, which hid under a false cargo 15 complete SCUD missiles, 15 warheads "conventional" explosive and oxidant for these missiles. At their first plenary meeting held in Paris on 3 and 4 September 2003, the 11 founding states of PSI issued a "Statement of Interdiction Principles" containing concrete goals for air traffic control, maritime and Terrestrial high technology products by a cooperation means and the implementation of coercive means. Subsequently, many other states have joined this initiative and 21 of them have formed a working group of experts (English acronym OEG) constituting the PSI pregnant coordination and meeting each year to set objectives according to the "Paris Principles" based on the information and means that each participant could provide. Currently, one hundred countries have joined the PSI and can be called to cooperate to prevent illegal trafficking of goods mainly in the lists of inter-governmental bodies in the fight against proliferation. The Foreign Ministry has officially know the existence of this international cooperation in the following manner in its website http://www.diplomatie.gouv.fr:
From an operational standpoint, the PSI allowed the participants to conduct many operations that have proven successful, that is to say who actually interrupted trafficking of materials proliferating and illicit goods or equipment. Reinforcing controls from 2010 France has strengthened its legal system by publication in the Official Gazette of 20 March 2010 a series of decrees and arrétés changing the organization of controls (Last updated: April 1, 2010). The main text is the Decree No. 2010-292 of 18 March 2010 concerning the export licensing procedures, transfer, brokering and transit of dual-use goods and with transfer of powers from the Directorate General of Customs to the Directorate General of Competitiveness, Industry and Services (DGCIS), now become the Directorate General for Enterprise (DGE). The decree of 13 December 2001 on the management of dual use items has been amended by the Decree of 18 March 2010. After a year of operation, the dual-use goods control mission to the former DGCIS has become the dual-use service (SBDU) to strengthened workforce. Created by order of 18 March 2010, the dual-use goods department was responsible for:
Furthermore, it was established an interdepartmental commission of dual-use goods (CIBDU) to the Minister of Foreign and European Affairs by decree 2010-294 of 18 March 2010. This Committee provides advice on all matters relating to export, transfer, brokering and transit of dual-use goods and technologies, particularly in matters of classification and regulation; to adjudicate on the application of Article 4 of Regulation No 428/2009 to prohibit or impose license of goods not listed on checklists etc ... Finally, the French criminal legislation has been clarified. Article 706-167 of the Code of Criminal Procedure, created by Act No. 2011-266 of 14 March 2011, has indeed listed the offenses punished by the code of defense, the Customs Code and the Penal Code of proliferation of weapons of mass destruction, namely:
The lists of goods subject to export restrictions measures to certain countries (Iran, North Korea ...) have been continuously updated since 2010 depending on the international situation and of resolutions United Nations. As for Annex I to Regulation No 428/2009 concerning the list of dual-use goods, it was revised by Regulation No 388/2012 of 19 April 2012. It is still being reviewed by following the updates date lists of international bodies carried out since 2012; the new list of BDU now soon be published.
The threat of dictatorships and terrorist organizations The risks of proliferation of weapons of mass destruction are increasing. A threat of destruction by fire was clearly expressed by the President of the Democratic People's Republic of Korea (North Korea). This state has managed for a long time to clandestinely procure production equipment and technology of nuclear weapons and ballistic missiles by purchasing dual-use goods in Western countries. This country has benefited from the existence of networks organized by a Pakistani scientist well known in the past of all the intelligence agencies and the specialist press. They have never been dismantled.Any other totalitarian state could well threaten us with mass destruction. The US may have been wrong to go to war against Iraq to remove Saddam Husseim, and France may have erred in attacking Libya to neutralize that of Muammar Gaddafi, but these two dictators had a real desire to acquire weapons "unconventional". The plant in Rabta in Libya and that of Fallujah in Iraq (dismantled under the supervision of the United Nations after the Second Gulf War) were well chemical weapons production units built by engineering and 'European equipment. The presence of weapons of mass destruction in Iraq (nuclear and biological) was certainly a pretext by the US to go to war again against Iraq, but we must remember that before invading Kuwait Saddam Hussein had boasted to journalists around the world have managed to procure spark gaps required for manufacturing detonators for nuclear weapons. He did not hesitate to be filmed showing a Kryton, bought in England, which he held in his hand. Houssama killing bin Laden, considered the instigator of the suicide attack of 11 September 2001 against the World Trade Center in New York, did not remove the problem of terrorism in the world. Terrorist actions have only increased over the first two decades of the XXI century. Either by shootings to kalashnikof or by car bombs or suicide attacks by the explosive belt ... etc. Almost every week we hear on the radio or on television that an explosion caused somewhere tens or hundreds of deaths and injuries. Moreover, the use of roadside bombs is unfortunately became common. Just do a mixture of fuels and oxidizers and fill in an empty gas bottle or a household pressure cooker (bomb the casserole). This happens not only in the Middle-East where this kind of attack is common, but also in England, Spain, the United States (Boston Marathon).Particularly murderous attacks were committed using a nitrate mixture of ammonium and fuel oil (ANFO) in Northern Ireland. More recently, in 2011 in Oslo, a Norwegian extreme right individual has committed a massacre in Oslo by detonating a truck loaded with ANFO obtained from several bags of agricultural fertilizer killing at least 10 people, before killing fifty teenagers gathered on a small nearby island for a long shootout. The risk of bomb attacks is increasing as revenue homemade bombs and firing systems are disclosed on the Internet by terrorist movements; they are often encrypted and transmitted through social networks. For several years of threats from terrorist organizations have developed as a result of the dismantling of the Libyan state, Iraq and Afghanistan, and civil war in Syria that has continued to fester. Invasions Islamist movements in black Africa necessitated French ground and air operations. The territorial growth of the Islamic state in the middle east (now DAESH) required air strikes in Iraq and Syria on the part of great powers. France wanted to limit themselves to bombing Iraq, but was eventually forced to neutralize radical Islamic training camps for reasons of "self-defense". The crimes against humanity committed by this terrorist movement was a major pretext for military intervention on the part of Russia to support the Syrian political regime in power. We must therefore fear that the escalating violence will lead to a major attack in the United States, Europe, North Africa, the Middle East, and elsewhere, by means of mass destruction "unconventional". To prevent all these cal, Law No. 2015-912 of 24 July 2015 concerning the information allowed the various French specialty services to use surveillance techniques by adding an eighth book of the Code of Homeland Security, whose title indicates V the means and Article L 811-3 of the objectives to be pursued:
Weapons of mass destruction The notion of mass destruction in the regulation of dual-use goods Having regard to Resolution 1740 (2004) of the UN Security Council, and on the other hand saw the introductory preamble to Regulation No 428/2009 modified the European Council cited above, and Articles and Annex I, WMD are exclusively nuclear, chemical, biological, and their delivery systems. Unlike the US regulation that adds Use Goods malicious purposes to lists drawn up by intergovernmental bodies, the European regulation is not intended for civilian use goods which could be diverted for terrorist purposes. The attacks of recent decades mentioned above have certainly produced some very important human damage, but the number of victims was limited to a few hundred dead and wounded. For mass destruction, means of destruction equivalent to those of the first world war resulting from continued firing of conventional and chemical shells sent by artillery batteries; or devastation during the Second World War where whole towns were destroyed and tens of thousands were killed by German bomber raids in France, England, Poland, Russia and elsewhere; as well as raids by Japanese and American bombers in the Far East, and American bombers and English in France and Germany. True mass destruction had taken place towards the end of the war when the Germans sent to England thousands of unmanned bombers (V 1), which were the first cruise missiles; then thousands guided rockets by inertial means (V 2). These bombings have caused massive damage on English cities. The worst occurred in 1945 with the dropping of nuclear bombs on Hiroshima and Nagasaki that caused immediately tens of thousands of deaths by the fireball, gamma radiation, shock wave and blast; and probably hundreds of thousands in the long run by burns and diseases produced by radioactivity. Populations frustrations continued in the multiple local conflicts in Vietnam, where US warplanes dumped thousands of tons of conventional bombs, and incendaires défoliantes; the Iran-Iraq front in two belligerents have used mustard gas as much as those of the First World War; Iraqi Kurdistan where the inhabitants of an entire valley were eliminated by poison gas; in Afghanistan; Syria etc ... Annex I listing the dual-use goods was changed again by the Delegated Regulation (EU) No 1382/2014 of the Commission of 22 October 2014, with effect from 31 December 2014. This list corresponds to the " related items "to these weapons of mass destruction introductory cited in recital No 15 of Regulation No 428/209 