Radiation measuring instruments are considered sensitive goods because they could be used in connection with nuclear weapons. Naturally, we do not build our equipment for use in connection with nuclear weapons, but for the purpose of radiation protection, or, as Section 1 of the Radiation Protection Ordinance calls it, for the “protection of people and the environment from the harmful effects of ionising radiation”.
Despite our peaceful intentions, German foreign trade law imposes some restrictions on the export of our products. Why do we mention this on the German version of our homepage, which is primarily intended for domestic customers? On the one hand, because you are perhaps a German-speaking reader resident abroad, and on the other hand, because as a domestic customer, you may be considering exporting the products you purchase from us. In the latter case you must observe the German export restrictions just as we do.
Definitions of terms and abbreviations
AWV is the Foreign Trade and Payments Ordinance, a regulation implementing the Foreign Trade and Payments Act. It regulates the movement of goods to, from and through Germany including the movement of services, capital and payments. Furthermore, AWV implements international decisions such as UN resolutions (embargoes) in German law.
For radiation measuring instruments, Section 9 (Section 5d in the version of the AWV before 01.09.2013) is of particular interest. There is a list of countries that operate nuclear facilities without submitting to the inspections by the international community (IAEA) and are therefore considered suspect. The designated country list is currently (03/2019): Algeria, Iraq, Iran, Israel, Jordan, Libya, North Korea, Pakistan and Syria (until 05/2011 India was also involved). We therefore only deliver to the countries mentioned in Section 9 upon proof of an export license.
AL is the Export List, an annex to the AWV. The EL is a list of goods to which restrictions apply. The EL has the following parts:
- Part I Section A (military list) does not concern our products,
- Part I Section B (national list of goods with 900 codes) does not concern our products,
- Part I Section C (no longer exists, contained before 01.09.2013 the list of goods from Annex I of EC Regulation 428/2009),
- Part II (Goods of plant origin) does not concern our products.
Thus none of our products is covered by the export list EL.
According to the Foreign Trade and Payments Act, export refers to the dispatch of goods from an EU member state to a country outside the EU, and transfer refers to the transport of goods between EU member states. We use export as a generic term. Export can therefore be both export and transfer. Incidentally, in the case of exports, it makes no difference whether the exported goods are new or used, whether they are returned after repair, or whether they are sent against payment or even on loan. As soon as a good moves from one country to another for whatever reason, it is considered an export in our sense.
EC Dual-Use Regulation refers to EC Regulation 428/2009 of 05.05.2009, which came into force on 27.08.2009. This regulation lays down “controls on the export, transfer, brokering and transit of dual-use items” for all EU Member States. It is the successor to EC Regulation 1334/2000, which has already undergone many changes over time and was to be amended again, so that it was rewritten in 2009 in the interests of clarity. Of particular importance is Annex I, the list of goods.
List of goods: A list of ”dual-use items” in Annex I of the EC Dual-Use Regulation The export of such “listed” goods requires a licence. In the opinion of BAFA, some of our instruments fall under the number 1A004c of the list of goods, i.e. is deemed to be listed. Although we do not share this view, we are unable to successfully defend ourselves against it. For some destinations, the export of listed items is facilitated by, among other things, 1A004c, in the form of General Licences No. EU001 and EU002 formulated in Annexes to the EC Dual-Use Regulation.
BAFA is the Federal Office of Economics and Export Control, see www.bafa.de. BAFA is the licensing authority responsible for export controls. Applications for export licences must be submitted to BAFA.
Export licence: An application for an export licence can be decided in one of the following three ways, depending on the individual case:
- a) the export operation is not subject to authorisation; or
- b) an export licence is issued; or
- c) the export project is rejected.
We will not distinguish between cases a) and b) but will refer to both as “export licence”. Otherwise, this treatise will be as incomprehensible as the original texts of the various regulations.
When is an export licence required?
