Luxembourg - Law of 27 June 2018 on export control 

Version originale française /  Deutsche Übersetzung / Document français-english / Document français-deutsch.

Summary

Chap. 1 - Scope (art.1)

Chap. 2 - Definition (art.2)

Chap. 3 - Authorizations (art. 4-17)

Chap. 4 - Goods of a strictly civilian nature (art. 18)

Chap. 5 - Restrictive measures (art. 19-21)

Chap. 6 - Defence-Related products (art. 22-34)

Chap. 7 - Goods that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (art. 35-36)

Chap. 8 - Technical Assistance for Certain Military End-Uses (art. 37)

Chap. 9 - Dual-Use Items (art. 38-45)

Chap. 10 - Intangible Transfer of Technology (art. 46)

Chap. 11 - Office for Export, Import and Transit Control (art.47)

Chap.12 - Supervision, Investigation and Recognition of offenses (art. 48-53)

Chap. 13 - Penalties (art. 54-61)

Chap. 14 - Repealing Provisions (art. 62)

Chap. 15 - Transitional Provisions (art. 63)

Chap. 16 - Final Provisions (art. 64)

Consolidated text (non official) up-to-date 1 September 2022

Chapter 1 - Scope

Art. 1.

(1) The purpose of this law is:

1. to control the operators’ export, transfer, import and transit operations, of goods of a strictly civilian nature, defence-related products, goods which may be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, and dual-use items;
2. to regulate brokering activities on defence-related products and dual-use goods, technical assistance related to certain military final destinations, and intangible transfer of technology;
3. to implement trade restrictive measures against certain States, political regimes, individuals, entities and groups, in accordance with UN Security Council resolutions and acts adopted by the European Union.

(2) It shall not apply to:

1. traumatic weapons covered by the law of 3 April 1996 approving the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects and Protocols I, II and III, done at Geneva on 10 October 1980;
2. cluster munitions covered by the law of 4 June 2009 approving the Convention on Cluster Munitions, opened for signature in Oslo on 3 December 2008;
3. explosives precursors as referred to in Regulation (EU) No 98/2013 of the European Parliament and of the Council of 15 January 2013 on the marketing and use of explosives precursors ;
4. chemical weapons covered by the law of 10 April 1997 approving the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, done in Paris,
   on 13 January, 1993;
5. cultural goods covered by Council Regulation (EC) No 116/2009 of 18 December 2008 on the export of cultural goods.

Chapter 2 - Definitions

Art. 2.

For the purposes of this law:

1. “technical assistance” means technical assistance defined as such by Council Joint Action 2000/401/CFSP of 22 June 2000 concerning the control of technical assistance related to certain military end-uses;
2. “authorization” means a license, prior authorization, final authorization, certificate, permit or any other authority act having a similar scope, in relation to an activity covered by this law;
3. (mod. by Regulation (EU) 2021/821, Art. 31) “dual-use items“ means items defined as such by Regulation (EU) 2021/821 of the European Parliament and of the Council 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) (hereinafter “Regulation (EU) 2021/821”);

