Export

Export – Definition, Legal Framework, and Significance

Die Export is a central concept in international trade and refers to the transfer of goods from the domestic market to foreign countries. In the legal context, export particularly encompasses all processes by which goods, technologies, software, or services are transferred from one customs territory to another, involving either physical transportation or cross-border data transmission. In Germany and the European Union, the concept is comprehensively regulated and subject to international, European, and national legal provisions.

Legal Definition of Export

National Legal Basis

Under German law, export is primarily legally defined and regulated in the Foreign Trade and Payments Act (AWG) and the Foreign Trade and Payments Ordinance (AWV) defined and regulated. According to § 2 Section 3 AWG, export is the transfer of goods, software, or technologies from the domestic market to a third country (outside the European Union). Export usually implies a switch of goods to the customs-free circulation of a third country, i.e., outside the EU customs territory.

European Legal Basis

Die European Union (EU) regulates export within the framework of the Union Customs Code (UCC), particularly in Articles 269 et seq. UCC. Accordingly, export means any transfer of goods from the customs territory of the Union to a third country. The relevant provisions place extensive obligations on exporters and provide for various control mechanisms.

Customs Law Perspective on Export

Export Procedures

Export is generally subject to strict export procedures. These are regulated under the Union Customs Code and the Export List. The key steps include:

• Export Declaration: Prior to the physical export, an electronic customs declaration must be submitted through the ATLAS export system at the relevant export customs office.
• Inspection and Control: The export customs office may conduct a goods inspection to verify compliance with the declaration and the observance of applicable export regulations.
• Exit Note: After the goods have left the customs territory, an exit note is issued, which serves as proof of the completed export.

Prohibited and Licensed Exports

Certain goods are subject to legal restrictions, especially under the goods list principle. Thus, according to the Foreign Trade and Payments Ordinance, the EU Dual-Use Regulation or pursuant to international embargoes, certain goods may be wholly or partially excluded from export or require an export license.

Legal Provisions on Foreign Trade

Goods Lists & Dual-Use

Die Export List in the appendix to the AWV as well as the Dual-Use Regulation (Regulation [EU] 2021/821), regulate which goods, based on their characteristics, intended uses, or countries of destination, are subject to special controls. Dual-use goods refer to items, technology, and software that can be used for both civilian and military purposes.

Embargo Regulations and Sanctions

For certain countries or target groups, the export of specific goods and services, or even all goods and services, may be prohibited. These embargoes rely on EU regulations or United Nations decisions to ensure international security.

Licensing Procedures and Control

Application and Review Obligations

For exports requiring approval, individual or general licenses must first be applied for at the Federal Office for Economic Affairs and Export Control (BAFA). BAFA reviews export applications especially from the perspective of security policy, foreign policy, and human rights criteria.

Monitoring and Sanctions

The monitoring of exports is the responsibility of various authorities, such as customs, BAFA, and the Bundesbank. Violations of export regulations—particularly unauthorized exports or avoidance of licensing requirements—are subject to monetary fines or criminal penalties under the Foreign Trade and Payments Act and can incur considerable sanctions.

Tax Law Aspects of Export

VAT Treatment

Export deliveries are exempt from tax pursuant to § 6 Value Added Tax Act (UStG) provided that it can be demonstrated that the goods have actually left the customs territory of the EU. Export is therefore VAT-exempt for the exporter in the exporting country, which must be documented by appropriate proof (e.g., the exit note from customs).

Importance of Export in International Trade

Basic Principles of the World Trade Order

Freedom of export is an essential element of international goods movement. Nevertheless, comprehensive control mechanisms exist worldwide to ensure security and order, as well as to fulfill international obligations, such as in non-proliferation regimes or to enforce embargoes.

Summary

Die Export is a multifaceted legal term that, in addition to the mere movement of goods, can also encompass services, technology, and intellectual property. Its regulation is determined by international, European, and national legal frameworks, primarily to serve security, control, and taxation purposes. Compliance with export control regulations is mandatory for economic actors as well as for private individuals engaged in international trade. Violations of export provisions can have significant legal and economic consequences.