First of all, the higher-level sanctions lists must be observed. Based on various international decisions, the EU has adopted restrictive measures to combat terrorism. According to these measures, no financial assets or economic resources may be made available, directly or indirectly, to any person, group or entity included in the sanctions lists. Here, neither the economic good nor the country of destination is important, only the recipient (total embargo independent of country). Therefore, compliance with the sanctions lists is by no means limited to exports but is often considered in the context of exports because the corresponding terrorist suspects are suspected to be mainly abroad. The sanctions lists are subject to frequent changes. The German federal and state justice portal operates an Internet site for identifying persons, groups and organisations for which a comprehensive ban on disposal exists due to a sanction. At international level, the United Nations has established a Consolidated United Nations Security Council Sanctions List.
We currently assume that the recipient is not named in the sanctions lists. In the following table, we summarise the cases in which we can only deliver against a licence to be applied for individually for each export project. This table is based on the AWV and the EC Dual-Use Regulation. There are restrictions regarding both the country of destination and the products.
The great administrative effort, the processing time by the BAFA, which usually takes months, as well as the often very low chances of success make smaller orders an economic loss for us. We ask for your understanding that for these reasons we reserve the right not to accept orders in individual cases.
Furthermore, please understand that we can only confirm your order subject to approval under the reservation of later approval and cannot promise delivery dates due to the unknown processing time by the BAFA.
What documents do we need from you to file an application for an export licence?
When we apply for an export licence, you, our valued customer, must also participate in this application in the form of explanations and also exercise some patience. If this effort does not curtail you, we need the following documents from you:
Ordering: Your order on your business stationery, showing the identity of your company/organisation with address and contact details (telephone, fax, email, etc.)
Identification of the end user: If you as the recipient are not the end user of the products: the name, address and contact details (telephone, fax, email, etc.) of the end user This information should actually already be included in the End-Use Certificate (EUC, see the last item of this list below). If the EUC is difficult to read for German authorities (e.g. for linguistic reasons), please specify the identity of the end-user, e.g. in your order. BAFA pays very close attention to the distinction between recipient (buyer) and end-user. Example: A national government or ministry wishing to procure equipment for national institutions is not considered an end-user. The end-user is only the person who uses the equipment in practice.
Profile of end-user: Detailed description of the activity of the end-user. This may take the form, for example, of a company profile of the end-user and, where applicable, data sheets of the products manufactured or distributed by the end-user. A simple reference to the end-user’s website is not accepted because BAFA does not feel obliged or responsible to search for the correct information there.
Profile of recipient: If the consignee (buyer) (e.g. one of our foreign representatives) and the end-user are not identical, BAFA will usually also require a detailed description of the consignee’s activities (company profile, data sheets, etc.).
End-Use Certificate EUC (also referred to as End-Use Declaration or End-Use Statement): Declaration by the end-user on the end-user’s business paper where and for what purpose the equipment is to be used. The EUC must be written in English or German. A template published by BAFA (in English, “End-Use Certificate”) with all necessary information can be found here. From this template, you can copy and paste the text into your custom EUC. Specify the end use (in the template this is the line “and will only be used for ___”) in as much detail as possible, if necessary in several lines and not just one as in the template. A general statement such as “measuring radiation” is not recognised.
Proof of import in the country of destination: If the export project has been approved and the export has taken place, in many cases BAFA requires proof that the goods have actually arrived in the country of destination. For this purpose, suitable documents from the customs authorities of the country of destination must be presented (e.g. “Bill of Entry”).
Please send us these documents in full and if possible in electronic form (PDF), as the application for an export licence is submitted electronically. This also applies to the profiles of the end-user and possibly different recipient! Please do not leave it to us to select the necessary information from Internet pages. You have better than knowledge than we do where the relevant information is located and can thus help to make the process run as quickly as possible!
As mentioned above, in the vast majority of cases BAFA, unfortunately needs many months to reach a decision, even in case of a refusal. During this processing period, please refrain from asking questions about the status of the process. Attempts to accelerate the process are completely ineffective. They rather lead to an annoyance on the part of the BAFA officials.
Furthermore, you have to expect that BAFA will request further information in spite of your completely submitted documents. These questions are sometimes quite surprising, e.g. what is the end-user’s area of responsibility, in this case a fire brigade. You must also have the necessary patience to answer such questions.