4. “goods of a strictly civilian nature“ means anything which is considered to be goods for the application of the customs legislation, and the related technology, except (a) defence-related products, (b) goods referred to in Article 35, and (c) dual-use items;
5. “import”, “export” and “transit” means operations which are considered as such by customs legislation as defined by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code;
6. “vital interests“ means the competitive situation with respect to other countries and any situation preventing or likely to prevent damage to the reputation of an economic sector or the economic situation of the Grand Duchy of Luxembourg;
7. “Common Military List of the European Union“ means the list adopted annually by the Council of the European Union and incorporating the equipment covered by Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of of exports of military technology and equipment;
8. “restrictive measure” means a measure aimed at prohibiting or restricting commercial, industrial, economic, technical or scientific activities or training, advisory or technical assistance activities in relation to a foreign State or foreign political regime, an undertaking or a foreign or foreign-controlled organization or their agents or any other person, pursuant to this law or the regulations made thereunder, of an act taken under the Treaty of the European Union or the Treaty on the functioning of the European Union, an international treaty binding the Grand Duchy of Luxembourg, or a United Nations Security Council resolution;
9. “operator” means, as the case may be, the exporter, the importer, the transit operator, the broker, the provider of technical assistance services or of intangible transfer of technology, and any person carrying out an operation on  goods  referred to in this law and the regulations made thereunder;
10. “defence-related-products” means goods referred to in Article 22;
11. “proliferation” means any act that contributes to the manufacture, acquisition, development, possession, export, transhipment, transfer, brokering, storage and use of chemical, biological or nuclear weapons or other nuclear explosive devices and missiles capable of serving as a vehicle for such weapons, including dual-use technologies and items used for non-legitimate purposes, in infringement with an international treaty binding the Grand Duchy of Luxembourg;
12. “external security“ means the security of foreign States or international or supra-national organizations with which the Grand Duchy of Luxembourg pursues common objectives on the basis of an international treaty;
13. “national security“ means the independence and sovereignty of the State, the security and functioning of the institutions, the fundamental rights and freedoms, the security of persons and property, the scientific and technical potential or the economic interests of the Grand Duchy of Luxembourg;
14. “technology” means any specific information or knowledge that is necessary for the development, production or use of a good, and that is provided by an act of providing services or is transmitted by means of technical documentation or technical assistance;
15. “transfer” means any transmission, or movement of a defence-related product, from a supplier to a consignee located in another Member State of the European Union or from a supplier located in another Member State to a consignee located in the Grand Duchy of Luxembourg;
16. “intangible transfer“ means the transmission, digitally or orally, of documents irrespective of the medium, the management or remote maintenance of computer networks, the monitoring of magisterial courses or training in any form whatsoever, the activities of studies or scientific research and the transmission of know-how, practical, technical or scientific knowledge and information in any form whatsoever.

Chapter 3 - Authorizations

Art. 3.

Persons wishing to export, transfer, import or transit goods referred to in this law and the regulations made thereunder, or to provide brokering services or technical assistance in relation with defence-related products or dual-use items, or to provide an intangible transfer of technology, shall use general authorizations or submit an individual or global authorization application to the Ministers responsible respectively for Foreign Trade and Foreign Affairs, hereinafter referred to as “the Ministers”, in accordance with the provisions of Article 15.

Section 1 - Applications for Authorization

Art. 4.

(1) Applications for authorization must include all the identifiers of the parties involved in the transaction, the precise description of the goods concerned, their origin, final destination, end use, quantities and values that make them the subject of the application.

(2) Every operator, as well as the personnel of his undertaking, who is involved in an operation involving goods referred to in this law, shall provide all relevant information and communicate documents, correspondence and any other documents, in any form whatsoever, able to verify compliance with the provisions enacted under this law.

(3) Applications for individual and global authorizations, as well as applications for registration for the purpose of using a general EU transfer or export authorization or a national general authorization, shall be signed by a person authorized to commit the applicant and certifying the accuracy of the information provided in the application and that of the contents of any documents attached to it. By this signature, the applicant undertakes to provide the goods concerned with a destination in accordance with his application.

A Grand Duke Regulation shall determine the model of the forms to be used by the operators for the applications for authorization and registration referred to in this law and for the documents to be annexed to these applications. It also specifies the manner in which applications may be filed electronically, as well as the number and type of documents to be appended to applications depending on the nature of the goods covered by this law.

Art. 5.

(mod. by Regulation (EU) 2021/821, Art. 31) The operators submitting an application for a global authorization shall have an internal compliance program, as well as any supporting documents justifying the implementation and execution of such a program which ensures the implementation of Regulation (EU) 2021/821.

Art. 6.

(1) The Ministers shall process applications for authorization within sixty working days of the day on which the file is complete. This period may be extended once, for a maximum of thirty working days. The extension and its duration shall be duly reasoned and notified to the applicant before the expiry of the initial period.

(2) Any application for authorization shall be acknowledged as soon as possible. The acknowledgment of receipt shall indicate the period referred to in paragraph 1, the remedies and the mention, in the cases provided for in paragraph 4, that if no reply is received within the prescribed time, the authorization shall be considered as granted.

(3) In the case of an incomplete application, the applicant shall be informed as soon as possible of the need to provide additional documents and any consequences for the period referred to in paragraph 1.

(4) In the absence of a reply within the period provided for in paragraph 1, possibly extended, the authorization requested for goods of a strictly civilian nature shall be considered as granted.

Art. 7.

(1) In the case of defence-related products, the Ministers, for the issue of authorizations, shall take into account the risks created by the transfer with regard to the safeguarding of human rights, peace, national and external security, and stability.

For the purpose of issuing such authorizations, the Ministers may request end-user certificates that include guarantees or indications as to the end use of the defence-related product (s).

