Definition and basics of export bans
Als Export ban is understood as a governmental measure that wholly or partially prohibits the export of certain goods, products, services, or technologies from a country. Export bans are part of the toolkit of foreign trade controls and are applied to protect national, economic, security policy, environmental, or international law interests. They may be temporary or permanent and are anchored in national as well as international law.
Legal basis
National law
Germany
In Germany, the main legal foundation consists of the Außenwirtschaftsgesetz (AWG) as well as the corresponding Außenwirtschaftsverordnung (AWV) which provide the central legal basis for export bans. The AWG comprehensively regulates under what conditions and for what reasons restrictions or bans on exports may be imposed. The AWV specifies these provisions and sets out in detail the goods and recipient countries for which export restrictions or bans may apply.
Austria and Switzerland
Similarly, in Austria with the Außenwirtschaftsgesetz (AuWG) and in Switzerland with the Güterkontrollgesetz (GKG) corresponding legal provisions exist, which provide for a similar control mechanism for export bans.
European law
Within the European Union, export bans are anchored in various legal acts. Central is the EU Dual-Use Regulation (Regulation (EU) 2021/821), which regulates certain goods with dual use (dual-use goods). Additionally, based on its sanction mechanisms, the EU can impose independent export bans on goods, technologies, or services against certain states or groups of persons.
International law and international regulations
International legal requirements, such as those established by the United Nations (UN), can obligate member states to implement export bans (embargoes). Such measures are, for example, adopted by resolutions of the Security Council and transposed into national or EU law.
Types of export bans
Absolute vs. partial export bans
- Absolute export bans prohibit the export of certain goods without exception and regardless of the recipient.
- Partial export bans are limited to certain countries, groups of persons, or purposes of use. For example, the export of a good may be prohibited to certain states but permitted to other destinations.
Product-related export bans
Some export bans are explicitly directed at certain products or categories of goods, such as:
- Military goods
- Dual-use goods (civilian and military uses)
- Cultural property
- Various raw materials (e.g. certain ores, rare minerals)
- Medical products (e.g. during pandemic times)
Situation-specific export bans
In crisis and exceptional situations, such as humanitarian disasters, pandemics or political crises, export bans can be imposed at short notice and in response to specific situations, for example to ensure domestic supply.
Objectives and purposes of export bans
The imposition of export bans typically pursues certain protective objectives:
- Ensuring public order and safety (e.g. control of strategically sensitive goods)
- Compliance with international obligations (e.g. embargoes, sanctions)
- Protection of public health (e.g. export of medical and protective equipment)
- Environmental protection and preservation of cultural property
- Safeguarding economic interests (e.g. protection against supply shortages in the home country)
Procedure and enforcement
Imposition and publication
Export bans are imposed by the competent authorities (e.g. Federal Office for Economic Affairs and Export Control, BAFA) by means of regulations, general decrees, or based on international agreements and made publicly known.
Approval requirements and exemption regulations
In certain cases, exemptions may be requested within the framework of an approval procedure. Such exemptions are often subject to strict conditions and are individually reviewed by the competent authorities.
Controls and sanctions
Compliance with export bans is monitored by customs authorities and other control bodies. Violations are typically penalized with severe sanctions:
- Fines
- Criminal consequences (imprisonment, confiscation of assets)
- Storage with the authorities and seizure of the relevant goods
Relationship to other foreign trade instruments
Export bans must be distinguished from other instruments of foreign trade law such as export licensing requirements, import bans, export controls, and embargoes. While export licensing requirements allow for examination on a case-by-case basis, export bans constitute a general prohibition.
Practical examples
- Arms embargo: The export of military goods to certain conflict regions.
- Technology export: Prohibition of exporting specific software or components to sanctioned countries.
- Cultural property protection: Protection of national cultural property from permanent export.
- COVID-19 pandemic: Temporary bans on the export of personal protective medical equipment to secure domestic supply.
Legal consequences of violations
A violation of an export ban is usually an administrative or criminal offense. Potential legal consequences include:
- Imposition of fines and monetary penalties
- Imprisonment in cases of particularly serious offenses
- Confiscation of goods exported in violation of the ban
- Potential civil law claims for damages
Distinction: export ban, embargo, and sanctions
An export ban is not equivalent to a general embargo, but is typically a component of an embargo. Embargoes are broader and may also include import, transit as well as financial transaction prohibitions, whereas the export ban is a specific measure within the foreign trade regulatory framework.
Literature references and further information
- Außenwirtschaftsgesetz (AWG)
- Außenwirtschaftsverordnung (AWV)
- EU Dual-Use Regulation (Regulation (EU) 2021/821)
- Website of the Federal Office for Economic Affairs and Export Control (BAFA)
- Relevant UN resolutions and EU regulations
This article provides a comprehensive legal overview of the term export ban, its legal basis, objectives, types, procedures as well as practical examples and legal consequences.
Frequently Asked Questions
Which authorities are responsible for monitoring and enforcing export bans in Germany?