modified. - Nuclear weapons The Hiroshima bomb was dropped by four-engine B29 bomber flying at high altitude and produced an explosion with a power of about 20 kilotons of trinitotoluène (TNT), ie power equivalent to that the explosion of 700 mega-trucks each loaded 30 tons of TNT. That of Nagasaki, the same power, but different design and yet very heavy, was also dropped at high altitude for the aircraft to move rapidly away from the explosion site. Current bombs are thermonuclear weapons more powerful but the size and weight can be equivalent to those of a shell. However, having never realized nuclear tests, "proliferating states" or large terrorist organizations can not in any case have miniaturized nuclear weapons and may be washed away by a civil aircraft whose speed, altitude and load capacity are limited, or even by a SCUD missile. However, one can always worry carriage by sea container or truck of a nuclear device from 10 to 30 tons be stationed near a big city before exploding To do so would require the state or terrorist organization can procure a few kilograms of plutonium 239 (and very pure metal) of the steel to very high mechanical strength, special machine tools, priming explosives, tungsten carbide, beryllium, a neutron source, electronic synchronized ignition, electric spark ... etc. It seems unthinkable, but there may be a real attacker will obtain all these components smuggled in our European countries to realize a nuclear attack. - Chemical weapons The chemical weapon is terrifying but it is much less effective than nuclear weapons because it requires sending thousands of bombs or shells into an urban area for mass destruction equivalent to those of a nuclear weapon. Mustard gas was used extensively during the First World War and the Iran / Iraq conflict. This toxic war is quite easy to manufacture by a state that has corrosion resistant equipment to the hydrogen chloride (HCl). Used in the liquid state but very volatile, it can be taken away by aircraft able to carry hundreds of liters, and be spilled like a spreading of agricultural pesticides, if the pilot is able to protect against toxicity of this "poison gas". The neurotoxic products, such as sarin, soman, which require smaller amounts away, are much more deadly, but they present a greater hazard for the pilot if they were spread by air. In addition, they are very difficult to manufacture because of their instability in time. UN inspections (UNSCOM) made during the 90 years have indeed shown that Iraq had implemented German manufacturing processes from the years 40 and sarin contained in the shell stocks dating back several years was completely decomposed. This risk may be unlikely, but it is not zero Paragraph 9A350 on the list of dual-use goods and aims spraying or fogging systems, specially designed or modified for fitting to aircraft, lighter than air vehicles or unmanned aerial vehicles, and components specially designed; ie aerosol generating units capable of very fine droplets High volume from liquid products. In other words, the spray booms fixed in helicopters or crop spraying aircraft type Piper PA-25, and provided with a dozen AU5000 and AU7000 atomizers Micronair may be prohibited or subject to authorization in 'export. - Biological weapons The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin up for signature by the United Nations 10 April 1972 entered into force in 1975. It currently has 163 States Parties. The Convention prohibits the development, production, stockpiling and transfer of biological weapons, and requires its members the destruction of any stocks or peaceful use of these. It does not directly prohibit the use of "biological weapons", but refers to the Geneva Protocol in 1925 makes this binding ban under international law. Some non-signatories to the convention have sought country (or seek) to realize what kind of weapon trying to massively produce pathogenic microorganisms to extract the corresponding toxins. Toxins are non-living products, ultra-toxic, secreted by these pathogens; these biobased chemicals do not have the drawback to reproduce, multiply and so cause uncontrollable pandemics, as could their pathogens producers. The manufacturing technologies are the same as those manufacturing vaccines that require manipulation under suits of pathogens in laboratories P4 very high protection, equipped with specially adapted equipment, also subject to control as dual-use goods. The lounchers of mass destruction weapons - "Missiles" Regarding ballistic rockets scud A, derived from German V2, and produced in the 50s by the former USSR under the name of SS-1b, their payload was of several hundred kilograms with a range of 130 km. The Scud B (SS-1c), with a payload of 1000 kg, with a range of 300 km and a 900 précisison my then produced in the former USSR in thousands of copies, and then he been copied under different names in many countries and massively used by the two sides during the Iran / Iraq war, taking particular mustard gas or sarin. Later versions of this ballistic missile have been improved. Indeed, the Scud C and D, which have been widely spread, now have payloads of more than one tonne, a range of several hundred kilometers with respective accuracies of 900 m and 50 m. As for the newer missiles produced by the major nuclear powers, they have long been an intercontinental range and can issue multiple loads at accuracies of around one meter. Information on missile guidance was provided in the latest version of the Militarily Critical Technology List (MCTL) published in 1998 by the US Department of Defence. For example, regarding inertial navigation systems, US military authorities explain this:
Thus components, accessories and missile guidance systems fall under the regulation of dual-use goods. These are listed in the attached appendix to this report reproduces the relevant paragraphs of Chapters 7 and 9 of the list of dual-use goods. The same guiding technologies can be used for "drones." Indeed, the general definition of 'missile' given by the Wassenaar Arrangement, and included in the list of dual-use goods, integrates s "aerial vehicle systems without crew, whose scope is at least equal to 300 km and capable of carrying a payload of 500 kg. "Paragraph 9A110 to the transposition of the definition of MTCR again shows the same minimum range of 300 km, but specifies no payload threshold. A European Parliament document from 2007 entitled "UAVs and UCAVs: Developments in the European Union", an excerpt of which is reproduced below, provides an update on these devices and distinguishes the bearers of a bomb UCAVs and UAVs used mainly observation:
The drivers of these "flying bombs" must guide their machines in all weather, correct their speed, make changes of direction in case of a threat to enemy territory, to control their height above terrain etc ... The radio remote control requires sophisticated encryption means flight data, and transmission impossible to be detected (for example, by spread spectrum technology), so that neither the equipment nor the pilot are localized by the adversary . Also, before transmitting their data to the pilot on the ground floor, so that it can check the path of their UCAV or change, they must identify themselves automatically in the airspace by coordinating more means posittionnement. To refine the precision air strike, inertial navigation systems must be combined with speed corrections to reference attitude controls triangulation to three stars as reference using gyro-astro compasses, to tracking magnetic north by magnetometers, to positioning followed by differential GPS (positioning itself relative a stationary point such as a helicopter) associated with the mapping of the field in three dimensions, in coordination by ultra clocks precise ... etc. UCAVs must be stealth (using special paints), flying at very low altitude and follow the terrain. They must be able to suddenly change altitude or direction at very short radii to avoid enemy fighters that can not turn or change altitude as quickly, causing accelerations of 10-20 times that of gravity or more, causing the mechanical parts and electronics to resist deformation and compression, and the wings to resist breakage. UCAVs can be autonomous (flying without the aid of a fallen pilot) and preprogrammed but unlike ballistic missiles whose trajectory deviates little these flying bombs continuously deviate from their trajectory undergoing weathering and must correct it immediately their board computer manage data from their sensors. This is called cruise missiles whose design is perfectly sophisticated. - "Aircraft" It is piloted aircraft and helicopters. Aleppo city in entire neighborhoods were seen recently on TV helicopters of the Syrian army destroyed by bombing vertically with immobilized helicopters hovering a few hundred meters. It includes the control of exports of all helicopters in the decree of 31 July 2014 pursuant to Regulation No 428/2009 as amended, for reasons of vector control proliferation of weapons of mass destruction, because the explosive charges can chemical and also be registered accurately. However, except in cases of use of suicide aircraft with a steering assistance by navigation systems under the regulation of dual-use goods, or hijacking of agricultural pesticide spraying, the export ban civilian aircraft by the "catch-all clause" is not justified. Normal planes are not designed to drop a load of tens or hundreds of kilograms dive on a specific target as were the single-engine dive bombers during the Second World War (Stukas alllemands, American AT6, Japanese Zeros. ...). These older aircraft bomb disposal failover systems to avoid it hits the propeller upon its release and had shields to prevent small arms fire at low altitude. They were also very robust to withstand the very high acceleration weighing on the structure and on the wings going up sharply to regain altitude, but they are very fast become obsolete because they were slower and less manoeuvrable hunters that eliminated them, especially since, at the end of the war, appeared jet fighters capable of removing any propeller plane. The restrictive export measures with respect to WTO rules and WCO By their ambivalent nature, dual-use goods firstly fall under commercial law. Indeed, their initial use is presupposed civil. Therefore we consider the control of these assets as falling into one of international trade rules. However, because of security and strategic risks they represent a departure from these principles is possible, when it is simply not expected.