(2) The criteria laid down in Article 2 of Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing the control of exports of military technology and equipment shall also apply to the granting of authorizations referred to in Articles 24 and 35.

In assessing the applications for authorizations referred to in this paragraph, the Ministers shall take into account the guidelines and user guides adopted on the basis of the common position referred to in subparagraph 1 of this paragraph.

(3) For components, authorizations shall be issued after an assessment of the sensitivity of the transfer, according in particular to the following criteria :

1. the nature of the components in relation to the products in which they are to be incorporated and any end-use of finished products which might give rise to   concern;
2. the significance of the components in relation to the products in which they are to be incorporated.

The Ministers shall refrain from imposing any export limitations for components where the recipient provides a declaration of use by which it declares that the components subject to that transfer authorization are or are to be integrated into its own products and cannot at a later stage be transferred or exported as such, unless for the purpose of maintenance or repair.

The Ministers shall not apply subparagraph 2 of this paragraph when they consider that a transfer of components is sensitive. The assessment of the sensitivity of the transfer of components is based in particular on the following criteria :

1. the nature of the components in relation to the products to which they are to be incorporated and in relation to any end use of potential concern for the finished products;
2. the importance of the components to the products in which they are incorporated.

(4) (mod. by Regulation (EU) 2021/821, Art. 31) For the assessment of applications for authorizations for dual-use items, the Ministers shall take into account the guidelines and user guides adopted in the context of the implementation by the Member States of the European Union of Regulation (EU) 2021/821.

Art. 8.

After each shipment of defence-related products covered by an export authorization, the exporter shall provide, within three months, the Office for Export, Import and Transit Control, hereafter called “Office”, with the proof of their arrival in the authorized country of destination and their release for consumption by the importer.

This proof is made either by the document issued by the customs authorities of the importing country establishing that the exported goods have been declared for consumption, or by any other document establishing the direct assumption of these goods by the qualified authority of the importer country, or by any operator mandated by it.

Section 2 - Authorizations

Art. 9.

(1) The Ministers shall publish on the websites of their ministries general transfer authorizations directly authorizing suppliers established in the territory of the Grand Duchy of Luxembourg, which fulfil the conditions indicated in the authorization, to carry out transfers of defence-related products, to be specified in the authorization, to a category or more categories of recipients located in another Member State of the European Union.

Benefit from general authorizations transfers where:

1. the recipient is part of the armed forces of a Member State or a contracting authority in the field of defence, purchasing for the exclusive purpose of use by the armed forces of another Member State of the European Union;
2. the recipient is a certified undertaking;
3. the transfer is made for the purposes of demonstration, evaluation or exhibition; or
4. the transfer is made for the purposes of maintenance and repair, if the recipient is the originating supplier of the defence-related products.

(2) The Ministers may publish general national export authorizations directly authorizing exporters established in the territory of the Grand Duchy of Luxembourg, who fulfil the conditions indicated in the authorization, to carry out exports of defence-related products or dual-use items, to be specified in the authorization, to the recipients referred to in the fourth subparagraph of Article 16 (1).

Art. 10.

At the request of individual operators or on their own initiative, the Ministers may deliver them global authorizations under the third subparagraph of Article 16 (1).

Art. 11.

The individual authorizations provided for in the second subparagraph of Article 16 (1) shall be issued where:

1. in the case of defence-related products, the application for authorization is limited to a single operation;
2. the protection of the essential interests of the national and external security of the Grand Duchy of Luxembourg or the grounds of public order so require;
3. an individual authorization is necessary for compliance with international obligations and commitments of the Grand Duchy of Luxembourg; or
4. the Ministers have serious reasons to believe that the operator will not be able to comply with all the terms and conditions necessary to grant it a global authorization.

Art. 12.

(1) The authorizations shall indicate by name the natural or legal persons to whom they are intended. It shall be forbidden to assign them or to accept their assignment, unless the European Union’s regulations provide for this expressly.

The holder of an authorization may authorize the buyer or the seller of the goods which is the subject of this authorization to use it in customs. The holder will continue to assume the obligations resulting from the issue of the authorization concerned. This delegation does not transfer the authorization.

(2) Where an authorization is granted, in addition to the owner, the assignee of the authorization or his user, and any person authorized by or by the holder for the customs presentation of the authorization or for the realization of the operation for which this authorization was issued, shall comply with the provisions of this law and the regulations made there under.

Art. 13.

(1) The period of validity of the authorizations granted shall be one year for individual authorizations and three years for global and general authorizations.