In Germany, various authorities are responsible for monitoring and enforcing export bans, varying depending on the type of goods and destination country. The Federal Office for Economic Affairs and Export Control (BAFA) is central, issuing licenses for controlled goods and reviewing exports accordingly. In addition, customs (General Customs Directorate and main customs offices) play a key role in the physical inspection of outgoing goods at borders and airports. They ensure that goods subject to an export ban or without a valid export license are not exported. In cases involving defense or dual-use goods, the Federal Ministry for Economic Affairs and Climate Action (BMWK) and the Federal Foreign Office may also be involved. In the context of international sanctions or embargoes, specific activities are coordinated by authorities such as the Federal Office for Foreign Affairs (BfAA). Cooperation with international partner authorities is also important to jointly prosecute violations and establish structures for information exchange.
What are the legal foundations governing export bans in Germany and the EU?
The legal foundation for export bans in Germany is constituted by a variety of national and European regulations. Significant at the European level is the so-called Dual-Use Regulation (Regulation (EU) 2021/821), which controls the export of goods with dual use and sets bans or licensing requirements. Additionally, there are EU embargo regulations that establish specific export bans vis-à-vis certain states or groups, for example within the scope of international sanctions. Nationally, export bans are notably regulated by the Außenwirtschaftsgesetz (AWG) and the Außenwirtschaftsverordnung (AWV). These specify the authorities’ competences and concretely enumerate prohibited exports. Furthermore, special legal provisions, such as the Kriegswaffenkontrollgesetz (KWKG), may stipulate specific bans for certain categories of goods. International obligations, for example those arising from UN Security Council resolutions, are also implemented as binding under national or EU law.
What consequences can arise from a violation of an export ban?
A violation of an export ban can result in criminal prosecution as well as administrative fines. Sanctions depend on the degree of fault and the type of export violation. According to § 18 AWG, intentional or negligent violations can be punishable, especially if they threaten national or international security or evade international embargo measures. The penalties range from fines to multi-year imprisonment, depending on the severity of the individual case. In addition, administrative offenses according to § 19 AWG can be pursued, resulting in severe fines. Besides these sanctions, exporting companies may also face administrative measures such as revocation of authorizations, seizure of goods, or loss of trust for future export permits. In serious cases, listing in international sanctions lists and exclusion from public contracts is also possible.
How can a company check whether an export ban applies to their planned export?
Companies are obliged to independently verify whether their goods or the destination country are subject to an export ban or specific licensing requirements. Companies should first check whether their product is listed in the annexes of the Dual-Use Regulation or in special national legal provisions (AWV, KWKG, etc.). They should also regularly consult the EU’s published embargo regulations and the lists of goods maintained by the Federal Office for Economic Affairs and Export Control (BAFA). Careful review of the end use and the recipient within the context of an end-use statement is also essential. In case of doubt, early contact with BAFA or specialized legal counsel for export control is advisable. Public databases and checking tools, such as the so-called ‘ELAN-K2 export portal’ of BAFA, can support the research.
Under what conditions can exemptions from export bans be granted?
Export bans must generally be strictly observed; however, in individual cases, exemptions (so-called case-by-case authorizations) may be granted if this is expressly provided by law, regulation, or international agreement. Such an exemption usually requires a written application in which the exporting company details the specific public interest, humanitarian reasons, or international obligations. The licensing authority – usually BAFA – then assesses whether a balance between the grounds for the ban (e.g. foreign policy interests, security, human rights) and the asserted grounds for exemption justifies an exception. For goods subject to international embargoes, exemptions are very restrictive and usually require the consent of other ministries or even international bodies. The decision is always case-specific and subject to comprehensive legal and security-related review.
How long do export bans remain in force and how are they lifted?
The validity of export bans may be temporary or indefinite and varies depending on the underlying legal basis. Temporarily limited bans often result from international sanctions, which are regularly reviewed, extended, adjusted or lifted. Indefinite export bans mainly apply to goods or recipient countries considered consistently critical, such as military goods for which a permanent ban is foreseen. The lifting or modification of an export ban is enacted by a new legal act—such as through amendment of the relevant EU regulation or revision of national provisions (AWV, KWKG). A prerequisite for lifting is usually a changed assessment based on security policy, foreign policy, or human rights, expiry of the underlying international agreement, or a formal decision by the competent bodies, such as the European Council. Companies must always keep up to date with legal changes, as responsibility for correct application remains with them.
What legal remedies are available in cases of unlawful application of export bans?
If a company believes that an export ban has been wrongfully imposed on it or on a specific export project, several legal remedies are available. In administrative proceedings, it is initially possible to file an objection against a burdensome administrative act (e.g., denial of an export license) or to directly file a lawsuit with the competent administrative court. In urgent cases, an application for interim legal protection (e.g., by way of a preliminary injunction) can be filed to allow an export despite an existing ban, provided that particularly high economic harm or an urgent public interest can be demonstrated. In the case of EU law-based export bans, it can additionally be examined whether the European Court of Justice (ECJ) can be called upon, especially if fundamental Union rights or principles have been violated. As a rule, it is advisable to seek early legal advice from lawyers experienced in foreign trade law in order to realistically assess the prospects of success and to avoid formal errors.
