Control of Exports
Purpose of the 2023 Act
The purpose of the Control of Exports Act 2023 is
- to provide for control of the export of items that can be used for civil or military purposes and for control of the provision of brokering services, technical assistance or transit of those items;
- to give full effect to Council Regulation (EU) No. 2021/821 of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast);
- to provide for control of the export of military items, and for control of the provision of brokering services and transit of those items;
- to provide for the Minister to grant authorisations to undertake certain activities relating to dual-use items and military items; to provide for a process for appealing certain decisions of the Minister with due regard to the potentially sensitive nature of the subject matter of the appeal, and for those purposes to establish a panel of persons to deal with appeals; to provide for enforcement; to provide for information sharing;
- to provide for the repeal of the Control of Exports Act 2008; and to provide for related matters.
The Minister for Enterprise, Trade and Employment is the competent authority for the purposes of the Dual-use Regulation. A report on the operation of the Act will be laid before each House of the Oireachtas every 12 months.
The Minister may prescribe regulations in relation to the functioning of any part of the Act. The Minister may share information with, and may enter into a data sharing arrangement with, a relevant body where necessary for its function of the Minister under the Act.
Control of Dual-use Items
There is a requirement, in certain circumstances, for an exporter to notify the Minister 60 days before the export of a dual-use or cyber-surveillance item not listed in Annex I of the Dual Use Regulation. Offences are set out for the contravention of Articles 3, 4 or 5 of the Dual Use Regulation, and for the contravention of the Act.
The Minister, pursuant to a notice received shall notify the exporter of the decision that
- an authorisation is not required, or
- directing the exporter to apply for an authorisation to export the dual-use or cyber-surveillance item.
The Minister may by order prohibit the export of a dual-use item without an authorization. It is an offence to contravene such an order.
An authorisation is required to transfer from the State to another Member State dual-use item. The Minister shall make a decision regarding a notice received as soon as may be.
The Minister may give notice directing an exporter to apply for an authorisation to export a dual- use item not specified in Annex I of the Dual Use Regulation and sets out that it is an offence to contravene such a direction.
Assistance Services
A broker is required, in certain circumstances, to notify the Minister at least 60 days before the provision of the brokering services for a dual-use item, and sets out offences for contravention of these requirements. It is an offence to contravene Article 6.1 of the Dual-Use Regulation.
The Minister, pursuant to a notice received shall notify the broker of the decision that either an authorisation is not required, or directing the broker to apply for an authorisation to provide brokering services relating to a dual-use item.
A provider of technical assistance is required, in certain circumstances, to notify the Minister at least 60 days before the provision of the technical assistance for a dual-use item, and sets out offences for contravention of these requirements. The Minister, pursuant to a notice received shall notify the provider of technical assistance of the decision that (a) an authorisation is not required, or (b) directing the provider to apply for an authorisation to provide brokering services relating to a dual- use item.
The Minister, in consultation with other Ministers of Government, may by order prohibit the transit through or from the State of a dual-use item. It is an offence to contravene this provision.
The Minister may give notice directing a person to apply for an authorisation to undertake the transit of a dual-use item specified in Annex I of the Dual Use Regulation. It is an offence to contravene such a direction.
Control of Military Items
The 2024 Act establishes a prescribed list of military items known as the national military export control list. It is an offence to export a military item without an authorisation
.It is an offence to provide brokering services in respect of a military item without an authorisation. It an offence to transit a military item through or from the State without an authorisation.
There is an exemption from an offence in certain situations for temporary exports by the Defence Forces or the Garda Síochána.
Authorisation
The 2023 Act provides sets out the procedure for applying to the Minister for an authorisation and for the decision of the Minister on an application. The Minister may prescribe certain matters relating to an authorisation, including the application procedure and any fees to be paid.
An authorisation is non-transferrable. There is a requirement to keep records sets out the conditions and the requirement that an authorisation holder must keep records.The Minister may request a report on the records held by the holder of an authorisation.
Non-compliance with the conditions of an authorisation is an offence. The Minister may revoke, suspend or modify an authorisation. There is a process for terminating the suspension of an authorization.
The Minister may appoint his or her officers to make or review relevant decisions. There is a process of internal review which a person in receipt of a relevant decision may request.
Adjudicators
The Minister may appoint persons as adjudicators. The Government may revoke an appointment under certain grounds, and there is a process for this. An adjudicator operating under the Act shall not be liable in damages.
Minister may prescribe the rules in relation to appeals to be determined by an adjudicator. Certain decisions may be appealed. An adjudicator may determine an appeal without an oral hearing., and there is a procedure where the adjudicator considers it necessary for an oral hearing. The adjudicator shall decide to allow the appeal and remit the matter to the Minister, or affirm the relevant decision of the Minister.
Sensitive Material and Evidence
The adjudicator may determine whether disclosure of information to an appellant would create a risk to the security or public order of the State, and make certain directions regarding the disclosure of such relevant information. Such an appeal shall be conducted otherwise than in public.
There is to be non- disclosure of any information obtained by a party to an appeal or as a result of an appeal, and sets out that contravention of this is an offence.
Appeals
The Minister may designate a legal representative to represent a party to an appeal. A decision of an adjudicator may be appealed to the High Court on a point of law.
Bringing an appeal to the High Court does not suspend the effect of the relevant decision. The appellant may apply to the High Court to have the effect of that relevant decision suspended.
The High Court may determine whether disclosure of information to an appellant would create a risk to the security or public order of the State, and make certain direction regarding the disclosure of such relevant information. The High Court may hear the whole or part of any proceedings s Part otherwise than in public.
Enforcement
The Minister may appoint an authorised officer under the Act. An authorised officer may request information and enter premises. An authorised officer may request relevant information or records, and enter any premises that has been or is being used in connection with a relevant activity. The Act provides for the powers of authorised officer on entry to a premises, and the conditions on the use of those powers.
An authorised officer shall prepare and provide a report to the Minister in relation to functions performed above. An authorised officer may give a notice to a person suspected of contravening a provision of the Act.
A compliance notice may be appealed to the District Court. An authorised officer may apply to the Circuit Court for an order requiring the recipient of a compliance notice to comply with the notice.
Any relevant item in respect of which an offence has been committed under the Act may be liable to forfeiture, and sets out the rules of such forfeiture. Condemnation proceedings are civil and are commenced in the name of the Minister. The Minister may, by his or her discretion, restore, sell or destroy anything seized as liable to forfeiture under the Act.
Nothing in the Act is to compel the disclosure of, or authorise the taking of, any privileged legal material, other than by means whereby the confidentiality of the information can be maintained.
Offences and Penalties
It is an offence to obstruct or interfere with an authorised officer, or a member of the Garda Síochána in exercising a power under the Act. It is an offence to knowingly provide false or misleading to the Minister in purported compliance with the Act.
The penalties for contravention are set out. An offence committed by a body corporate under the Act may also be proceeded against a director, manager, secretary or other office of the body corporate.