Definition and Legal Basis of the Export List
The export list is a central tool of German and European export control. It defines goods whose export from Germany is subject to authorization and is based on national as well as international obligations. The list serves to implement security interests, comply with international agreements on the non-proliferation of weapons and sensitive technologies, and regulate foreign trade.
Legal Sources and Regulations
Foreign Trade and Payments Act (AWG) and Foreign Trade and Payments Ordinance (AWV)
The export list is integrated into German law by § 8 (1) sentence 1 of the Foreign Trade and Payments Act (AWG) together with the Foreign Trade and Payments Ordinance (AWV). It is set out as Annex 1 to the AWV, thereby forming a directly applicable legal basis. Through the AWG and AWV, the said list is continuously adapted to current developments in international regulations and political requirements.
Union Law Framework
In addition to national provisions, regulations of EU law are also decisive, particularly the Dual-Use Regulation (Regulation (EU) 2021/821), governing the control of dual-use goods at the EU level. For so-called dual-use goods, the requirement for a license applies under both EU regulations and the German export list.
International Obligations
Germany is bound by various international treaties and multilateral export control regimes, including the Wassenaar Arrangement, the Chemical Weapons Convention (CWC), the Nuclear Non-Proliferation Treaty (NPT), the Missile Technology Control Regime (MTCR), and others. The respective provisions are also reflected in the national export list.
Structure and Systematics of the Export List
Classification and Goods Groups
The export list is systematically structured according to goods groups and contains various sections relating to specific categories of goods such as military equipment, chemical substances, technology, software, and technical documentation. Classification follows a hierarchical numbering system, referred to as “AL” number (for example, “A001”).
- Section A: Military Equipment and Armaments
- Section B: Nuclear Technology
- Section C: Chemicals, Biological Substances
- Section D: Software
- Section E: Technology Transfer
In addition to the individually listed goods items, the export list also contains explanations, notes, and technical definitions that are crucial for its application.
Definition of Goods Requiring Authorization
The listed goods are clearly defined based on technical characteristics and purposes. Decisive are both the technical specifications (e.g., range, performance, ingredients) and the possible use in the military or dual-use sector. This includes, for example, missile technologies, NBC-relevant materials, certain electronics, software, or telecommunications equipment.
Scope of Application and Significance in Export Control
Authorization Requirements and Prohibitions
Anyone wishing to export goods covered by the export list generally requires an export license. Without such authorization, export is illegal and may result in criminal or administrative penalties (e.g., under §§ 17 ff. AWG). In Germany, the authority responsible for licensing and supervision is the Federal Office for Economic Affairs and Export Control (BAFA).
Additionally, further restrictions may arise from EU embargo regulations, sanction lists, or specific national rules, all of which are closely linked to the export list.
Preventive Effect and Due Diligence Obligations
The export list serves a preventive regulatory function and obligates companies to independently review their export processes (so-called due diligence duties or “Internal Compliance Programmes”). In cases of doubt concerning the interpretation of listing numbers, a binding inquiry can be submitted to the competent licensing authority (preliminary inquiry/tariff classification).
Practical Importance and Special Features
Dual Control and End-Use
For many goods, a dual control applies, especially if both EU legal and national rules are in effect (so-called dual-use goods). Furthermore, for sensitive goods, proof of end-use is often required to credibly demonstrate that the goods will not be used for unauthorized purposes.
Violations and Sanctions
Failure to comply with the export list is prosecuted as an administrative offense or a criminal act. Sanctions range from fines to imprisonment. Due to the high level of protection involved – such as public security, international relations, and compliance with international law – the control mechanisms are strictly designed.
Amendments and Updates
The export list is regularly updated to respond to technological innovations, new international decisions, or changed political conditions. Amendments are published in the Federal Gazette and must always be observed by affected companies.
Relation to Related Control Instruments
Distinction from Other Lists
In addition to the export list, further control instruments exist nationally and internationally, such as the US CCL (Commerce Control List), international sanction lists, or special goods lists resulting from embargoes. However, the national export list is the key instrument in German law for defining goods requiring export licenses outside the EU internal market.
Conclusion
The export list is a central element of German and European export control law. It defines in detail which goods are subject to export restrictions and thus ensures that foreign trade, security policy, and international law interests are preserved. Precise knowledge of and close attention to the list are essential for companies and export transactions in order to avoid legal risks and to comply with Germany’s international obligations.
Frequently Asked Questions
What are the legal bases regulating the export list in Germany?
The export list in Germany is primarily based on the Foreign Trade and Payments Act (AWG) and the Foreign Trade and Payments Ordinance (AWV). These national regulations are complemented by directly applicable EU regulations, notably the Dual-Use Regulation (EU) 2021/821, which legally governs the export of dual-use goods within the EU. The German export list is part of the AWV and contains a specific listing of goods whose export is either subject to authorization or prohibited. Moreover, international agreements, such as the Wassenaar Arrangement or the Chemical Weapons Convention, also influence national legislation and may lead to adaptations of the export list. Companies are required to check for each export whether the relevant good is listed in the export list, in order to fulfill their due diligence obligations and ensure legal certainty.
What obligations arise for companies from the inclusion of a good in the export list?
For companies, the inclusion of a product or technology in the export list means that a careful examination is necessary before export to determine whether the export requires authorization. If the good is listed, an application for an export license must be submitted to the Federal Office for Economic Affairs and Export Control (BAFA). The company is obliged to provide all documents and information required by BAFA for review. An export without the necessary authorization constitutes a violation of the AWG and AWV and can result in criminal consequences. Companies must also establish internal compliance structures in order to monitor and implement ongoing changes to the export list.
How is the export list amended and what legal consequences result from this?
Adaptation of the export list is carried out by ordinances of the federal government and is oriented both to international control regimes and to political developments. Amendments are published in the Federal Law Gazette and enter into force on the date of publication. This means that the affected companies and exporters must regularly check whether their goods are affected by new regulations. Non-compliance or delayed implementation can also lead to administrative offenses or criminal liability. Furthermore, changes in the export list may result in short-term business adjustments or supply stops if new goods are listed.
How is compliance with the export list monitored and by whom?
Monitoring compliance with the export list is primarily the responsibility of the Federal Office for Economic Affairs and Export Control (BAFA), which examines, approves, or rejects export licenses. In addition, customs authorities are responsible for supervising actual export operations. As part of export control, on-site inspections, follow-up checks, and requests for additional documentation may occur. In cases of suspected violations, investigations are usually initiated by the public prosecutor’s office. Efficient cooperation between BAFA, customs, and other authorities ensures law enforcement.
What penalties can be imposed for violations of the export list requirements?
Violations of the export list can result in severe legal consequences in Germany. Depending on the severity, offenses may qualify as administrative offenses, punishable by significant fines, or as criminal acts, which may be punished by imprisonment of up to ten years or monetary penalties. In particular, attempting to export listed goods without a license is punishable just like the completed act. Accompanying penalties may range from confiscation of the goods to the revocation of export privileges or prohibition of business activities. Civil claims by injured contracting parties and reputational damage can also entail additional consequences.
What options are there to have the entry of a good into the export list legally reviewed or contested?
As a rule, the inclusion of a product or technology in the export list is a sovereign act that is subject to judicial review by administrative courts. Companies and affected parties can first apply to BAFA for information or review to check whether their product is actually affected by the listing. If the export license is refused, an objection can be filed in the administrative procedure and subsequently an action can be brought before the administrative court. There is a right to judicial review of the legal basis, proportionality of the listing, and any related conditions or prohibitions. However, judicial review is often limited to the specific case and not to the general validity of the export list itself.