And control and restrictions on the export of dual-use goods seem to fit in contradiction with the fundamental principles of international economic law. However, these agreements have provided for derogations for certain categories of goods.The trade of cultural goods, weapons or dual-use goods are all categories that are subject to controls that can represent a barrier to international trade. The GATT provides this possibility by derogations, in Articles XX and XXI, for Member States wishing to evade the free trade principles. However, these exemptions are subject to conditions. Thus, they should not be applied "in a manner that constitutes arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade" Furthermore, the scope of these exceptions is set.: protection of health and life of humans, animals, export of gold or money (Article XX) or even security (Article XXI). It is this derogation that founded the legal principles of international control of dual use goods:
So Article XXI b) ii) establishes the legal basis of dual-use goods control by allowing all WTO members to exercise control at variance with fundamental principles of free trade on goods destined directly but also indirectly for military purposes.So controlling these exports is not a real departure from free trade principles but a necessary adjustment to strategic imperatives. While free trade is one of the central principles of international relations, it does not constitute the keystone.Security interests, strategic and defense of states but also of the international community take precedence over outright free movement of goods. Moreover, as will be seen later, the strict ban on exports remains the exception in the control of dual use goods. Thus, these flows are not prohibited but supervised and controlled, so it's not a total exception to free trade principles in breach of commercial and industrial issues but a frame for international security imperative reasons including the UN, in particular, defined the contours. The UN and the general framework of control of dual-use goods If commercial legal principles which raises the control of dual-use items have been addressed, it is now to consider the second dimension of these goods and the safety aspect of their control. Thus, the United Nations (UN) wanted to lay the foundations of the security aspect of this control. Indeed, the peacekeeping and international security is a mission of the Security Council, of which France is a member Standing since its creation in 1945, following the conference in San Francisco. The decisions taken by the Security Council must be accepted and applied by the Member States (Article 25 of the UN Charter), which makes them valuable tools for harmonization with UN eyes. This is particularly the Chapter VII of the UN Charter and Resolution 1540 of April 28, 2004, decision by the Security Council, which agreed to establish a control of dual use goods globally. However it appears that the general system of control is not necessarily the most effective framework for action. Check for security reasons the export of dual-use goods falls a diplomatic and political will of States expressed through the Security Council and the UN. Chapter VII of the UN Charter, entitled "Action with respect to threats against peace, breaches of peace and acts of aggression", provides in Article 39 that if the board finds the " existence of a threat against peace, breach of peace or act of aggression ", it may decide" what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security ". Thus, Article 41 provides for measures not involving the use of force may be taken by the Security Council. These measures may be to invite Member States to "complete or partial interruption of economic relations' with the State targeted by sanctions, that is to say embargoes. Therefore States can be brought on the decision of the Security Council, to monitor banned exports of sensitive goods, such as dual-use goods to destinations so-called risk. The United identify countries deemed at risk and decide to control exports of sensitive goods to these countries under embargoes. The example of Security Council resolutions against Iran since 2006 illustrates the use made by the UN Article 41 Chapter VII of the Charter to control these goods. And resolution 1737 (2006) 9 prohibits the "supply, sale or transfer, directly or indirectly [...] of all items, materials, equipment, goods and technology [...] that could contribute to enrichment-related activities, reprocessing or heavy water or the development of nuclear weapon delivery systems. " This commitment was later reaffirmed by resolution 1803 (2008) which complements Resolution 1737 by placing embargo on dual-use goods listed by a circular (updated in 2010) to which section 13 of resolution 1803 made reference. The Security Council has considered necessary to strictly control trade in dual-use goods in the same way as conventional weapons. Resolution 1929 (2010) has recently come to expand this arsenal by adding restrictions to dual-use technology transfers in sensitive sectors, the provision of financial services, "including insurance and reinsurance," or transfer "of any financial or other assets or economic resources [which] could contribute to nuclear activities in Iran." Moreover, the resolution establishes strict control of goods listed in resolutions 1737 and 1803 by authorizing, in Article 16, Member States to seize and carry out neutralization during inspections, they, under national legislation (Article 14). Lately, this control has been questioned, although maintained in the negotiations over Iran's nuclear.If France seemed very reluctant to easing this check, it appeared that these sanctions were potentially questionable, especially for the United States. Indeed, the last meeting in March 2015 in Lausanne foreshadowed a breakthrough on the lifting of sanctions. Thus, through these resolutions and the example of the Iranian embargo, it appears that the international control of dual-use items first notes of a political and security will and applies primarily to targeted areas and considered at risk. The establishment of an ad hoc regulation is necessary here to oversee the transfer of those goods to Iran and an exhaustive list of goods is set for the application of these texts. It is therefore not face international regulatory ordinary dual-use goods but timely and specific embargo measures through diplomatic negotiations and related geostrategic context. Resolution 1540, adopted on 28 April 2004 by the UN Security Council, under Chapter VII, is a legally binding text. It aims, in an environment post September 11, 2001, to strengthen the fight against "the proliferation of nuclear, biological, chemical and their means of delivery, and the risk related to the acquisition of such weapons by non-state actors". The resolution 1540 is a response to concerns that come with the fall of the USSR and in the aftermath of September 11, 2001, to see new non-State actors pose a threat hitherto poorly considered by the Treaties "classic" non-proliferation. This resolution and advocates non-proliferation, multilateralism and cooperation to fight effectively against new threats identified. This marks, at the time, a reversal of the US diplomatic policy. In an efficiency objective, it commits a strengthening of coercive and repressive measures in addition to mainly preventive actions of previous treaties on non-proliferation. Thus, the Security Council "decides" that states are obliged to "take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical or biological weapons and their means of delivery, there including by establishing appropriate controls over related materials ". Use of the term "related materials", without reference to an exhaustive list of property or equipment, thus leaves a wide scope for interpretation and control that allows to include dual-use goods. This text marks a return to a multilateral regime and stringent control of trade vocation of "sensitive" goods. However, whether by resolutions 1737, 1803 or 1929 in the case of Iran, and Resolution 1540, which establishes a general system of control, the UN merely laying the foundations of control. This is ultimately the internal law of States and efficiency depends largely on its transposition into national law. This is also why resolution 1540 of the 1540 Committee was created within the Security Council to oversee and assist States in implementing their obligations under the texte18. International texts therefore pose general control frameworks that allow harmonization of control standards, including using body such as the 1540 Committee, but remain subject to the national law transposing these standards and the achievement of a control depending exclusively on states. This is why some states have found it necessary to agree on more specific common control standards. It is in this light that were created various multilateral export control regimes (RMCE), the Wassenaar Arrangement. The action of the European Union The European Union is a key player in the establishment of this control. The majority of its members are now parts of the Wassenaar Arrangement, and were represented in COCOM. Moreover, many of the major exporting countries are members of the European Union (France, Germany, Belgium, Austria, Italy ...). It is quite natural that this issue has finally taken community dimensions. Indeed, the establishment of international regimes has particular advantages which appear limited, however. The adoption of a common base of control and a shared definition of the control field is necessary for the establishment of an effective regulatory framework. However, it turns out that this harmonization may not be sufficient, especially in a customs union such as the European Union. The free movement of goods enshrined in Article 28 of the Treaty on the Functioning of the European Union (TFEU), ex Article 23 TEC requires extensive coordination in supervision of dual-use goods. Without specific common standards, the non-participation of a single Member State the aforementioned control regimes would render useless the efforts of other member countries. So it is the exclusive competence of the Commission in customs and commercial matters (Article 3.1 TFEU), which has made export policies a community issue. However, this control was not easy to establish. By 1994 and the end of COCOM, the EU had tried to establish a common system of control. Indeed, the opening of European borders on 1 January 1993 implied the adoption of a common and specific diet. But it had initially failed because of a precarious balance between the objectives of security and competitiveness.For if the EU is competent in commercial matters, its prerogatives are safe, they are more uncertain. But the dual-use goods stood at the intersection of these two issues. Therefore, the "cross-pillar" dimension of such control, based on commercial and security foundations, was deemed contrary to Community law by the ECJ. However, the EU has set up a monitoring system since the 2000s, by recasting its action on legal grounds in conformity with Community law, without giving up the security and political dimension through the framework established by the Council. The control of exports of dual-use goods The basis of the European regulatory framework for dual-use goods was initially uncertain. This is the ambivalent nature of controlled items and the duality of regulatory motifs that had originally been a problem to the Court. The EU, let alone the Commission, having no formal legislative competence in defense and foreign policy, it remains exclusive to Member States, the control framework has been revised to stable legal foundations . It is based on the prerogatives of the Union in commercial matters, in a functionalist logic, that this has been developed, without abandoning its diplomatic and security dimension, as will be seen in particular through the Russian example . - Exclusive jurisdiction in exports The European Union, before being a political space or common citizen, is an integrated economic space with the European countries together around common trade and customs policies. The European Coal and Steel Community (ECSC) in 1951 and the European Economic Community (EEC) in 1957 laid the foundations of this common commercial and customs territory. The removal of customs duties, the establishment of common customs tariffs with third countries and almost exclusively in commercial matters of the commission made the EU a key player in external economic and trade policies. The Treaty on the Functioning of the European Union (TFEU) 2007 confers on exclusive jurisdiction