Licensing Procedures and Prohibitions

The key points in brief:

  • As explained above special exports or other actions require a license which has to be applied for and granted by the relevant authority prior to commencing this export or any other action
  • Beside an individual export license which entitles the exporter to commence the individual action described in the license the legislating and licensing authorities have issued general open export licenses which enable to export or commence other actions described there without the individual act of the license.
  • In special cases like an individual export of a sensitive good for which a license is not required and especially if the exporter is uncertain whether a license is required all licensing authorities offer the possibility to apply for a decision that no license is required.

Explanations:

If an export or any other action which is intended by the exporter requires a license, it is possible to apply for this, in most jurisdictions online based. It is important that a license has to be applied for and granted prior to the license requiring action. Therefore, all administrative action should be commenced as early as possible to have it finalized in time.

Within a license proceeding the authority is going to check, whether the good can be exported to the individual destination in order to have it used by the recipient. This is the reason why it is necessary to provide an end-use-certificate issued by the recipient of the good in all proceedings of issuing individual export licenses.

The application for a license can only be made by the exporter, neither by any other member of the supply chain nor by a third party like a bank.

The license is issued by the administration by describing the individual action which is licensed. In case of an online tool of communicating with the authority a license is issued electronically and registered with the customs authorities.

There are many cases in which an export or another license requiring action by law needs a license but seems to be rather unproblematic, like exports from the EU into the USA or other countries with similar close relationships. Within the EU for those cases the EU and national authorities have issued union resp. national general export licenses (the EC Dual-use Regulation uses the term “authorisation“) which are addressed to all business in the relevant jurisdiction. To enjoy the benefit or such a general export license it is necessary to comply with all conditions set up in the license. To use such a license, it is sometimes necessary to register before or even within a time limit after the export and declare in the course of the export that such a license is used. In this case, an individual export license is not necessary / not possible. General export licenses make exporting life for companies easier as no individual administrative action is necessary and no individual end-use-certificate has to be obtained by the recipient of the goods.

In the USA, Open general export licenses are called License Exceptions. The system is similar. Such a license exception allows to export or reexport under stated conditions, items subject to the EAR that would otherwise require a license based on the ECCN and destination.

Finally there are situations thinkable in which the good that is intended to be exported seems to be sensitive and the exporter is not sure whether the good is listed. In those cases it is possible to let this question be clarified by the authority in charge. If the result is that the good is not listed the authorities decision is called in Germany “advice on the list of goods”.
Alternatively it is possible to ask for a confirmation that a whole export process is not licensable. In this case the licensing authority not only checks on the listing of the good but as well on the kind of the recipient and the intended end-use. If the conclusion is that the intended action does not need a license, this certificate is called a no-license-required-certificate.

In U.S.-Law it is possible that a good is not listed (EAR99) but (as they are nevertheless “items subject to the EAR“) still requires a license in special cases when the export is to an embargoed country, to an end-user of concern, or in other cases.