Technical assistance relating to torture goods
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The technical assistance relating to torture goods is either prohibited, or subject to a prior ministerial authorisation, or not restricted at all if certain conditions are met. The type of restriction is dependent on the concerned category of torture goods.
Any application for authorisation shall be submitted to OCEIT by using the application form made available. The application will be processed within 60 working days from the day the file is complete. The individual authorisation is valid for 1 year, the global authorisation is valid for 3 years, renewable.
Who is concerned?
Any supplier of technical assistance must obtain an authorisation if they wish to provide technical assistance related to goods that could be used for the purpose of torture or other cruel, inhuman or degrading treatment or punishment (Annex III of Regulation 2019/125) or goods that could be used for the purpose of capital punishment (Annex IV of Regulation 2019/125), irrespective of their origin, where it is used to repair, develop, manufacture, test, maintain, assemble such goods or any other type of technical assistance, and which may take the form of:
- instruction;
- advice;
- training;
- transmission of working knowledge or skills; or
- consulting services.
This includes written and verbal forms of assistance and assistance provided by electronic means.
Exemption
For goods of Annex III of Regulation 2019/125, technical assistance does not require any authorisation if:
a) it is supplied to a law enforcement authority of an EU Member State or to military or civil personnel of an EU Member State acting in the exercise of their functions;
b) it consists of providing information that is in the public domain; or
c) it is the minimum necessary for the installation, operation, maintenance or repair of those goods listed in Annex III whose export has been authorised by a competent authority pursuant to this Regulation.
For goods of Annex IV of Regulation 2019/125, technical assistance does not require any authorisation if:
a) it consists of providing information that is in the public domain; or
b) it is the minimum necessary for the installation, operation, maintenance or repair of those goods listed in Annex IV whose export has been authorised by a competent authority pursuant to this Regulation.
Prohibition
Technical assistance related to goods which have no practical use other than for the purposes of capital punishment, torture and other cruel, inhuman or degrading treatment or punishment (Annex II of Regulation 2019/125) is prohibited where it is supplied or offered to any person, entity or body in a third country under the form of training on the use of such goods.
Are also prohibited:
- the display or offer for sale of any of the goods listed in Annex II in an exhibition or fair taking place in the European Union, unless it is demonstrated that, given the nature of the exhibition or fair, such display or offering for sale is neither instrumental in nor promotes the sale or supply of the relevant goods to any person, entity or body in a third country;
- while selling or purchasing advertising space or advertising time from within the European Union, the sale or purchase from any person, entity or body in a third country of advertising space in print media or on the Internet or advertising time on television or radio, for the purpose of advertising goods listed in Annex II.
Prerequisites
Preliminary steps
In order to be able to submit the application electronically, the operator must first make an express request (on free paper or by email) to OCEIT and get their approval.
Costs
Neither the application for authorisation nor the issuance of the technical assistance authorisation by OCEIT give rise to the levying of any taxes or fees.
How to proceed
Submitting the application
Operators must submit their application for an individual or global authorisation to OCEIT using the application form.
The application is made by mail or electronically (if the supplier has previously obtained OCEIT’s approval).
The application (or the declaration) shall be signed by a person authorised to commit the applicant. By this signature, the applicant certifies the accuracy of the information provided in the application and that of the content of any documents attached to it. They undertake as well to provide the goods concerned with a destination in accordance with their application.
Supporting documents
The supporting documents to be attached to the application for an individual or global authorisation are the following:
- detailed explanatory letter of the operation;
- invoice / pro forma invoice;
- sales agreement;
- recent extract from RCS (less than 3 months).
Deadlines for reply
Any application for an individual or global authorisation shall be acknowledged by OCEIT.
In case of an incomplete application, the applicant will be informed of the need to provide additional documents and any consequences for the period for processing the application.
The application for authorisation shall be processed within 60 working days of the day on which the file is complete.
This 60 day period may be extended for a maximum of 30 working days. The extension and its duration shall be duly reasoned and notified by OCEIT before the expiry of the initial period.
In the absence of a reply within the period provided for, the application for authorisation shall be considered as granted.
Duration of validity
Authorisations shall be valid:
- 1 year for individual authorisations, renewable for a period of 6 months;
- 3 years for global authorisations, renewable for a period of 18 months.