Individual authorizations are renewable by express ministerial decision for a new six-month period. The global and general authorizations are renewable, under the same conditions, for a new period of eighteen months.

(2) Authorizations shall be valid only for the operations for which they are issued and for the period of validity indicated, under reserve of their renewal. Their use may be limited to specific customs offices.

However, when, before the expiry of its period of validity, an authorization is returned by its holder to the Office without having been fully used, its validity shall expire on the day of its receipt by the Office. In case of non-use, its validity shall come to an end no later than the expiry date. In the event of a total clearance, the Customs and Excise Administration shall return the authorizations to the Office.

The holders of authorizations are required to return to the Office, no later than ten business days after the expiry date, any expired authorizations in their possession.

In case of loss of the authorization document, duly declared to the Office, the operator may be given a duplicate, the validity period of which does not exceed that of the original lost.

(3) Authorizations may be used only in accordance with the general conditions set out in this law and the special conditions imposed on them under the provisions of Article 16 (2).

Art. 14.

(1) The Ministers may, at any time, withdraw, suspend for a period not exceeding ninety days or restrict the use of the authorizations they have issued, 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 external 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 authorization.

Decisions referred to in this Article may contain special provisions, in particular for goods in the process of manufacturing or already on their way.

(2) Where the Ministers consider that there is a serious risk that a certified recipient of defence-related products in another Member State of the European Union will not fulfill a condition of which one of their general authorizations is attached, or when they consider that public order, the national or external security of the Grand Duchy of Luxembourg could be threatened, they shall inform the other Member State of the European Union and ask it to evaluate the situation.

If the doubts referred to in the preceding subparagraph remain, the Ministers may provisionally suspend the effects of their general authorization as regards the recipient (s) in question. They shall warn the other Member States of the European Union as well as the European Commission by giving reasons for this safeguard measure.

The Ministers may decide to lift the safeguard measure if they consider that it is no longer justified.

Art. 15.

(1) The authorizations referred to in Article 3 are granted by the Minister responsible for Foreign Trade.

(2) By way of exception to paragraph 1, authorizations shall be granted by the Ministers, acting by common decision, in the case of export, transit, transfer, brokering, technical assistance or intangible transfer of technology relating to defence-related products, goods referred to in Article 35 or dual-use items.

Art. 16.

(1) An authorization shall be issued in an individual, global or general form.

The individual authorization is issued to an individual operator and shall authorize an operation for a specified quantity of goods and taking place in one or more phases.

The global authorization may be used by the operator who fulfils the conditions indicated in such authorization, to carry out operations on goods covered by this law, either (i) at destination of recipients located in one or more other Member States of the European Union, in the case of a transfer of defence-related products, or (ii) to or from third States to the European Union or identified persons, as indicated in the global authorization. It shall cover, for its period of validity, the export, transfer, import or transit of the goods identified, without quantity or amount, without prejudice to the first subparagraph of Article 40 (1).

The general authorization may be used by all operators who are established or resident in the Grand Duchy of Luxembourg and who fulfill the conditions indicated in such authorization, to carry out operations on goods covered by this law, (i) either at destination of a category or categories of recipients located in another Member State of the European Union, in the case of a transfer of defence-related products, or (ii) to or from third States to the European Union or identified persons as indicated in the general authorization.

(2) The Ministers may impose special conditions on the recipients of authorizations:

1. either to safeguard the vital interests of an economic sector or those of the national economy as a whole;
2. in order to safeguard the national or external security of the country;
3. for the purpose of ensuring the implementation of treaties, conventions or arrangements that pursue economic or security-related purposes, as well as decisions or recommendations of international or supranational organizations;
4. or with a view to helping to uphold the universally recognized general principles of law and humanity.

Art. 17.

(1)  (mod.  by  the  law  of  1  August  2018, Art. 68) The Minister responsible for Foreign Trade shall be the person in charge of data processing within the meaning of the Regulation (EU) 2016/679, the law of 1 August 2018 on the protection of natural persons with regard to processing of personal data in criminal matters and in matters of national security and the law of 1 August 2018 on the organization of the National Commission for Data Protection and the general regime of data protection.

