New General Export Authorizations simplify exports of military and dual-use items

On 15 January 2025, several national measures to facilitate the export of military and dual-use items and to streamline export control procedures will come into force, which were announced by the Federal Office for Economic Affairs and Export Control (Bundesamt für Wirtschaft und Ausfuhrkontrolle – BAFA) and the Federal Ministry for Economic Affairs and Climate Action (Bundesministerium für Wirtschaft und Klimaschutz – BMWK) in a joint press release dated 13 December 2024. The measures concern the export of military and dual-use items. To speed up and optimize procedures, the scope of several General Export Authorizations (GEAs) are expanded and two new GEAs issued.

GEAs are a special form of export authorizations. They have the same effect as other export authorizations, but do not have to be applied for. Instead, GEAs are issued ex officio and have the effect that all exports that meet the requirements of the respective GEA are automatically authorized. The exporter must only register with BAFA as a user of the GEA. The possibility of using a GEA benefits the exporter in terms of being able to deliver immediately and planning security.

Military items: Extension of GEAs No. 25 and No. 33

In the area of military items, the scope of application of GEAs No. 25 (special case groups) and No. 33 (export and transfer of other military items) has been extended.

In GEA No. 25, case group no. 4.19 is extended to include items that are exported or transferred as part of an enhancement measure (Ertüchtigungsmaßnahme) of the German Federal Government, provided that the export or transfer takes place on the basis of a contract existing at the time of the export or transfer in connection with this enhancement measure and the connection between the export or transfer and the enhancement measure is apparent from the contract on which the delivery is based through a reference to the specific enhancement measure or, if this is not the case, this has been confirmed by the competent German federal ministry. While regular reporting on the use of GEA No. 25 is generally waived, the reporting obligation for the (extended) case group no. 4.19 is maintained and the reporting period is also changed from six-monthly to monthly.

In GEA No. 33, under No. 4, the scope of authorized items is extended to include items classified under 0001 to 0003a of Part I Section A of the Export List (Ausfuhrliste), so that these can now also be transferred or exported to the destinations listed under no. 5.2 (the customs territory of the European Union, Iceland, Liechtenstein, Norway and Switzerland) without an individual export authorization.

These procedural simplifications in the area of military items are also intended to strengthen European cooperation, for example projects within the framework of the European Defense Fund, as well as international cooperation between companies in a group of companies on research projects.

Dual-use items: Extension of GEA No. 13

Like case group No. 4.19 in GEA No. 25, case group no. 4.24 in GEA No. 13 (export of certain dual-use items in certain case groups) is extended to the effect that also dual-use items may now be exported under the GEA if they are exported as part of an enhancement measure of the German Federal Government, provided that the export takes place on the basis of a contract existing at the time of the export in connection with this enhancement measure and this connection is apparent from the contract on which the delivery is based by a reference to the specific enhancement measure or, if this is not the case, this has been confirmed by the competent German federal ministry.

Dual-use items: Introduction of GEA No. 43

With GEAs No. 43 and No. 44, BAFA has introduced two new GEAs in the area of dual-use items.

GEA No. 43 authorizes the export of all items listed in Annex I of the Dual-Use Regulation (EU) 2021/821 (with the exception of items listed in Annex II Section I of the Dual-Use Regulation (EU) 2021/821) in the following cases:

· The items were initially exported from the EU with BAFA’s approval or under a GEA, and then imported or transferred to the customs territory of the Union for maintenance or repair. Now, they are to be re-exported without changes to their original performance characteristics.

· The items are to be re-exported in exchange for items of the same quality and quantity that were initially exported from the EU with BAFA’s approval or under a GEA and then imported or transferred to the customs territory of the Union for exchange, without changes to the original performance characteristics of the items to be exchanged.

As the retention of the items’ performance characteristics is a condition of applicability of GEA No. 43, re-export after technical improvements (upgrades) is not possible under GEA No. 43.

A further condition of applicability of GEA No. 43 is that the (re-)export is made to the same recipient and end-user as the initial export.

Furthermore, GEA No. 43 is only applicable to items whose original export was authorized no more than five years ago; if a GEA was used for the initial export, GEA No. 43 may only be used within five years of the export of the initially authorized items.

Authorized destinations under GEA No. 43 include all countries, with the exception of countries subject to arms embargoes, as well as Egypt, Afghanistan, Armenia, Azerbaijan, Yemen, Pakistan, Syria, Tajikistan, Turkmenistan and Uzbekistan.

In terms of content, GEA No. 43 is thus similar to GEA No. EU003, which is to be used with priority; however, GEA No. 43 has a wider scope of application than GEA No. EU003, both in terms of the range of items and the approved destinations.

Dual-use items: Introduction of GEA No. 44

The recently introduced GEA No. 44 aims to streamline intra-group exports of dual-use software and technology for data storage purposes.

It authorizes the transfer of category D (software) and E (technology) items under Annex I of the Dual-Use Regulation (EU) 2021/821, with the exception of items listed in Annex II Section I of the same regulation as well as software and technology related to items classified under numbers 4A005, 4D004, 4E001c, 5A001f and 5A001j of Annex I of the Dual-Use Regulation (EU) 2021/821, provided

· the software or technology is transferred to a server by means of electronic media pursuant to Art. 2 No. 2 lit. d of the Dual-Use Regulation (EU) 2021/821 exclusively for the purpose of data storage;

· the server is not located in country subject to an arms embargo, Egypt, Afghanistan, Armenia, Azerbaijan, China (including the Hong Kong Special Administrative Region), Yemen, Pakistan, Syria, Tajikistan, Turkmenistan or Uzbekistan;

· the server meets at least the minimum information security requirements for cloud services set out in the criteria catalogue C5 (Cloud Computing Compliance Criteria Catalogue) of the German Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik - BSI);

· access to the software or technology located on the server is only granted to natural persons within the customs territory of the EU; and

· these natural persons are employed by the exporter or by the exporter’s affiliated companies or by companies acting on behalf of the exporter or a company affiliated with the exporter, provided that these companies are established within the customs territory of the EU.

The use of GEA No. 44 is excluded under the conditions specified in no. 3.3 (in particular, knowledge of use for nuclear or military purposes, classification of the items as restricted (“Classified Information – For official use only” (“VS – NUR FÜR DEN DIENSTGEBRAUCH”) or higher); or knowledge of additional storage on a backup server that does not fulfil the relevant requirements).

Practical guidance

The extended GEAs No. 25, No. 33 and No. 13 will come into force on 15 January 2025 and are initially valid until 31 March 2025. The new GEAs No. 43 and No. 44 will also come into force on 15 January 2025 but are valid until 31 March 2026.

Exporters should review any license applications that have already been submitted to review whether they may use a GEA. If this is the case, export authorization applications that have already been submitted can be withdrawn and the items exported or transferred.