Obligations
Operators must transmit the obsolete authorisation in their possession to OCEIT 10 working days after the expiry date at the latest.
Operators must report the loss of any authorisation document to OCEIT.
The operator must comply with the special conditions contained in the authorisation.
The supplier shall keep detailed and complete registers of operations carried out pursuant to the authorisation. These registers shall contain the commercial documents, such as invoices, manifests, transport documents or other shipping documents, showing the following information:
- the description of the goods and their references in the applicable list or nomenclature;
- the dates of provision of brokering services;
- the name and address, whatever the case may be, of the operator and the consignee;
- the end-use and the countries concerned by the technical assistance.
The supplier shall keep the registers for a period of 10 years from the end of the calendar year in which the transaction took place. He/she shall present them to the ministers at their request during that period.
The operator shall provide, without delay, at the first request of the ministers or OCEIT, the elements and documents necessary to verify the conformity of the operation carried out or foreseen.
Litigation
In the event the authorisation is denied, a legal action may be lodged, by an Avocat à la Cour, against the administrative decision within the period of 3 months from the date of the notification of the administrative decision to the concerned person.
Sanctions
A prohibition (limited to 6 months or definite) or another restriction to carry out one or more activities, and/or the suspension for a maximum period of 6 months from the use of a general European Union or national authorisation, or a global authorisation, and/or a penalty payment (which cannot be higher than EUR 1,250 per day, but cannot exceed EUR 25,000) may be pronounced against anyone who:
- refuses to provide the documents or other information requested of them by the ministers or OCEIT;
- provides the ministers or OCEIT with documents or other information that is found to be incomplete or false;
- impedes the exercise of the powers of the ministers or OCEIT;
- does not follow the orders of the ministers or OCEIT.
May be punished by imprisonment of 5 to 10 years and/or a fine of EUR 25,000 to EUR 1,000,000, anyone who is providing technical assistance related to goods that could be used for the purpose of capital punishment, torture or other cruel, inhuman or degrading treatment or punishment without having been granted the required authorisation or without respecting the prohibition applicable to the operation.
May be punished by an imprisonment of 6 months to 5 years and/or a fine of EUR 7,500 to EUR 75,000, anyone who:
- fails to keep the registers or does not keep them during the period of 10 years (starting with the end of the calendar year during which the operation took place);
- fails to present the registers at the first request of the ministers;
- omits, repeatedly or significantly, to fill in one or more of the mandatory information in the registers;
- provides, in the context of an application for authorisation, information that is false or incomplete;
- does not fulfil the commitments made in the declarations of use and applications for authorisation submitted to the ministers;
- fails to provide information within the time limits and in the manner set out.
Review of the file
The ministers may, at any time, withdraw, suspend for a period not exceeding 90 days or restrict the use of the authorisations they have issued.
Such a review may happen in exceptional circumstances justifying urgent measures, for reasons of protection of the essential security interests of the State, for reasons of public order or national or eternal security, such as transport safety, storage safety, the risk of diversion, the prevention of crime, or for non-compliance with the conditions specified in the authorisation.
Online services and forms
Who to contact
General Directorate for the Promotion of Foreign Trade and Investments (Office for Export, Import and Transit Controls - formerly the Licensing Office)
-
Ministry of the Economy Office for Export, Import and Transit Control (OCEIT)
- Address:
- Bâtiment "Mansfeld", 9, rue du Palais de Justice L-1841 Luxembourg Luxembourg
Related procedures and links
Procedures
Links
Legal references
-
Règlement UE 2019/125 du Parlement européen et du Conseil du 16 janvier 2019
concernant le commerce de certains biens susceptibles d'être utilisés en vue d'infliger la peine capitale, la torture ou d'autres peines ou traitements cruels, inhumains ou dégradants
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Loi modifiée du 27 juin 2018
relative au contrôle des exportations
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Règlement grand-ducal modifié du 14 décembre 2018 relatif au contrôle des exportations
Les modifications de ce règlement sont consultables sur Legilux en cliquant sur le symbole "modifié par" dans la page de publication du règlement grand-ducal du 14 décembre 2018
- Avis officiel conformément à l'article 35, alinéa 2 de la loi modifiée du 27 juin 2018 relative au contrôle des exportations
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