(2) The data processing has the following purposes :

1. administer the regimes and quotas for the transactions and goods referred to in this law;
2. identify the operator or operators who have applied for an authorization referred to in this law or who, because of the operations they carry out or wish to perform, are subject to a measure covered by this law;
3. issue the authorizations and implement the restrictive measures referred to in this law;
4. collect the taxes and duties relating to the import, export and transit operations of the goods referred to in this law;
5. establish or target the certificates required for the purpose of international cooperation ;
6. compile statistics and reports relating to transactions that fall within the competence of the Office;
7. respond to the notifications made by the exporters on the basis of this law;
8. establish the certification of recipients of defence-related products established in the territory of the Grand Duchy of Luxembourg;
9. carry out the controls of operations and operators subject to this law;
10. monitor, investigate and record offenses under this law.

The recipients of the data processing are:

1. the Minister responsible for Foreign Affairs ;
2. the Customs and Excise Administration ;
3. members of the interdepartmental coordination group ;
4. the Grand Ducal Police ;
5. the officials referred to in Article 52;
6. the European Commission and the other bodies of intergovernmental organizations to which the Grand Duchy of Luxembourg has acceded, with regard to the powers of the Office and the commitments of the Grand Duchy of Luxembourg vis-à-vis these organizations.

Chapter 4 - Goods of a strictly civilian nature

Art. 18.

Shall be subject to the production of an authorization the export, import and transit of goods of a strictly civilian nature for which such authorization is provided for in Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and the Common Customs Tariff (hereafter called “Regulation (EEC) No 2658/87”).

The Minister responsible for Foreign Trade shall publish a notice in the Official Journal of the Grand Duchy of Luxembourg, providing information on the amendments to Regulation (EEC) No 2658/87, adding a reference to the act published in the Official Journal of the European Union.

Chapter 5 - Restrictive measures

Art. 19.

(1) The purpose of this chapter is for the Grand Duchy of Luxembourg to implement restrictive measures adopted in commercial matters against certain States, political regimes, individuals, entities and groups by:

1. the provisions of resolutions adopted by the United Nations Security Council pursuant to Chapter VII of the United Nations Charter, as well as 
2. the following acts of the European Union:

(a) the common positions adopted before 1 December 2009 pursuant to Articles 12 and 15 of the Treaty on European Union and for the cases referred to in Articles 301 and 308 of the Treaty establishing the European Community;

(b) the decisions adopted since 1 December 2009 pursuant to Articles 25 and 29 of the Treaty on European Union and for the cases referred to in Articles 215 and 352 of the Treaty on the Functioning of the European Union;

(c) the regulations adopted before 1 December 2009 pursuant to Article 249 of the Treaty establishing the European Community or the decisions taken under those regulations and for the cases specified in Articles 301 and 308 of the Treaty establishing the European Community; and

(d) the regulations adopted since 1 December 2009 pursuant to Article 288 of the Treaty on the Functioning of the European Union or the regulations or decisions taken pursuant to those regulations and for the cases referred to in Articles 215 and 352 of the Treaty on the Functioning of the European Union.

(2) The implementation of the acts referred to in paragraph 1 may include, with regard to States, political regimes, natural and legal persons, entities or groups concerned:

1. the prohibition or restriction of commercial, industrial, economic, technical and scientific activities of any kind;
2. the prohibition or restriction of providing technical assistance, brokering services, financing or financial assistance in connection with a State, a political regime, a natural or legal person, entity or group to which this law and the regulations made thereunder do apply;
3. the complete or partial interruption of economic relations and of rail, sea, air, road, river, postal, electronic and other means of communication;
4. the prohibition of admission to the territory of the Grand Duchy of Luxembourg or the transit of the same territory.

(3) The restrictive measures referred to in paragraph 2 impose:

1. on natural persons of Luxembourg nationality who reside or operate on or from the territory of the Grand Duchy of Luxembourg or from abroad; and
2. on legal persons having their registered office, a permanent establishment or their center of main interests in the territory of the Grand Duchy of Luxembourg and who operate in or from the Grand Duchy of Luxembourg or from abroad; and
3. on all other natural and legal persons who operate on or from the Grand Duchy of Luxembourg.

Art. 20.

(1) The implementing measures necessary for the implementation of the restrictive measures referred to in Article 19 are adopted by Grand-Duke Regulation.

The Grand Duke Regulation shall designate the States, political regimes, natural and legal persons, entities or groups subject to restrictive measures.

With regard to States, political regimes, natural and legal persons, entities or groups included in a list annexed to an act of the European Union or the United Nations, this designation shall be made by reference to this list.

This reference shall also apply to States, political regimes, natural and legal persons, entities or groups included in these lists under police and judicial cooperation in criminal matters in the European Union.

