Geopolitical developments have increasingly led to a situation in commercial law where it is sometimes necessary to comply with export restrictions when exporting goods from the European Union.
Section 4 of Germany’s Foreign Trade and Payments Act (AWG) provides a basis in commercial law for restricting legal transactions if this is necessary in order to guarantee public safety and protect foreign interests. Where such restrictions apply, exporting goods from the EU requires a relevant export license. An unclear legal situation thus warrants taking a closer look at whether export restrictions do in fact apply, or if it is possible to apply for a “negative certificate” (Nullbescheid), advises Michael Rainer, managing partner and point of contact for commercial law at MTR Legal Rechtsanwälte.
Given the rapidly changing geopolitical climate, it is not always obvious to businesses whether exporting into a particular country has the potential to throw up problems. It can be a good idea to seek clarification about the licensing situation from Germany’s Federal Office for Economic Affairs and Export Control (BAFA). Depending on the circumstances, an export license or a negative certificate can be applied for. By issuing a negative certificate, the BAFA confirms that there are no legal restrictions on exporting and that no further licenses are required.
It should also be noted, however, that a negative certificate is only effective for the specific circumstances on which the application is based. A change in circumstances – for example, the recipient or the goods intended for export change – generally necessitates reapplying for a negative certificate.
The BAFA requires certain information in order to be able to give a decision on such an application, including specifics relating to the goods and the recipient. Another important factor is the reliability of the applicant. The information provided as part of the application must also be comprehensive and accurate. Indeed, providing false information may constitute a criminal offense.
It is therefore advisable to consult with lawyers who are well-versed in the laws that govern foreign trade and payments any time legal uncertainties raise their head. They can facilitate communication with the licensing authorities and help prepare any applications.
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