Dual-use technology transfers: Technology exports vs. technical assistance
The European export control regulations divide dual-use technology transfers into two main categories: technology exports and provision of technical assistance. Understanding the differences between the two is essential for complying with export controls.
Technology export
To determine the regulatory duties for controlling the export of dual-use technologies, first it is necessary to define this term. Dual-use technology refers to specific types of information necessary for development, production or use of dual-use goods—i.e. goods which can have both civil and military applications.
This information may take the form of:
- Technical data, including plans, schemes, models, engineering designs, specifications, manuals and instructions, provided physically or digitally, or
- Technical assistance, encompassing instructions, training, consultations, or expert knowledge, provided to support the development, operation or maintenance of products.
Exports of dual-use technologies are generally subject to strict controls and require an export licence.
An exception to this rule is the minimum technology necessary for installation, operation, maintenance or repair of products for which an export licence was issued. Other exemptions include publicly available technologies, basic scientific research, or information necessary for patent applications.
Export of technology includes transfer orally or by telecommunications, including making the technology available through cloud storage or file-sharing tools, if it is accessed by a recipient from outside the EU customs territory. (If the recipient is outside Poland but in the EU customs territory, it is an intra-EU transfer, which may be subject to export controls in certain situations.)
It is important to remember that unlike the American and British regulations, in the EU mere placement of export-controlled technology in the cloud in a way allowing access to it by a recipient from outside the EU customs territory, and not download by a specific recipient, is subject to the licensing obligation.
Technical assistance
On the other hand, technical assistance includes any form of technical support related to repair, development, production, assembly, testing, maintenance, or other technical service for dual-use products. Technical assistance can take various forms of sharing expertise, such as providing instructions, advice, training, or consulting services.
Any natural or legal person should be considered a provider of technical assistance if they:
- Provide technical assistance from the EU to the territory of a third country
- Have a registered office in an EU member state providing technical assistance in a third country, or
- Have a registered office in an EU member state offering technical assistance to a person from a third country who is temporarily in the EU.
Technical assistance related to dual-use items requires a licence if the supplier was informed by the competent control authorities that the products for which the technical assistance is provided are or may be intended, in whole or part, for purposes contrary to trade control regulations, such as development of weapons of mass destruction or for military purposes in states subject to arms embargoes.
If a supplier knows that the technical assistance provided could be put to one of these uses, it must inform the competent authorities, who will then decide whether a licence is necessary.
On the other hand, a licence is not required when technical assistance:
- Is provided in the state or territory of “trusted” countries covered by the EU001 general export licence (e.g. Australia, Canada, Japan, Norway, Switzerland, the UK or the US) or to a resident of these states
- Involves public domain information or basic scientific research
- Is provided by the authorities of a member state as part of official tasks or military objectives
- Is covered by exceptions to marketing control restrictions on nuclear-capable missiles and technology related to such devices (under the Missile Technology Control Regime or MTCR), or
- Includes minimal support for installation, operation or repair of products for which an export licence was issued.
Key differences between technology exports and technical assistance
It can be hard to distinguish between technology export and technical assistance, but the two categories differ in several important respects.
First, only technology required to achieve or exceed the parameters, properties or functions of export-controlled products is subject to export control. For example, if drones with an endurance of at least one hour are subject to export controls, then the technology added to enable the engine to achieve that endurance is considered “required,” as it enables the production of the export-controlled product.
Second, export of dual-use technology implies export, transfer, or sharing of information necessary for development, production or use of a dual-use product. On the other hand, technical assistance does not always require crossing a border and does not always require sharing sensitive information. For example, instructions regarding sensitive technology provided to clients from outside the EU at a manufacturing facility in Poland is deemed to be provision of technical assistance, and not export of technology. Similarly, repairing a dual-use product outside the EU without disclosing to anyone the technical details of the repair qualifies as technical assistance.
Third, personally providing technical support services is not technology export. Therefore, if a Polish worker goes abroad to provide services there, this form of technology transfer is technical assistance, not technology export.
Conclusions
The distinction between technology export and technical assistance is crucial for maintaining compliance with export control provisions. This requires determining the nature of given information, the form of transfer, as well as the place and the recipient of the information. Understanding these differences and the relevant regulatory requirements will allow companies to efficiently execute international transactions while minimising the risk of non-compliance.
Anna Olejniczak-Michalska, attorney-at-law, Dispute Resolution & Arbitration practice, Wardyński & Partners