in customs matters Union (Article 3.1 a) and commercial (Article 3.1 e)). Therefore, when interest in the Community in export regulations, it seems necessary to put the institutional framework in front. Indeed, the TFEU, with Article 207 paragraph 2 (art.133 former TEC), said that the commission and the council are competent to adopt measures "defining the framework in which implementing the common commercial policy" by regulation. This is the first legal basis for Community regulations that govern the control of dual use goods. The EU institutions are competent to legislate and regulate Community trade policy. And Regulation (EEC) No 2603/69 of 20 December 1969 establishing common rules for exports, sets the framework for this common trade regime and founded one of the three original pillars of the current European Union. This is also in line with the text of Regulation (EC) No 428/2009 of the Council of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual goods use enjoins States to take measures on the export of dual-use goods (paragraph 5 of the Regulation). It is the Community rules on commercial matters under the control of dual use goods. Furthermore, the future Customs Code of the Union, established by Community Regulation No. 450/2008 of 23 April 2008, will participate in the establishment of a unified customs territory in the tradition of the first Community Code of 1992. it applies uniformly to the entire territory of the EU 30 and intends to unify customs procedures, including electronic systems with the new text. This code applies to all goods covered by the Community Treaties, it aims to regulate and harmonize criminal penalties for infringements shutter control standards on dual use goods. The European Commission, notably through the Directorate General Taxation and Customs Union (TAXUD), is the Community Reference actor responsible for customs duties. These missions fall under three main areas: protection of the external borders of the EU, the development of international cooperation and the fight against fraud. But the development of rules and safety standards is the latest major trends at work in the reconfiguration of these missions31. So on the texts to facilitate trade between the members of the Union but also with third countries, the regulations on exports of dual-use goods relies first. But this control is also based on a more secure part of Community texts. - A common security policy In Article 21, the Treaty on European Union (1992) lists the EU's external action objectives. Among them, we find in paragraph 2 c), the preservation of peace, conflict prevention and strengthening international security. Furthermore, in Article 24, paragraph 1, it states that "the common foreign and security policy is subject to specific rules and procedures. It is defined and implemented by the European Council and the Council. " If national governments still exercise independent control over the issues of foreign and defense policy, they are collaborating to develop a foreign policy and security policy (CFSP) and it is the Council which is the main part of this governmental cooperation. Thus, Article 215 TFEU authorizes the Council to adopt, by qualified majority, trade restrictive measures on the proposal of High Representative of the Union for Foreign Affairs and Security Policy and the Commission. The EU is endowed with some diplomatic actions means.This possibility of sanctions is part of the will to implement a common diplomatic line. However, it remains subject to the agreement of the States, through the specific competence of the Council on this issue. Indeed, unlike the trade measures, measures falling within the CFSP is not an exclusive competence of the Commission and remain subject to the vote of the member states. Therefore, it's in a harmonization of integration dynamic that is developing the town safe online. As such, the Commission developed in 2003, the strategy of the European Union against the proliferation of weapons of mass destruction, called "WMD strategy." In this document, the EU identifies the proliferation of weapons of mass destruction and dual-use technology and knowledge, as a growing threat to peace and security. This strategy recommends a strengthening of multilateralism based control of a multilateral regimes such as Wassenaar. It also advocates using sanctions as part of international law, including Chapter VII of the UN in cases of serious failure. Finally, in paragraph 30.) 4) of Chapter III, it intends to "strengthen policies and practices on export control." This strategy lays the political foundation, more than legal, control of dual-use goods. Indeed, it is already preceded by several regulations in this field, including Regulation 1334/2000 but this control as an anchor of the Union's priorities. This document follows the Thessaloniki action plan in June 2003 which sought, among others, "to strengthen the capacity of [the] Union to act as a coherent and unified power in the international system and respond effectively to challenges of globalization and interdependence ". This overall action plan and the specific strategy, reflect the commitment of the board (intergovernmental body) to include the security aspect at the heart of EU policies. These texts serve as policy framework for EU action in security matters. They are also mentioned as one of its recitals by the Commission when drafting the regulations governing the control of dual usage36. If the ECJ had refused in 1997 to consider an export control policy based both on trade and security powers of the Union, the framework established by the Council, through these strategies, allows inducing a policy control the commercial legal bases and at the diplomatic and security framework. Thus the regulations for control are based on the European commercial law and are part of an inter-governmental security policy within the Union. In addition, the common position allows to compel member states to fulfill their commitments by exposing them to political and diplomatic sanctions. - The Russian embargo It is within this political will that Member States, through the Council, have decided to develop a system of specific and binding sanctions on EU exports to Russia. Regulation (EU) No 833/2014 of the Council of 31 July 2014 concerning restrictive measures in view of the actions of Russia destabilizing the situation in Ukraine, testifies to the care of these issues at EU level Thus, following the events that occurred in Ukraine, the EU has agreed to establish diplomatic sanctions against Russia. After freezing the assets of senior Russian officials, the EU adopted a more restrictive sanctions battery. She desired to affirm the consistency of his diplomatic vis-à-vis Russia policy. Instead of taking sanctions through the UN (impossible given the Russian veto), or unilateral, Member States preferred to adopt a common line under the EU seal. Regulation No 833/2014 has come punish Russia by preventing Community exports of war material and dual-use goods. This embargo was made under Article 215 TFEU and Regulation 428/2009, it will be presented later. Thus, the EU, through these trade and security sanctions, affirmed its commitment to a coherent diplomacy at EU level. Control or even ban the export of dual-use goods is a tool mobilized by the EU in its trade and diplomatic policy. It should be noted that the EU had already adopted legislation to ban the export of dual-use goods to countries deemed sensitive. - Other embargoes Diplomatic relations of the member states with countries like Iran and North Korea, had led to the adoption of common positions determining the sanctions had resulted in export restrictions regulations. Thus the Common Position 2007/140 / CFSP of 27 February 2007 concerning restrictive measures against Iran was followed by Council Regulation 423/2007 of 19 April 2007 prohibiting "sell, supply, transfer or export, directly or indirectly, goods and technology listed in Annex I of Regulation 1334/2000. " Regarding North Korea, the Regulation No 329/2007 of the Council of 27 March 2007 which came prohibit such exports. The Member States have therefore prohibited exports based on previous regulations that define and categorize dual-use goods and control category and export at Community level. The Council regularly reference base and the implementation of these sanctions on the standards they set. - A specific regulatory framework A common control field through Appendix I The European Union, in its desire to create a consistent and harmonized customs area, has implemented several systems of standards and control. The goal was to successfully implement unified regulatory frameworks governing all transactions within and outside the EU. To this end, it developed regulations to generalize a number of practices and methods of control of dual use goods. The implementation of this common framework is built step by step in order to arrive at the most comprehensive regime, the most comprehensive and most efficient possible. To this end, several regulations came frame the definition of the concept of dual-use goods and its scope. It is these rules and the scope of goods and practices they surround that it is now to study since they are the basis for the previously mentioned policies. Although more descriptive, that party is required to better understand the operational reality of this control. - The Regulation 1334/2000 and Joint Action 2000/401 / CFSP This regulation was part a result of Regulation (EC) No 3381/94 which already instituted a dual-use goods control regime. Denounced by the Court in cases from 1995 for its trans-pillar legal basis and its excessive complexity, this plan was therefore abandoned and replaced in 2000 by that regulation. This was intended to harmonize the different arrangements until then. The ambition was, in fact, make this control in place at the time of COCOM, homogeneous at EU level. It reflected the desire on the part of Member States to comply with their international commitments and to effectively monitor transactions the European Community and third countries. The Regulation has sought to give a wider definition of goods falling within the category of dual-use goods returning member countries in its Annex I40 which lists all goods subject to such control in a comprehensive ambition. This note listed the property by international control regimes (including the Wassenaar Arrangement) at Community level is the basic list of controlled items, divided into ten categories. However, the European legislature, in the interests of efficiency, has also left the freedom to member countries to control property not included in this list at their discretion is the "catch all" clause, whose effects will be detailed posteriorly. The EU is also committed to cover all export processes by including intangible exports to third countries. Thus, transactions by e-mail, fax or phone fell under the control established by that regulation. This target controls the dual technologies, defined as "specific information necessary for the development, production or use of a product." This knowledge does not necessarily exist in physical form, they can be exported so dematerialized to third countries. The Joint Action of the Council of 22 June 2000 2000/401 / CFSP concerning the control of technical assistance related to certain military end-uses has complemented the Regulation 1334/2000. She submitted "the technical assistance provided outside the European Community by a natural or legal person established within the European Community" to controls when it is intended to contribute to an activity relating to weapons of mass destruction or some military end-uses. The drafting of this article has covered the transfer of technology induced by technical assistance, even if they involve cross-border movements of personnes45, that did not allow the Regulation 1334/2000. In 2000, the EU therefore has, through these texts, monitoring instruments that enable it to control a large number of activities, goods and transactions in the control of dual use goods. - Redesign - The Regulation 428/2009: transit, brokerage The continuous extension of the general control framework The Regulation 428/2009 came repeal Regulation 1334/2000 and resumes its provisions while adding new ones. The interest of this particular reform lies in redefining certain types of activities related to trade in dual-use and updating of the Appendix I, Basic control of the Member States, to technological innovations in field. The goal was to maintain effective control by taking account of new goods and practices beyond the previous regulation, yet extremely sensitive.
