Export of defence-related products

Large businesses

Self-employed

SMEs

The export of defence-related products is either prohibited, or subject to a prior ministerial authorisation, or not restricted at all if certain conditions are met. The type of restriction is dependent on the concerned category of defence-related products.

Restrictive measures (either a prohibition, or a prior authorisation) have as well been put in place for exports to certain countries.

Any application for authorisation shall be submitted to OCEIT using an available application form. The application will be processed within 60 working days from the day the file is complete. The individual authorisation is valid for 1 year, the global authorisation is valid for 3 years, renewable.

Who is concerned

Any exporter who wishes to export or re-export:

a defence-related product;
military equipment which is not on the list of defence-related products where:
- the exporter has reason to suspect that the equipment is or may be intended, on whole or part, to contribute to the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons, or other nuclear explosive devices, or the development, production, maintenance or storage of missiles delivering such weapons;
- the exporter has reason to suspect that the export or material affects or is likely to affect the national or external security of the Grand Duchy of Luxembourg or the safeguarding of human rights;
- the ministers have informed the exporter that the equipment may be intended, in whole or in part, to contribute to the development, production, handling, operation, maintenance, storage, detection, the identification or dissemination of chemical, biological or nuclear weapons, or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons;
- the buyer or destination country is subject to an arms embargo imposed by a decision or common position adopted by the Council of the European Union or a decision of the Organisation for Security and Cooperation in Europe (OSCE) or imposed by a binding resolution of the United Nations Security Council and if the ministers have informed the exporter that the equipment in question is or may be intended, in whole or in part, for a military end-use;
- the ministers have informed the exporter that the material in question is or may be intended, in whole or in part, for use as parts or components of defence-related products which have been exported from the territory of the Grand Duchy of Luxembourg without an authorisation or in infringement of such authorisation.

Any exporter who wishes to export or re-export a defence-related product to a country in respect of which restrictive measures are in place:

Prohibition

Shall be prohibited the export to a recipient located in a third State to the European Union of environmental modification techniques used for military or other hostile purposes and having widespread, long-term or severe effects as a means of causing destruction, damage or injury to any State, such as defined by the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, adopted on 10 December 1976.

Preliminary steps

An exporter who becomes aware that military end-use equipment not listed on the list of defence-related products, and he/she proposes to export, is intended, in whole or part to:

contribute to the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons, or other nuclear explosive devices, or the development, production, maintenance or storage of missiles delivering such weapons;
affect the national or external security of the Grand Duchy of Luxembourg or the safeguarding of human rights;
the buyer or destination country that is subject to an arms embargo imposed by a decision or common position adopted by the Council of the European Union or a decision of the Organisation for Security and Cooperation in Europe (OSCE) or imposed by a binding resolution of the United Nations Security Council;
be used as parts or components of defence-related products, which have been exported from the territory of the Grand Duchy of Luxembourg without the authorisation, or in infringement of such authorisation;

must inform the ministers who inform the exporter of whether or not to apply for authorisation.

In order to be able to submit the application electronically, the exporter must first make an express request (on free paper or by email) to OCEIT and get their approval.

Costs

Neither the application for authorisation nor the issuance of the export authorisation by OCEIT shall give rise to the levying of any taxes or fees.

How to proceed

Submitting the application

The exporter shall submit his/her application for an individual or global authorisation to OCEIT using the
application form.

The application is made by mail or electronically (if the exporter has previously obtained OCEIT’s approval).

The application (or the declaration) shall be signed by a person authorised to commit the applicant. By this signature, the applicant certifies the accuracy of the information provided in the application and that of the content of any documents attached to it. He/she undertakes as well to provide the goods concerned with a destination in accordance with his/her application.

Supporting documents

The supporting documents to be attached to the application for an individual or global authorisation are the following:

detailed explanatory letter of the operation;
end-use certificate (or, after an approval from OCEIT, an exporter’s commitment);
invoice / pro forma invoice;
sales agreement;
Air Way Bill (AWB);
international import certificate, or another official document issued by the competent authorities of the country of final destination of the good (except an exemption granted by the competent ministers);
recent extract from RCS (less than 3 months).

Deadlines for reply

Any application for an individual or global authorisation shall be acknowledged by OCEIT.

In case of an incomplete application, the applicant shall be informed of the need to provide additional documents and any consequences for the period for processing the application.

The application for authorisation shall be processed within 60 working days of the day on which the file is complete.

This 60 day period may be extended for a maximum of 30 working days. The extension and its duration shall be duly reasoned and notified by OCEIT before the expiry of the initial period.

