The Emergency Ordinance (OUG) no.43 on the control regime of operations with dual-use items was published in the Official Gazette (Part I) no.374 of 15 April 2022, with applicability from the date of publication.
The act regulates the control regime for operations with dual-use items as well as the national measures necessary to implement the provisions of Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast).
Please note that the regulations apply throughout the territory of Romania, as well as in the exclusive economic zone, free zones and free warehouses of Romania.
According to OUG 43/2022, they are established:
- a) the rights and obligations of natural and legal persons Romanian or resident in Romania who carry out transactions with dual-use items;
- b) the components of the national control system for operations with dual-use items;
- c) the measures necessary for the application of the provisions of the Regulation, including sanctions for non-compliance.
It is important to point out that the provisions of this Emergency Ordinance also apply to natural and legal persons who are not established or resident in the customs territory of the European Union and who carry out from the territory of Romania certain operations with dual-use items, in accordance with the provisions of Article 12 paragraph (2) and Article 13 paragraph (1) of the Regulation.
- Dual-use items = items, including software products and technologies, which may have both civil and military use, and which include items which may be used for the design, development, production or use of nuclear, chemical or biological weapons, or delivery systems for such weapons, including all items which may be used both for non-explosive purposes and to contribute in any way to the manufacture of nuclear weapons or other nuclear explosive devices.
- consignee – the first person outside Romania to whom dual-use items are shipped. If the dual-use items remain with the consignee, the consignee will be considered the end-user of the dual-use items;
- destination – the country to which the dual-use items are shipped;
- end-user – the last person outside Romania to whom the dual-use items are shipped. It can be the person who actually uses the dual-use items;
- end-use – the exact purpose for which the dual-use items will be used;
- third country – any country outside the customs territory of the European Union.
Thus, according to OUG 43/2022, the following operations with dual-use products included in Annex I to the Regulation are subject to the control regime:
- transfer within the European Union;
- brokerage services; • Technical support;
- transit. It is important to note that for operations with dual-use items subject to control, a license is required.
The types of licenses that are issued or established by the MAE through ANCEX for operations with dual-use products are the following:
- a) individual export or transfer license within the European Union;
- b) global export license;
- c) general national export license;
- d) license for intermediation services;
- e) license for technical assistance;
- f) transit license.
The license applications are completed and sent to the Ministry of Foreign Affairs MAE through ANCEX through the eLicensing computer system.
The applicant is responsible for the correctness of all data and information contained in the application and in the attached documents. MAE through ANCEX solves the license applications within 45 days from the date of receiving the necessary complete documentation.
This period may be extended by 60 days in the case provided for in Article 14 of the Regulation, after consulting the competent authorities of other Member States.
The validity of individual and global export licenses is for a maximum of two years from the date of issue.
The duration of the validity of individual and global licenses for large-scale projects is a maximum of four years from the date of issue.
Individual export license:
For the export of dual-use items listed in Annex I to the Regulation, as well as of dual-use items subject to control, an individual export license is required.
The issue of an individual export licence is conditional upon the presentation of an end-use declaration or, where appropriate, an end-use certificate or an international import certificate. MAE through ANCEX may exempt certain licence applications from the requirement to submit an end-use document. The conditions for the exemption by the MAE through ANCEX from the obligation to submit an end-use document shall be laid down in implementing rules.
It should be noted that the exporter is obliged to obtain from the foreign partner the delivery control certificate issued or certified by the competent authority of the country of destination or other supporting documents proving that the goods have reached their destination.
The delivery control certificate or the supporting documents must be presented to the MAE through ANCEX in original or certified copy, within 6 months from the date of delivery.
The exporter is obliged to send to the Ministry of Foreign Affairs through ANCEX the documents and information regarding the exports made on the basis of the individual export licenses, within the terms established by the application norms.
Individual export licenses may be subject to special conditions, imposed by the MAE through ANCEX, specified in the issued license.
Global transport licence
For the export of dual-use products included in Annex I to the Regulation, the MAE through ANCEX issues global export licenses, valid for the specified types or categories of dual-use products, in compliance with the conditions provided in the application rules.
In order to obtain a global export license, the exporter must implement an internal compliance program, hereinafter referred to as the PIC.
MAE through ANCEX verifies the implementation of the PIC. Within 30 days from the end of the calendar year in which the export took place, the exporter is obliged to submit to the Ministry of Foreign Affairs through ANCEX a report on the export operations carried out on the basis of global export licenses.
An individual license is required for the transfer within the European Union of dual-use items included in Annex IV to the Regulation.
The issuance of an individual license for transfer within the European Union is conditional on the submission of an end-use declaration.
The conditions regarding the exemption by MAE through ANCEX from the obligation to present an end-use document are established by application norms.
The applicant is obliged to obtain from the external partner the delivery control certificate issued or certified by the competent authority of the country of destination or other supporting documents proving that the goods have reached their destination. The delivery control certificate or the supporting documents shall be submitted to the MAE through ANCEX in original or certified copy, within 6 months from the date of delivery.
The applicant is obliged to submit to the MAE through ANCEX the documents and information on the transfers carried out on the basis of individual licences for transfer within the European Union, within the deadlines established by the implementing rules.
The validity of the individual licences for intra-EU transfers is a maximum of two years from the date of issue.
National General Export Licence
National General Export Licences may be established for the export of dual-use items listed in Annex I to the Regulation, with the exception of those listed in Section I of Annex II to the Regulation.
National general export licences may be used by all exporters resident or established in Romania, under the conditions mentioned in the licence.
The MAE through ANCEX may prohibit the exporter from using national general export licenses if there are reasonable suspicions about its ability to comply with such an authorization or legal provisions regarding export control.
The conditions regarding the prohibition by MAE through ANCEX of the use of general national export licenses are established by application norms.
The exporter who intends to export dual-use items from the customs territory of the European Union using the general national export licenses is obliged to register with the MAE through ANCEX before the first use of such a license. MAE through ANCEX notifies the exporter of the registration within 10 working days from the receipt of the registration request, subject to the restrictions provided in paragraph (4). The exporter using a general national export license shall inform the MAE through ANCEX of the first use of this license within 30 days of the date on which the first export took place.
Within 30 days after the end of the calendar year, the exporter is obliged to submit to the MAE through ANCEX a report on the export operations carried out in the previous year using the national general export licenses.
MAE through ANCEX may temporarily prohibit the exporter from using a European Union general export licence if there are reasonable suspicions about the exporter’s ability to comply with the conditions of the licence or a provision of export control legislation. The conditions for temporary prohibition by the MAE through ANCEX of the use of the European Union General Export Licences shall be laid down in implementing rules.
- Emergency Ordinance 43/2022 on the control regime for operations with dual-use products;
- Regulation 821/20-May-2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast).