Export Control

Some goods, such as technological, chemical, or military items, can pose a threat to national or international security. For these reasons and to protect international trade, government authorities closely monitor and regulate exported goods. Controls may vary depending on the country of origin, destination, and transit of the goods during transportation. It is therefore important to be aware of the trade regulations in all the countries involved.

Restrictions may apply to goods, individuals, or the business activity to which the shipment is destined. The exporter has the obligation to know the final use of the goods once they arrive and to ensure that they are not used for purposes other than those intended. The current export control regulations and related international economic sanctions create an objectively challenging situation for economic operators. This situation can result in limitations on foreign trade or the risk of serious liabilities, including criminal liabilities, as stipulated by current legislation. For this reason, it is always recommended to seek the advice of Export Control experts when dealing with exports.

Dual Use

In September 2021, the new "Dual Use Regulation" 2021/821 came into effect, introducing significant changes regarding the control of exports, brokering, technical assistance, transit, and transfer of so-called "dual-use" items, replacing the previous Regulation (EC) 428/2009.

The new Regulation, in Article 2, paragraph 2, defines "dual-use" items as "items, including software and technology, that can be used for both civilian and military purposes, and includes all goods that can be used for the design, development, production, or use of nuclear, chemical, or biological weapons or their delivery systems, including all items that can have both a non-explosive use and any use in the manufacture of nuclear weapons or other nuclear explosive devices." The items are all detailed in Annex I of the Regulation.

The purpose of the new Regulation is to "further strengthen the Union's action in the area of non-proliferation of weapons of mass destruction and their delivery systems, contribute to regional peace, security, and stability, and ensure respect for human rights and international humanitarian law."

The cited Regulation applies to all countries worldwide beyond the EU customs border, not just those listed in "black lists" or subject to regulatory restrictions or prescriptions.

At the time of completing the customs declaration by the exporter, the forwarder completes the SAD (Single Administrative Document). In the case of items classified as "dual-use," box 44 of the SAD must include the reference number of the authorization document issued to the exporter by UAMA (Unit for the Authorization of Armament Materials) at the Ministry of Foreign Affairs and International Trade (MAECI); the office responsible for issuing national and community export authorizations and licenses.

The export of potentially "dual-use" goods with false or incomplete customs declarations and/or without proper authorizations or obtained with false statements or documents constitutes an offense that requires immediate and mandatory reporting by the controlling authorities.

The penalties provided by current legislation - established by Legislative Decree 221/2017 - for those who violate the regulatory dictates are both criminal and financial and may result in the application of interdiction measures for the exporter. Specifically, the penalties can include imprisonment from one to six years and/or fines ranging from €15,000.00 to €250,000.00, as well as significant financial and insurance consequences on international cash flow and payments.

For these reasons, it is always advisable to conduct a careful risk analysis to avoid making "dual-use" classification errors, which are easy to make for those without sufficient expertise. This is why it is recommended to seek the advice of sector experts in case of exports.