Please also make sure that your order is complete from the beginning. Subsequent addition of some products, even if it is only for some spare parts, is not possible. The application must then be resubmitted!
Of course, we are aware that all this is an imposition for our customers. At this point, however, we can do nothing more than affirm that we have no influence on these obstacles, which also represent a serious threat to our export activities. Of course we accept if you wish to cancel your order due to the lengthy processing time.
The number 1A004c of the list of goods
We mentioned above that, in the opinion of BAFA, some of our equipment is listed under 1A004c and we do not share this opinion. We would now like to justify the latter.
1A004c of the list of goods is defined as follows:
Protective and detection equipment and components, as far as not
included in the list for weapons, ammunition and armaments, as
[ a) ... b) ... ]
c) ABC detection equipment specially designed or modified for the
detection or identification of any of the following agents,
materials or substances, and specially designed components
1. biological agents “for use in war”,
2. radioactive materials “for use in war”, or
3. chemical warfare agents (CW);
Remarks: 1A004 does not cover:
a) radiation dosimeters for personal use,
b) equipment that is limited by design or function to protect against certain dangers in the domestic and commercial sectors, such as mining [, quarries, ...].
1. 1A004 includes equipment and components that have been identified, successfully tested to national standards or otherwise proven effective for the detection or defence of radioactive materials “for use in war” [...], even if such equipment or components are used in civilian applications such as mining [quarrying, ...].
We are currently trying to understand what is meant by this:
- Right in the first sentence, we encounter the military list already mentioned (“if not covered by the list for weapons, ammunition and armaments”). A radiation measuring instrument cannot therefore be covered simultaneously by the military list and the list of goods but only by one of the two. This is a consolation in that an authority'’s decision that a radiation measuring instrument is included in item 1A004c of the list of goods also confirms that this device is not included in the military list.
- Listed radiation monitoring equipment is “equipment specially designed or modified to detect or identify” “radioactive materials ‘for use in war’”. The EC Dual-Use Regulation defines the term “for use in war” as follows: “Adapted for use in war” means any modification or targeted selection (e.g. change in purity, storage stability, virulence, propagation characteristics or resistance to UV radiation) carried out to increase effectiveness in eliminating humans or animals, damaging equipment or destroying crops or the environment. For ordinary citizens, this definition is understood as a cumbersome description of equipment specifically designed to deal with nuclear weapons. This does not apply to our instruments. Our equipment is not specially designed for the special needs of the development and manufacture of nuclear weapons, nor is it even suitable because it is not capable of determining nuclide mixtures, enrichment levels or the like. This is also the view of BAFA. However, BAFA understands the term “radioactive materials” “for use in war” to mean not only nuclear weapons in laboratories or arsenals but also the radioactive materials produced after the explosion of a nuclear weapon. As an exploded nuclear weapon generates high dose rates, the BAFA considers measuring devices with a high dose rate measuring range as suspicious.
- If the equipment is considered to be covered by the list of goods, the same applies to its spare parts, unless they are standard parts: “, and specially designed components therefor”. The decision whether a spare part is a specially designed, i.e. listed part or an unsuspicious standard part is not easy even for BAFA. We have already seen that the same part was considered listed by clerk A but not by clerk B.
- The remark that 1A004 does not control “personal radiation monitoring dosimeters” is unhelpful because the term is not defined and is subject to different interpretations.
- Finally, technical remark 1 (“1A004 includes equipment and components designed to be demonstrated...”) states that equipment need not be “specially designed or modified” as previously stated but only suitable to be considered as listed. This technical remark was added in January 2009 by EU Regulation 1167/2008. This note is so general that it can be interpreted in almost any way. BAFA may have made use of this possibility by declaring our teletectors and their “specially designed components” as listed goods from 2009 on. Perhaps this coincidence in time is also a coincidence, as our Szintomat 6134A(/H) has been listed since May 2004. Verbal justification is in all cases the high measuring range that is suitable for measuring the radiation remaining after a nuclear weapon explosion.