This revision has introduced transits of dual-use goods to controlled activities. Article 6 therefore states that a Member State may prohibit the transit of such goods if they are likely to be listed in Annex I (update) or if part of the measures referred to in Articles 4 and 8. These goods are controlled because of their presence on the territory of the European Community, it does not have to be exported from one member country. It is therefore an extension of the scope of the Community control and extensive reading of territoriality of its jurisdiction.
The regulation extended the control to the provision of services related to dual-use goods. Article 7 allows control of supply of services, provided it does not involve cross-border movement of people. So extensive control to those activities related to the export of dual-use goods brokerage is more precisely controlled in the name of Article 5 of the Regulation which defines it as such: - The negotiation or transaction management for the purchase, sale or supply of dual-use items from a third country to another third country or - The sale or purchase of dual-use items that are located in third countries for their transfer to another third country. That is to say, an entity or a person established within the EU organizing a transaction between non-EU States are likely to be subject to this control. The property was not physically need to transit through Community territory as long as the control is for the provision of a service and not the property in question. This is also a specific brokerage authorization is necessary, not an export license. This control is made possible by the territoriality of the service, but if the entity is established in a third State, the EU has no competence.
Finally, the regulation came clarify the concept of intangible exports of dual-use technologies. Indeed, it has been difficult to locate with certainty the destination of some of these exports, especially email. This is why the new Regulation 428/2009 clarified the definition of intangible exports by including in its definition, its Article 2.2 iii, action to "available in electronic form of software or technology for natural or legal persons [...] outside the community. " Therefore all dual technologies made accessible to non-EU players via internet or intranet server is reviewable. It is an extremely extended control field.
In the interests of efficiency and consistency, the EU has committed several upgrades of control framework, the last being that of 2014. After the Council of Europe has issued a positive opinion to the strengthening of export controls November 21, 2014, Regulation No 1382/2014 has modified the regulation 428/2009. In its opinion, the Council stresses the need to continue the efforts hitherto provided for controls of intangible exports, particularly on technologies, and include technologies for monitoring and information to the inspection system. Thus, the resolution of 22 October 2014 issued a "consolidated and updated version" of Annex I of Regulation 428/200949. Now, therefore, goods related to information security are part of Annex I, Category 5, Part II, and are, as such controlled by Member States and subject to licensing. This is where the challenge of these various lists and regulations discussed so far. They are the basis for Member States to put in place a control system which results, inter alia, the specific allocation of licenses for transactions related to goods listed here. Thus, if it is necessary to have an idea of different goods and activities subject to this control and the highly evolutionary nature of this base, it is now to focus on the control procedures that result - Both the EU and harmonization of national procedures vector The only harmonization of the classification of dual-use goods does not constitute a sufficient guarantee and necessary for effective harmonization of control. It is for this reason that the EU, if it is based on the Wassenaar Arrangement to determine the list of goods which it submits to control, heard equip Member States of common procedures. The aim of European legislation is therefore "to establish a common control system and harmonized control policies." To this end, it has established a harmonized mandatory export authorization procedure.
- Harmonize authorizations for exports to third countries A standardization of the licensing system was needed. Indeed, the EU must meet its business objectives of facilitating the free movement of goods and free trade. A national particularism in the export licensing would create administrative complications exports, not to mention the security risks already mentioned above. The establishment of a common system of licenses allowed more fluid exchanges and to provide guarantees to producers. Also, a license issued in one Member State will be valid in the rest of the Union (Article 9.2 Regulation (EC) No 428/2009). This universality of licenses involves framed attribution rules. The Regulation provides for specific types of licenses based on practice and exporters profiles, always with the aim of facilitating trade.
This is the most classic form of licenses, it represents almost all of the 4000 annual requests processed by the Dual Use Goods to Service (SBDU) It allows a specific exporter to carry out the exports linked to a specific operation (a or more properties to a recipient or end user in a third country). Under Article 9 of Regulation No 428/2009, this license is granted by the national authorities. It shall disclose the end user, the country of destination and the end use. The volume (limited), value (limited) and nature (its class within the meaning of Annex I) of goods shall also include the authorization to allow customs controls facilities. Furthermore, the Member State may require an end-use declaration by the recipient of a third country, even though its own law does not require it. This process allows a procedural harmonization, which tends to exceed the framework of the Union. However, obtaining this license is administratively cumbersome process (times 60 days in March 2012, according to figures from Double Use Goods in service, the Directorate General for Enterprise). In addition, a license is valid for a specified period, four months in France. Also, there are other licensing regimes to facilitate exports in terms of the risks.
As individual licenses, those licenses are granted to a particular operator. They are distinguished by their less binding. However, they are less regularly assigned: forty of these licenses are awarded annually in France by SBDU. But they allow regular exporters to overcome recurring administrative constraints. So this is an authorization granted to one specific exporter for a type or a specific category of dual-use goods. The authorization is valid for exports to one or more users / specific final recipients and considered as non-sensitive, in one or more specified third countries of destination, a member of the non-proliferation regimes. Moreover, such a license shall have a minimum validity of 12 months and can be established without limit of value and quantity. But the EU has gone further by setting up wider licenses for exports to the object and specific destinations.
This is an export authorization for certain countries of destination available to all exporters who respect its conditions and requirements for use as listed in Annexes IIa to IIf Regulation (EC) 428 / 2009 modified. So these are licenses more easily and for general cases. Instead of individual licenses, these licenses are part of a pre-established framework. The purpose of these licenses is to facilitate exports to countries considered safe destinations and predefined property. They make more flexible and modular controls by reducing license application procedures. They also have some diplomatic dimension through the definition of these secure destinations. In fact, be on the lists represents a major strategic and economic interest to the EU partners who see the exchange of sensitive goods and technology facilities. There are six community and general licenses, and each sets specific plans. The license covers most goods, almost all the property referred to in Annex I, thus applies to certain countries (7) parties to the Wassenaar Arrangement and the EU's major trading partners (Australia, New Zealand, Canada, Norway, United States of America, Japan, Liechtenstein). This license, the Community General Authorisation EU001 (CGEA), refers to Appendix II of the amended regulation 428/2009 listing the goods concerned (Annex I is not the most sensitive goods, of Annex IV) . The most circumscribed licenses in some situations (temporary exports for exhibitions and fairs, Community General Authorisation EU004) or categories of goods (Telecommunications, Community General Authorisation EU005) apply to a larger number of countries, up to 24 (including Russia, India and Ukraine). So it is a custom control that the EU intends to implement, according to their commercial and security interests. Thus, the Commission recently declared to be favorable "to a possible introduction of new General Export Authorisations of the Union, which can facilitate low-risk trade in the interest of all European companies while maintaining the high level of effective controls. " These licenses are part of a harmonized system of export licensing procedures for the whole EU area which allows the realization of a commercial and concerted policy, respecting the economic interests of Member States. Thus, the seven countries involved in the EU CGEAs 001 represented, in 1998, during the discussions on the reform of the Community system, over 70% of exports to third countries of goods and dual-use technologies alone. In 2012, it is still the most general license requested by exporters. - Intra-Community trade Although the majority of dual-use goods is likely to be exported without control from one Member State to another, the goods listed in Annex IV require obtaining an export license issued by the authorities nationales57 . This additional restriction then calls the completion of the internal market in 1993 had resulted in the removal of the majority of internal border controls within the EU area. So this is to remember that if the EU is a customs union, Article 36 TFEU allows the "prohibitions or restrictions on imports, exports or goods in transit justified on grounds of [...] public safety" . Thus, Annex IV of Regulation No 428/2009, be updated by Regulation No. 1382/2014, lists the most sensitive items in Annex I. That is to say, the goods in stealth technology, the Community strategic control (explosives boot, encryption) of the MTCR technology (Missile Technology Control Regime), or the convention on chemical weapons and technology NSG (Nuclear Suppliers Group ) 58. It is for the most likely to be diverted for military purposes as goods exports are subject to licensing. However, unlike exports to third countries, there are no customs formalities for intra-Community trade. That is to say the achievement of control customs. It is therefore a less supervised control regime than that applied to exports to third countries but which reflects a community will strictly supervise the exchanges, be they intra-Community. The inspection system is therefore based on a threefold process of trade facilitation or increased control, through the three annexes, the four types of licenses and the three destinations (EU / convergence zone / the world). The sensitivity of the goods and technology is determined both by itself, and from the destinations, which gives four case sensitivity (the lightest to the darkest in the following table). It is also to re-specify that certain third countries not concerned by the EU001 CGEA are the subject of some community general licenses less comprehensive. The Regulation 428/2009 is organizing a Community regime for dual-use export control based on "a common control system and harmonized policies for enforcement and monitoring in all Member States" (Recital No 4 of Regulation 428 / 2009). But the rules for implementing the controls organized by these regulations within the discretion of Member countries. The Community Regulations lay down a harmonized control framework but, in the absence of a Community administration, the execution of it is the prerogative of Member States. While the establishment of a Community policy monitoring and the design of a harmonized framework intended to avoid the existence of differences among member countries detrimental within a free trade area, the lack of a supranational entity of execution may be hidden. In this case those are the states that are implementers of this policy. As such, they therefore retain some room for maneuver that is now to evaluate. The application of the regulation of dual-use goods - The "catch-all clause" This rule contained in Article 4 of Regulation No 428/2009 changed the result behind the transposition into EU law: Directive No. 7 of the MTCR :
This directive MTCR, published at the address http://www.mtcr.info/french/leslignes.html excludes aircraft piloted by man. This does not apply to all "aircraft" as defined in Regulation No 428/2009 changed since the civil helicopter (even mild), capable of depositing loads in one spot, the subject of a text taken application of Regulation No 428/2009 as amended, which is the decree of July 31, 2014.