(2) The Grand Duke Regulation shall determine which of the measures referred to in Article 19 applies.

(3) The lists of States, political regimes, natural and legal persons, entities or groups referred to in the Grand Duke Regulation may be published by the Ministers through the websites of their ministries.

Art. 21.

(1) A Grand Duke Regulation may impose a restrictive measure against States, political regimes, persons, entities and groups for the defense of national and external security or the vital interests of the country and pending formal decision-making in the United Nations or the European Union, impose a restrictive measure against States, political regimes, individuals, entities and groups.

(2) The restrictive measure shall be valid for a period of not more than sixty days, and its effects automatically expire at the end of such period, unless extended for periods of thirty days respectively.

Chapter 6 – Defence-Related Products

Section 1 - Prohibitions and Authorization Regimes

Art. 22.

(1) For the purposes of this law, the following are considered defence-related products:

1. goods included in the Common Military List of the European Union;
2. environmental modification techniques used for military or other hostile purposes and having widespread, long-term or severe effects as a means of causing destruction, damage or injury to any State, such as defined by the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, adopted on 10 December 1976;
3. goods listed in the United Nations Register of Conventional Arms; and
4. goods which may be used for internal repressive purposes or the use of which poses a direct threat to public order or national or external security, the list of which is established by a Grand Duke Regulation. 

(mod. by law of 2 February 2022, Article 65) The weapons and ammunition covered by the law of 2 February 2022 on arms and ammunition shall not be considered to be defence-related products.

(2) Amendments to the Common Military List of the European Union shall apply with effect from the date of entry into force of the relevant amending acts of the European Union.

The Ministers shall publish a notice in the Official Journal of the Grand Duchy of Luxembourg, providing information on the Common Military List of the European Union and the amendments thus made, with a reference to the act published in the Official Journal of the European Union. 

Art. 23.  

Shall be prohibited a) the import by a recipient situated in the Grand Duchy of Luxembourg from a third State to the European Union, b) the export to a recipient located in a third State to the European Union and c) the transit through the Grand Duchy of Luxembourg of the defence-related products referred to in Article 22 (1), item 2.

Art. 24.

(1) Shall be subject to authorization a) the transfer of defence-related products, other than those referred to in Article 22 (1), item 2, and b) the export, transit through the territory of Grand Duchy of Luxembourg and the import of defence-related products other than those referred to in Article 22 (1), item 2.

(2) Subject to the application of provisions necessary for reasons of national and external security or public order, safety of transport in particular, the authorization provided in paragraph 1 shall not be required for the purposes of passing through the Grand Duchy of Luxembourg.

For the purposes of this Article, “passing” means the carriage of defence-related products via one or more Member States of the European Union other than the Member State of origin and the Member State of destination.

(3) Shall be exempt from the authorization under paragraph 1, defence-related products, where:

1. the supplier and the recipient are governmental bodies or part of the armed forces;
2. supplies are made by the European Union, the North Atlantic Treaty Organization, the International Atomic Energy Agency or other intergovernmental organizations for the performance of their tasks;
3. the transfer is necessary for the implementation of an armament cooperation program between Member States of the European Union; or
4. the transfer is linked to humanitarian aid in the case of a disaster, or made as a donation in an emergency.

Shall be exempt from the authorization under paragraph 1 the transfer of defence-related products from the Grand Duchy of Luxembourg with as final destination Belgium or the Netherlands.

(4) Suppliers of defence-related products shall inform recipients of the conditions attached to the transfer or export authorization, including restrictions, concerning the end-use or export of defence-related products. These conditions and restrictions must be reproduced in the contract or in any act binding on the parties.

Suppliers shall, within thirty working days, inform the Ministers or the competent authority of the Member State from which they wish to transfer or export defence-related products of their intention to use a general transfer or export authorization for the first time. Before notifying the supplier, within the same thirty days period, of the registration of his application for the use of a general authorization, the Minister may require additional information on the products whose transfer is envisaged.

(5) The supplier shall provide the Office by 31 January of each year with information on transfers and exports made on the basis of the general or global transfer or export authorization during the previous year.

This information, summarized by country, shall specify for each recipient the following information:

1. a description of the defence-related products and their references in the Common Military List of the European Union or in the national list;
2. the quantity and value of the products transferred and exported;
3. dates of transfers and exports; and
4. the end-use and the end-user of the products.

When checking the information referred to in subparagraph 2, the Office may request any other relevant document or any additional data relating to such transfers and exports.