In the absence of a reply within the period provided for, the application for authorisation shall be considered as granted.

Duration of validity

Authorisations shall be valid:

1 year for individual authorisations, renewable for a period of 6 months;
3 years for global authorisations, renewable for a period of 18 months.

Obligations

The exporter of defence-related products shall inform recipients of the conditions attached to the export authorisation, including restrictions, concerning the end-use or export of defence-related products. These conditions and restrictions must be reproduced in the contact or in any act binding on the parties.

The exporter shall, within 30 working days, inform the minister or the competent authority of the Member State from which he/she wishes to export defence-related products of his/her intention to use a general authorisation for transfer or export for the first time.

The exporter shall transmit to OCEIT, at the latest 10 working days after the expiry date, the obsolete authorisation which is in his/her possession.

The exporter shall report to OCEIT any loss of an authorisation document.

The exporter must comply with the special conditions contained in the authorisation.

The exporter shall provide OCEIT by 31 January of each year with information on exports made on the basis of the general or global export authorisation during the previous year. This information, summarized by country, specifies for reach recipient the following information:

the description of the defence-related products and their references in the Common Military List of the European Union or in the national list;
the quantity and value of the exported goods;
the dates of export; and
the end-use and end-user of the goods.

The exporter shall keep detailed and complete registers of operations carried out pursuant to the authorisation. These registers shall contain the commercial documents, such as invoices, manifests, transport documents or other shipping documents, showing the following information:

the description of the defence-related products and their references in the Common Military List of the European Union or in the national list;
the quantity and value of the exported goods;
dates of exports;
the end-use and end-user of the goods.

The exporter shall keep the registers for a period of 10 years from the end of the calendar year in which the transaction took place. He/she shall present them to the ministers at their request during that period.

The exporter shall provide, without delay, at the first request of the ministers or OCEIT, the elements and documents necessary to verify the conformity of the operation carried out or foreseen.

Litigation

In the event the authorisation is denied, a legal action may be lodged, by an Avocat à la Cour, against the administrative decision within the period of 3 months from the date of the notification of the administrative decision to the concerned person.

Sanctions

A prohibition (limited to 6 months or definite) or another restriction to carry out one or more activities, and/or the suspension for a maximum period of 6 months from the use of a general European Union or national authorisation, or a global authorisation, and/or a penalty payment (which cannot be higher than EUR 1,250 per day, but cannot exceed EUR 25,000) may be pronounced against anyone who:

refuses to provide the documents or other information requested of them by the ministers or OCEIT;
provides the ministers or OCEIT with documents or other information that is found to be incomplete or false;
impedes the exercise of the powers of the ministers or OCEIT;
does not follow the orders of the ministers or OCEIT.

May be punished by an imprisonment of 5 to 10 years and/or a fine of EUR 25,000 to EUR 1,000,000, anyone who:

is exporting defence-related products without having been granted the required authorisation or without respecting the prohibition applicable to the operation;
fails to inform the ministers where he/she becomes aware of or has reason to suspect that the products are or may be intended, in whole or in part, for one of the uses foreseen in Article 34 of the law of 27 June 2018.

May be punished by an imprisonment of 8 days to 3 years and/or a fine of EUR 5,000 to EUR 50,000, anyone who:

fails to provide OCEIT with the information concerning exports made on the basis of the EU or national general export authorisation or the global export authorisation.

May be punished by an imprisonment of 8 days to 5 years and/or a fine of EUR 251 to EUR 250,000 (which may be increased to 4 times the amount of the offense where the offense has resulted in a substantial financial gain), anyone who has failed to comply with a restrictive measure applicable in respect of a certain country.

May be punished by an imprisonment of 6 months to 5 years and/or a fine of EUR 7,500 to EUR 75,000, anyone who:

fails to keep the registers or does not keep them during the period of 10 years (starting with the end of the calendar year during which the operation took place);
fails to present the registers at the first request of the ministers;
omits, repeatedly or significantly, to fill in one or more of the mandatory information in the registers;
provides, in the context of an application for authorisation, information that is false or incomplete;
does not fulfil the commitments made in the declarations of use and applications for authorisation submitted to the ministers;
fails to provide information within the time limits and in the manner set out.

Review of the file

The ministers may, at any time, withdraw, suspend for a period not exceeding 90 days or restrict the use of the authorisations they have issued.

Such a review may happen in exceptional circumstances justifying urgent measures, for reasons of protection of the essential security interests of the State, for reasons of public order or national or eternal security, such as transport safety, storage safety, the risk of diversion, the prevention of crime, or for non-compliance with the conditions specified in the authorisation.