This "catch-all clause" ainsin has been extended to all the property listed by other existing non proliferation of weapons of mass destruction and relates only to goods which could misuse their purely civilian use to design, produce or use weapons of mass destruction, ie nuclear, chemical or biological weapons and their means (air or underwater). It does not apply to property commercially available and usable for terrorist purposes: butane gas, ammonium nitrate, potassium chlorate ... etc. Een European Union, Having recitals Nos 4 and 8 of Regulation No 428/2009 as amended, the "catch all clause only" covers only goods which could misuse their purely civilian use to design, produce or use weapons of mass destruction, ie nuclear, chemical or biological weapons and their means (air or underwater). It does not apply to goods commercially available and usable for terrorist purposes such as butane gas, ammonium nitrate, potassium chlorate etc ... In France, the texts adopted under Articles 4 and 8 of Regulation No 428/2009 modified only concern civilian helicopters (even mild), capable of depositing loads in one spot and tear on products and riot control agents, which in high concentrations are equivalent to real chemical weapons. For the rest, the application of the "catch-all clause" is left to the discretion of the SBDU engineers who have to deal with hundreds of "unlicensed files" and that capture the Interministerial Committee on dual-use goods for fear misuse for malevolent purposes of certain free goods for export. Many exporters do indeed want to confirm the SBDU that their merchandise is free export awaiting loading by plane or by boat, and are in response, several weeks after the procedure, an export ban without giving reasons preventing them to honor their contract. Quite often, the export ban and decided arbitrarily by the SBDU as result of requests from the Customs controllers that prevent trucks from passing through fear of strategic materials, while the equipment in question is free to Export and no justification is provided to the person concerned. In the US, the rule for civilian goods that could use a malicious hijacking is very explicit and contrary also covers property cicils likely to undermine the security of the US. The US authorities have in fact added many articles corresponding to assets not included in the lists of intergovernmental bodies to fight against the proliferation of weapons of mass destruction (cited above). The Commerce Control List (CCL) includes among its items referred Export Control Classification Number (ECCN), a series called EAR99 goods placed under control possible for security reasons. VIEW ECCN LIST (US) The US regulations for the control of dual-use goods, called Export Administration Regulation (EAR) states indeed that:
In accordance with the principle of catch-all clause, this list is not exhaustive, but nevertheless provides legal means to US regulators to prohibit more easily export products or equipment which might be diverted for terrorist purposes and punish retrospectively. For example, ammonium nitrate and ammonium nitrate-based fertilizers covered by Article ECCN 1C997 No. of American CCL because we know they can be used to make bombs using explosives Type ANFO (career explosives) filled in household cooking appliances (pots minute) or empty gas bottles; as happened in Corsica, Northern Ireland, Spain, Norway, boston marathon, the Middle East ... etc. However, given the risk of similar attacks, and knowing the dangers of ammonium nitrate for fertilizer and explosives careers (including tons accidentally exploded at the AZF factory in Toulouse), the "catch-all clause" do not allow France to prohibit exports of ammonium nitrate (or fertilizer rich in ammonium nitrate) to certain destinations without his services were informed of doubt on this auction to foreign. In addition, this non-explicit provisions would not give him the legal means to punish retrospectively, referring to the regulation of dual-use goods. illicit export of this product that was used to commit an attack abroad. We thus find an equivalent legal vacuum that of the time when French companies have provided impunity goods used to produce chemical weapons in the Middle East. France has been hit hard by terrorism on the evening of 13 November 2015. Since the attacks of September 11, 2001 in New York, the US is more vigilant than us on their exports of sensitive products by adding a list of goods "EAR99" to international lists. Moreover, US sanctions apply worldwide for violations of the Export Administration Regulation (EAR), ie if the Bureau of Industry and Security (BIS) has knowledge of exports or 'trading procedures without US license, concerning US-origin goods under control.These sanctions are very severe if these offenses are committed by affiliates of US companies outside the US, or if they are the subject of financial transactions carried out in dollars from US banks. Any turpitude of this kind, made in the US or elsewhere in the world, is the subject of registration of the person or the company concerned on a blacklist preventing it from bidding in tenders and prohibiting to buy American goods, creating him a bad reputation for its commercial business. This can also lead to a complaint in US courts involving financial or criminal sanctions; or a denunciation through diplomatic channels in the country concerned, with a view to prosecution by local authorities.
The correlation of dual-use goods with the customs nomenclature The field monitoring carried out by the controllers Customs through their computer system based on the commodity classification code in the Community Integrated Tariff eight-digit (TARIC), the last two complete code of the combined nomenclature of the customs tariff common. Correlation table between the codes of the Combined Nomenclature and the items of the list of dual use items was updated in July 2014 by the European Commission for the integration of TARIC codes in the BDU. It much more exhaustive than those of 2006 and 2012, the latter no longer has misclassification that led to the blocking of many European customs free export goods. This system is however not very reliable in so far as the correlation table BDU with those codes of the CN, which includes lines 6800 instead of 4200 in 2012, because each of them covers goods which have startégique any nature, which may further increase the risk of barriers to esportations The customs administration has used this correlation listing of the European Union to establish an information system with document codes, specific tariff provisions and additional national codes (CANA allowing operators indicate in their statements if the material within and outside of the BDU regulations, or if they are subject to restrictive export measures. This system theoretically allows customs authorities to control high technology products may be inspected at the export. The remote procedure DELTA (Online Clearance for Automated Processing) allows complete customs declaration formalities online. During the establishment of the export declaration, the operator must indicate in box 44 the appropriate code:
In the event that the goods are subject to national control measures on dual-use goods, the operator must also indicate in the box 44 export declaration document code corresponding to the authority used. This is the 2410 code for all licenses associated with CANA R 409 and R 410. Thus hundreds a year of "license-files" of goods having no strategic nature are treated by the service of dual-use goods, either because of untimely blockages by customs offices or by fear this inconvenience on the part of industrial if the tariff heading of a free well of export CANA referring to a paragraph of the list of BDU or property subject to restrictive measures. To avoid these disadvantages would require the European Commission created two subdivisions in all subheadings of the Combined Nomenclature may contain strategic goods: one that integrates the labels of dual-use or restricted to certain destinations and the other corresponding to free export goods. It should also communicate the characteristics of real-controlled goods in the Explanatory Notes to the Combined Nomenclature (CN). The CN subheadings containing the wording of paragraphs of dual-use goods then have a legal scope under General Note 6 interpretation of the Combined Nomenclature is reproduced below.