Section 2 - Certification

Art. 25.

(1) The Minister responsible for Foreign Trade shall certify the recipients of defence-related products established on the territory of the Grand Duchy of Luxembourg.

Certificates are established according to a template established by Grand Duke Regulation.

(2) (mod. by law of 3 July 2018) The recipient undertakings considered as “contracting authority“ within the meaning of Article 6 of the law of 3 July 2018 on the award of concession contracts and which make purchases for the sole purpose of use by the armed forces of a Member State are authorized to receive defence-related products, under the general authorization referred to in Article 9 (1), subparagraph 2, item 1, without being certified.

(3) The certification establishes the reliability of a recipient undertaking, in particular with respect to its ability to comply with export restrictions for defence-related products received under a transfer authorization from another Member State. The reliability of the recipient undertaking shall be assessed according to the following criteria:

1. proven experience in defence activities, taking into account the undertaking’s record of compliance with export restrictions, any court decisions on this matter, any authorization to produce or commercialise defence-related products and the employment of experienced management staff;
2. relevant industrial activity in defence-related products within the European Union, in particular the capacity for system or subsystem integration;
3. the appointment of a senior executive, member of the management body of the company, as the dedicated officer personally responsible for transfers and exports. This member is personally responsible for the internal compliance program or the transfer and export management system implemented in the enterprise, and the export and transfer control staff;
4. a written commitment of the undertaking, signed by the officer referred to in item 3 of this subparagraph, that the undertaking will take all necessary steps to observe and enforce all specific conditions related to the end-use and export of any specific component or product received;
5. a written commitment of the undertaking, signed by the officer referred to in item 3 of this subparagraph, to provide the Minister, with due diligence, detailed information in response to requests and inquiries concerning the end-users or the final use of all products exported, transferred or received by the undertaking under a transfer authorization from another Member State of the European Union; and
6. a description, countersigned by the officer referred to in item 3 of this subparagraph, of the internal compliance program or the transfer and export management system implemented in the undertaking. This description shall provide details of the human, organizational and technical resources allocated to the management of transfers and exports, the chain of responsibility in the undertaking, internal audit procedures, awareness-rising and staff training, physical and technical security measures, traceability of transfers and exports, as well as the modalities of the control exercised by the administrator over the staff of the units responsible for exports and transfers;
7. record-keeping of defence-related products received.

(4) The period of validity of the certificate may not exceed five years.

(5) The undertaking which is the beneficiary of a certificate undertakes to notify the Minister responsible for Foreign Trade of any event occurring after its issue which could be of such a nature as to affect the validity or the content of the certificate, such as:

1. any major change in its industrial activity relating to defence-related products;
2. any change in the address to which the records relating to defence-related products referred to in paragraph 3, item 7, of this Article may be consulted by the Minister.

The Minister responsible for Foreign Trade shall recognize certificates issued by other Member States in accordance with Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying the terms and conditions of transfers of defence-related products in Community.

Art. 26.

(1) The Minister responsible for Foreign Trade shall, at least every three years, verify whether the recipient meets the criteria set out in Article 25 (3) and any condition specified in the certificate. For newly certified undertakings, a first verification shall take place within one year from the date of issue of the certificate.

(2) As part of these compliance checks, inspectors designated by the Minister responsible for Foreign Trade may access the premises concerned, as well as check or make copies of the registers, data, rules of procedure and any other material relating to the products exported, transferred or received under a transfer authorization from another Member State.

(3) The conformity verifications referred to in paragraph 2 may only be carried out at the discretion of the Minister responsible for Foreign Trade detailing the subject of the inspection and with the agreement of the head of the undertaking concerned, the occupant of the premises or a representative of the undertaking concerned. The consent of one of these persons is not necessary where the inspection staff has a mandate established by order of the president of the competent District Court or the magistrate who replaces him or her, who may attend operations and will instruct one or more judicial police officers to attend the operations. If the investigation is to be carried out in the two boroughs, a single order issued by one of the competent presidents is sufficient.

To this end, the Minister responsible for Foreign Trade will present an application to the President of the competent District Court, who rules as in matters of interim relief. This application shall be substantiated in relation to the indicia which make it possible to suspect the existence of breaches of the conditions of conformity of the certificates, the seriousness of these failures and the role or possible involvement of the undertaking concerned. .

(4) The authorization shall be refused if the measure is not justified or proportionate to the purpose sought by the inspection.