See also:

• Import
• Export Control
• Customs Law
• Foreign Trade Law
• Dual-Use Regulation
• Embargo

Sources:

• Foreign Trade and Payments Act (AWG)
• Foreign Trade and Payments Ordinance (AWV)
• Union Customs Code (UCC)
• Value Added Tax Act (UStG)
• EU Dual-Use Regulation
• Federal Office for Economic Affairs and Export Control (BAFA)

Frequently Asked Questions

What legal requirements must companies observe when exporting goods from Germany?

Companies that wish to export goods from Germany must comply with a wide range of legal requirements. First, it must be determined whether an export license is required. This is particularly the case for so-called dual-use goods or armaments, to which the Foreign Trade and Payments Act (AWG) and the Foreign Trade and Payments Ordinance (AWV) apply. Furthermore, customs regulations of the European Union (Union Customs Code) must be observed, such as the electronic export declaration in the ATLAS system. Tax law provisions also have to be followed, especially those relating to VAT exemption for export deliveries according to § 6 UStG. In addition, embargoes and restrictive measures of the EU or the United Nations can prohibit or restrict certain exports. Companies are required to keep up-to-date with current sanctions lists. Violations of the mentioned provisions may result in severe fines or even criminal penalties.

What reporting obligations exist when exporting goods from the EU?

When exporting goods from the European Union, companies are required to submit an electronic export declaration using the ATLAS IT system at the competent German customs office, provided the value of the export shipment exceeds certain thresholds (generally from 1,000 euros or a weight of over 1,000 kg). In addition to the customs declaration, further reporting obligations may arise, such as a statistical reporting requirement to the Federal Statistical Office as part of foreign trade statistics (by submitting the so-called export notification under § 23 AWV). For certain goods, there is also an obligation to provide export licenses or supporting documents, such as certificates of origin or control certificates. Failure to fulfill reporting obligations or errors in doing so may be subject to administrative fines.

When is an export license required and which authorities are responsible?

An export license is required if goods are listed in the EC Dual-Use Regulation (Regulation (EU) 2021/821), the export list attached to the AWV, or other special embargo lists. For dual-use goods, the Federal Office for Economic Affairs and Export Control (BAFA) is usually responsible; for armaments, responsibility may lie with the Federal Ministry for Economic Affairs and Climate Action (BMWK) or the Federal Office for Export (BAFA). The requirement for a license must be checked in each individual case, as even seemingly harmless goods might be subject to licensing—such as in the case of re-exports or critical use in the country of destination. Moreover, international agreements such as the Wassenaar Arrangement may also affect licensing requirements.

What sanctions and embargo regulations must be observed in export transactions?

Exporting companies must observe extensive sanctions and embargo regulations of the European Union as well as international sanctions, especially those of the United Nations. These regulations may impose complete bans on trade as well as partial restrictions regarding individual persons, companies, or countries. Infringements of the ban on supplying sanctioned persons or states may result in serious criminal and administrative law consequences. There is also an obligation to pre-screen business partners against current sanctions lists (e.g., EU sanctions lists, US OFAC lists). In the event of an embargo, economic, technological, or financial services are often also restricted or prohibited in addition to the movement of goods.

What regulations apply regarding documentation and proof obligations in export procedures?

In the context of export procedures, companies are subject to extensive documentation requirements both vis-à-vis customs authorities and with regard to tax law evidence. Key export documents include the export declaration (usually electronically via the ATLAS system), commercial invoices, packing lists, and, if applicable, transport documents (e.g., Bill of Lading, Konnossement). For certain categories of goods, additional proof is mandatory, such as certificates of origin, import licenses from the destination country, or BAFA authorizations. Proof obligations are also relevant under tax law, as export is only exempt from VAT if an exit note, so-called ‘Ausgangsvermerk’, can be provided as proof. Documents related to export procedures must generally be retained for at least six years; tax-relevant documents are subject to a ten-year retention period pursuant to § 147 AO.

What legal consequences may arise from violations of export regulations?

Violations of export regulations can have severe criminal and regulatory consequences. In addition to the imposition of hefty fines under the Administrative Offenses Act (OWiG), intentional or grossly negligent conduct may also result in criminal penalties. The Foreign Trade and Payments Act (in particular §§ 17 et seq. AWG) stipulates prison sentences of up to 15 years for serious violations, such as unauthorized export of goods subject to export controls or embargo regulations. In addition, confiscation of exported goods and complete loss of all customs and tax privileges afforded may occur. Companies may also have their export rights revoked or be excluded from future licensing procedures.