This integration of strategic goods in the Combined Nomenclature allow better information for operators on strategic products, particularly as the indication of SH6 subheadings of the Harmonized System codes Description and Coding System will become mandatory before the statements, in ICS and ECS safety messages in 2016, when the implementation of the EU Code. The french organization in control of dual-use goods Since the first reform of the former NWMO in 1995 and that of the transformation of the former NWMO SGDSN dependent on both the Prime Minister and the President of the republic, and finally the creation of the Interdepartmental Commission dual-use goods, the inter-ministerial body has no role of coordination of the ministerial action in this area. Following the engagement letter the Prime Minister of 21 June 2013, a policy report on the approximation of sensitive civilian and military technology transfers control devices was made by the Court of Auditors in January 2014. This share report finding that the French system is complex and rigid, and proposes the establishment of an Inter Authority. According to the report, due to the decrease in the budget devoted to defense, companies turn to advantage the production of dual-use goods. Therefore, He also considers it necessary to improve coordination and the overall management of sensitive transfers control procedures placed interdepartmental absent today in the control of French exports. According to the Court of Auditors, the creation of an authority invested with the Prime Minister, whose resources could be managed by the SGDSN would appear as an effective alternative to address these problems. "The authority would ensure the responsibility for the definition, guidance, and monitoring the applicable policy in this area. It would be responsible for ongoing evaluation of the control system to propose regulatory changes or the organization. It would ensure the piloting of various administrative arrangements involved in these areas. " She as an umbrella so all existing structures, without replacing them in the role of examining files and would act as a direct interface with the government. It would ensure a better distribution of authorization request files transfers between all institutions and better cooperation (between SBDU and SGDSN) for folders within a slightest difficulty. The most sensitive cases would however refereed by the Authority itself after consulting one or two inter-ministerial committees. The authority would also have the power to submit for approval to the Government the cases that require a political choice. According to the report, "with this organization, treatment of the simplest cases could be thinned, so simplified and faster, while calling records arbitrations could be treated at high level in a more timely." The proposals of the Court of Auditors have been the subject of an objection from the relevant ministries, including from the Ministry of Foreign Affairs, including the Department Laurent Fabius is an important political figure certainly does not take this that its services lose the prerogative of the President of the Interministerial Commission of dual-use goods, while the problem is not only a diplomatic nature. The services concerned - The dual-use service (SBDU) Licensing initially reported to the Department of Foreign Trade Securities (SETICE), depending Customs. Since the creation of the Department of Dual-use goods by an order of March 18, 2010, it is the Directorate General for Enterprise (former DGCIS since September 16, 2014) who is in charge of this mission. So there has been a transfer of powers from the Customs to the Directorate General of Companies. This transfer can be explained by the lack of engineers in the customs services in order to classify the products concerned. It therefore allowed the refocusing of customs duties and relieve small numbers of customs laboratory, the Service Commun des Laboratoires (SCL). Thus, when interest in the first stage of monitoring, licensing, it already appears that Customs is in a process of refocusing its tasks under the control of dual use goods. Since 2010 is the SBDU which is the first contact for businesses and the first player control. Its director has 18 agents including 7 engineers (against 3-4 prior to SETICE). This is nearly half of officers working to control over the entire territory. The role of SBDU lies in the license application review. It checks that the goods are indeed dual-use goods, the final destination country is not affected by restrictions, that the end user is trusted and that the license in question meets the torque produced-country- user corresponding thereto. You do not come back here on the different types of licenses but the SBDU and its teams of engineers and administrators who are the guarantors of this work of compliance of companies with EU regulations and measures adopted at national. The SBDU however supported by the services of various departments attended the Interministerial Commission on Property Dual-use. For example, the Directorate General of Armaments (DGA), which receives requests of export licenses for conventional weapons, will redirect manufacturers whose goods are more likely to be dual-use goods. - The Interministerial Commission of Dual-use goods (CIBDU) The CIBDU was established by Decree No. 2010-294 of 18 March 2010 establishing an interdepartmental commission on dual use goods. Under the decree, his presidency is held by a representative of the Ministry of Foreign Affairs (Article 4), the deputy director for strategic affairs. In addition, the agenda is set by the Department and its meetings are held at the Quai d'Orsay. However, its secretariat is provided by the SBDU and the commission includes representatives from many departments and ministries, including Defense, Customs, the Office of Atomic Energy, foreign trade or industry. In total, a dozen representatives of different ministries and departments coming together in this fee. The role of this committee, which meets monthly, is to study the most sensitive cases handled by the SBDU (20-25% of cases) or received by the various ministries. It then gives an opinion on the submission of an export license through. In addition, it is she who decides on the entry of goods into the control system through the "catch-all" clause.Each ministry expressed its position on the property in question and consensus is sought to stop a national position on the property concerned. However, the lines defended by each Ministry are not necessarily convergent, ains the SBDU primarily represents the interests of industry, while the representative of the Ministry of Defence is responsible to pay attention to possible risks of finding material exported from the France in front of the French troops on land operations and take into account the commercial requirements of industry. The interest of this committee lies in this meeting services to sensitivities to determine the most impartial possible online and consensus is generally reached easily. Thus, the national body is CIBDU reference to take a position on the most sensitive issues. It plays a political role, since it is at its level that are determined national general licenses or the scope of the clause "catch-all" which, as we saw in the first part, the agency specifically of interest nationals. Thus, in case of real lock on a file that is the political level that contrasts with the intervention of the Prime Minister. However, the issues involved remain fairly insensitive to the majority of changes. Indeed, the fight against the proliferation is an issue-partisan and has the Commission is therefore quite impervious service to alternations. Furthermore, the fact that the Foreign Ministry had hoped to chair reflects the diplomatic role that France intends to play this control. So his role was relatively central when defining sanctions against Russia and the Commission has been the most intense and shared discussions theater than usual. It seems also important to remember that the minister, Mr Laurent Fabius, has set the economic diplomacy as a priority of his mandate, evidenced by the addition of International Development on behalf of the Ministry. Therefore, the export control is more than ever at the heart of concerns that the Ministry intends to assume this presidency actively. The composition of this commission and interests are represented testify doubling the plural dimension of this control and the necessary cross its implementation. Thus, Customs, although only responsible for the effective control of exports, can not only ensure all requirements. However, its role remains crucial. - Customs services
There at the Directorate General of Customs and Indirect Taxes (DGDDI) an export control dedicated service: the prohibitions in section E2 office of the sub-directorate E International Trade. This service is responsible for the issuing of export licenses for many sensitive goods (weapons, explosives etc.), but since 2010 it is no longer in charge of dual-use goods. Only eleven of its agents is responsible for the regulatory oversight on the issue. However, the role of the administration remains important since customs is one of the privileged interlocutors of the industrial and commercial sector.
The primary role of Customs remains control of physical flows of goods. The first control is the ex-ante control during customs clearance, it is the most important because the first goal of the customs is to prevent sensitive goods to leave the country if they do not comply with regulations. The objective of Customs is to focus on goods that do not have a license. Yet only 1% of goods are subject to a documentary check, either from a control plan established by senior management or to the Comptroller of Customs initiative. Specifically, Customs checks the validity of the licenses, the nature of the goods, the declared quantity in volume and value. It conducts more control if the statement is false or if it considers that the goods are subject to review. The customs office has the authority to ask the company about the nature of the goods and its final destinationn, and possibly start a physical control of the goods. If necessary, he seized the section specialized in dual-use of common service laboratories (customs and Fraud Control) to whom he transmitted the invoice, packing list and, in case of physical control, documentation seized in the one of the crates, and quet photographs or sample of the merchandise
As part of a posteriori checks, regional investigative services (SRE) depending on the regional directorates have the opportunity to make inquiries on exports with retrospective effect for three years, but especially the National Directorate of Information and Customs investigations (DNRED), assisted by the General Directorate for External Security (DGSE), the General Delegation for Armaments (DGA) and the dual-use service that realizes the biggest investigations in relation to double assets use. Judicial Customs (SNDJ) may also investigate offenses under Article L 706-167 of the Criminal Procedure Code relating to technological espionage or illicit transfers as part of the fight against the proliferation of weapons of destruction mass. When in doubt about a transaction (the recipient, the couple country-product or the operator itself), the initiative of the investigation depends on the customs of the Interministerial Committee or information (DGSE DRM DNRED etc.). However it is the Customs which is primarily responsible for these investigations because it has exorbitant prerogatives of common law stemming from the Customs Code. Section 65 confers a right of communication and seizure of documents, Article 63b, visiting business premises and seizure upon the prosecutor's information, allowing significant flexibility of action. Finally, Article 64 allows the house search on order of the judge of freedoms. The Directorate General of Internal Security (DGSI) ISB integrates its mission to fight against weapons of mass destruction within the framework of the protection of heritage and economic states in its website:
This view from an intelligence service which officially is only for the "economic protection" of the country is quite surprising because the list of dual-use goods consists only of elements to make nuclear, chemical, biological, and their delivery systems; and non-essential goods to the French economy - The General Directorate for External Security (DGSE) The DGSE is clearer on the interest of the fight against the proliferation of weapons of mass destruction as it states in its website: "The intelligence action occurs throughout the growth cycle: upstream (anticipation and detection programs by analyzing various indices), during the crisis and in the period of post-crisis. In parallel, the DGSE monitors proliferation networks can be in contact with terrorist movements. The potential combination between terrorism and WMD represents an immediate threat against the security of France and its allies. In this case, the collection of intelligence and action obstruction require a very rapid response capacity, depending on the level the threat." - The Treasury Directorate General France is one of the Financial Action Task Force (FATF) is an intergovernmental organization created in 1989 by the ministers of its member states and whose secretariat is based in Paris. The FATF's objectives are the development of standards and the promotion of the effective implementation of legislative, regulatory and operational measures in the fight against money laundering, terrorist financing and other threats to the integrity of the system international finance. The Financial Action Task Force is a policy development body that works to generate the necessary political will to carry out the legislative and regulatory reforms in these areas. The FATF has developed a series of recommendations recognized as the international standard in the fight against money laundering, terrorist financing and proliferation of weapons of mass destruction. They are the foundation for a coordinated response to threats to the integrity of the financial system and contribute to the harmonization of rules worldwide. Published in 1990, the FATF Recommendations were revised in 1996, 2001, 2003 and most recently in 2012 to ensure that they remain current and relevant. They are intended to be applied by all countries. Among the recommendations of the FATF in 2013 in terms of financial sanctions, that concerning the fight against the proliferation of weapons of mass destruction in subsection C, paragraph 7 reproduced below:
Pursuant to this recommendation, the Ministèere Treasury Directorate General of Economy and Finance is in charge of financial blocking suspicious regarding esportation exports of dual-use goods. This administration indicates in its website:
Thus the role of the General Directorate of the Treasury is the control of financial flows from third countries for payment of French exports. DGT is thus competent to perform the freezing of financial transactions. Under Article L.562-2 of the Monetary and Financial Code, the Minister responsible for the economy, and by extension DGT may indeed
Thus, beyond the criminal sanctions already mentioned in the first part of this work, the French authorities can prevent the payment of a transaction already completed and sanctioned retrospectively. The Investment Office, the fight against financial crime and punishment of the DGT is the service responsible for the implementation of these sanctions. The funds are however not confiscated by the DGT but simply "stuck". The French operator, or on French soil, is punished simply unable to access capital paid for the targeted exports. The economic consequences for a company, however, are important because of the major cash holes that result. In case of doubt, the funds paid in advance or payment are not confiscated but frozen by banks by order of the General Directorate of the Treasury, which still presents a great danger for companies that do not know the rules well who can lose markets by not honoring their contracts or be in a financial position dificult not being paid for their sale. The situation is very difficult on the part of the authorities concerned if companies are struggling to prevent the departure of a product, material or equipment free export for fear of passing the material or stategic pending a possible decision applying catch-all clause that can take several months. This is an often overlooked aspect of control of operators which can cause forgetfulness paperwork and cause excessive gel certain transactions. Thus, through the action of these four specific services, it is quite clear that this is a complex administrative network and composed of many actors who is in charge of the implementation of this policy. Like any device of this type, complexity is sometimes blamed for its ineffectiveness and potential administrative and bureaucratic inconvenience it may cause. It is this balance that tries to draw the "policy report on the approximation of sensitive civilian technology transfers control devices and military" of January 2014 drawn up by the Court of Auditors, says "report Hespel" the name of the President of the mission.
The U.S. Government controls exports of sensitive equipment, software and technology as a means to promote our national security interests and foreign policy objectives More...
Previous situation In short historical overview of the fight against the proliferation of weapons of mass destruction, we can say that the awareness of technological espionage aimed at producing nuclear weapons began in the 50s when the former USSR conducted test of a nuclear weapon copied from Nagasaki and of superpower thermonuclear weapons tests obtained again from illegal transfers of US expertise, yet classified top secret. To fight against this disastrous technological looting from this new large nuclear power and given the existence of the "cold war" began in the first Berlin crisis (June 1948-May 1949), the USA, France , Italy, the United Kingdom, the Netherlands, Belgium and Luxembourg in 1950 created a committee to control or prohibit exports to countries under Soviet control, for civil use goods and technologies that could a militair use; ie to prevent the "Eastern countries" to gain strategic superiority against the United States of America and European countries. Thus these seven countries have established a Coordinating Committee for Multilateral exchanges (COCOM) which were quickly joined by Canada, Denmark, Germany, Japan, Australia, Spain, Greece, Australia, Portugal and Turkey. The work of the former COCOM, which was an "informal and secret" committee were so confidential that the embargo against the countries of the former "Soviet bloc" finally became inoperative. It was only during the 70s and 80s that Western countries have realized that with the development of German V2 missile technology of World War II, the USSR had managed to acquire missiles ballistic long-range and accurate, and that many other countries had copied them to produce Scud missiles. Similarly, Western countries were concerned about the nuclear tests carried out by the so-called at the time "the third world", and the use of chemical weapons produced by technology and equipment available for civilian use in international trade. Industrialized states have pulled together then reactivating the former COCOM, creating multilateral regimes to control proliferation of WMD and their delivery systems: (NSG, MTCR and AG) and an inviting many countries to sign the Non Proliferation of Nuclear Weapons (NPT). Despite all these precautions, it appeared at the time of the extraordinary advances in micro-article arrow and computer, as technological looting were only increase, not only in favor of the former Soviet Union but also many other "proliferating states". A short break vigilance in the fight against the proliferation of weapons of mass destruction came in the early 90s, after the fall of the Berlin Wall and the demise of the former Soviet Union, however, the European Union has seizure of the problem by creating a regulation directly applicable in the member states, given the legal weaknesses in dual-use goods control in each of these states, where legal proceedings against traffickers were widely contested. The dislocation of military assets of the former USSR (including nuclear), and the attack of September 11, 2001 in New York, followed by wars and actions of terrorism in the Middle East, led the industrialized states to increase their vigilance in the years 2000-2010 by the creation of the security initiative against the proliferation (PSI) and the implementation of embargoes against several non-democratic countries. They finally strengthened the legal bases their regulations as a result of Resolution No. 1750 (2004) of the UN Security Council. Current situation and outlook In France, the legal means to fight against the dual-use goods trafficking and the proliferation of weapons of mass destruction seem full, especially as the European Council Regulation No. 428/2009 as amended provides for a "catch-all clause" to prohibit the export of goods not included in the dual-use checklists or restricted to certain destinations. In fact, this provision consistent with the little French law (to be written) results in unwanted blockages from the service of the French dual-use (SBDU) when a company requests information on a project, or share Customs inspectors who have difficulty interpreting the lists of the subject property, or the part of the Directorate General of Treasury Ministry of Economy and Finance which orders banks to block payments or payments from the abroad (if in doubt about a transaction) for weeks waiting for the response of SBDU. In addition, the integration of references in the Community Integrated Tariff (TARIC) codes corresponding to articles and paragraphs lists of dual-use goods, or goods subject to export restrictions to certain countries, does not allow controllers Customs to know exactly what is covered in a subheading of the Combined Nomenclature of the Common Customs Tariff. The customs and criminal penalties are severe post if discovered misappropriation of sensitive goods and technologies, but it is difficult in practice to prevent illegal exports before they leave, or to oppose the clandestine operations brokering and transfers intangible technologies without effective intelligence means. In France, the coordination of control of dual-use goods and embargoes returns to the Ministry of Foreign Affairs as Chair of the Interministerial Committee on dual-use goods, but the problem is not just diplomatic. As noted by the Court of Auditors guidance report of January 2014, the intermistérielle should be coordinated at the level of the Prime Minister, ie the Secretariat-General for National Defence and Security (SGDSN), as before the first reform of the service in 1996 (ex-NWMO) which, after its powers defined by decree, was at the time responsible for coordinating intelligence. There is a growing risk of proliferation of weapons of mass destuction not only to non-democratic states, but also for the benefit of current major terrorist organizations that aim to invade Black Africa and the middle east, and destroy our civilization. The greatest current threat is building a nuclear weapon several tons with a few tens of plutonium 239 kilogrammmes recovered after the dismantling of the Soviet army or diverted by internal complicity in nuclear plants. This bomb would be embedded in a sea container to explode at sea and causing a devastating tsunami, or a truck that be stationed in a city to destroy.
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Updated 2018, April
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© Albert Castel Avril 2010 - Reproduction interdite
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