(5) The judge’s authorization shall indicate, under penalty of nullity, the object of the ordered measure and its purpose.

Art. 27.

(1) Where a certified recipient no longer fulfils one or more of the criteria set out in Article 25 (3) or the conditions specified in the certificate, the Minister responsible for Foreign Trade may, within not more than one month from the date on which he first found the non-compliance, require the recipient to take corrective action.

(2) The Minister responsible for Foreign Trade shall immediately notify this decision in writing to the certified recipient undertaking. Such a decision obliges the undertaking to implement the prescribed corrective measures within the time limit set in the written notification.

(3) At the end of this period, the Minister responsible for Foreign Trade shall verify that the corrective measure has been duly implemented. The verification may include an on-the-spot inspection within the meaning of Article 26 (2), a meeting with the senior executive referred to in item 3 of Article 25 (3) or a manager appointed by him, as well as the examination of the written supporting documents provided by the latter.

(4) Within a period not exceeding three months after the verification, the recipient undertaking shall be notified in writing of the result of the assessment and the validity of the corrective measures taken.

Art. 28.

(1) The Minister responsible for Foreign Trade may suspend or revoke the certificate where

1. the certified recipient has not taken the corrective measures within the time limit set in the written notification referred to in Article 27 (2);
2. the certified recipient undertaking no longer fulfils one or more of the criteria listed in Article 25 (3) or the conditions specified in the certificate.

(2) The suspension of a certificate shall be maintained until the certified recipient undertaking demonstrates compliance with the criteria listed in Article 25 (3) and the conditions specified in the certificate.

(3) The Minister responsible for Foreign Trade shall, at the time of the written notification of the suspension of the certificate, require a period within which the certified recipient undertaking must prove compliance.

At the end of this period, the Minister responsible for Foreign Trade shall verify whether the certified recipient undertaking meets the criteria listed in Article 25 (3) and the conditions set out in the certificate.

(4) The verification referred to in paragraph 3 of this Article may require an on-site visit within the meaning of Article 26 (2), a meeting with the senior executive referred to in Article 25 (3), item 3, or with a manager appointed by him, as well as the examination of the supporting documents provided by the undertaking.

(5) Within a period not exceeding one month after the verification, a new decision shall be communicated in writing to the recipient firm certified by the Minister responsible for Foreign Trade indicating that:

1. the suspension of the certificate is lifted and the date on which the decision takes effect;
2. the suspension is maintained until a specified date, at which time a new audit will be conducted; or
3. the certificate is revoked.

Art. 29.

(1) Where a certificate has been issued, suspended, revoked or the suspension of a certificate has been lifted, the Minister responsible for Foreign Trade shall immediately notify in writing the certified recipient undertaking, the European Commission and the other Member States of the European Union.

(2) The Minister responsible for Foreign Trade shall publish on the websites of his ministry and regularly update the list of certified recipients and notify the European Commission, the European Parliament and the other Member States of the European Union.

Art. 30.

When submitting an application for an export authorization, the recipients of defence-related products which they have received under a transfer authorization from another Member State of the European Union and which are subject to export restrictions, shall declare in writing to the Minister responsible for Foreign Trade that they have complied with these restrictions, including, where appropriate, that they have obtained the necessary agreement of the Member State of origin.

Section 3 - Brokering of Defence-Related Products

Art. 31.

(1) The exercise of brokering activity in connection with defence-related products in the territory of the Grand Duchy of Luxembourg shall be subject to authorization.

As an exception to subparagraph 1, shall be prohibited the exercise on the territory of the Grand Duchy of Luxembourg of the brokering activity in relation to defence-related products referred to in Article 22 (1), item 2.

Shall also be subject to authorization any brokering activity in relation to defence-related products, where the export of such products is made from the territory of the Grand Duchy of Luxembourg or through the territory of the Grand Duchy of Luxembourg.

Shall also be subject to authorization any brokering activity in relation to defence-related products, where the brokerage activity is exercised outside the territory of the Grand Duchy of Luxembourg by a broker established on the territory of the Grand Duchy of Luxembourg, who operates from the Grand Duchy of Luxembourg or whose center of main interests is located in the Grand Duchy of Luxembourg.

(2) Shall be considered to be brokering of defence-related products :

1. the negotiation or organization of transactions which may involve the transfer from a third country to any other third country, of defence-related products;
2. the purchase, sale or transfer of these products from a third country to any other third country ;
3. the export of these products from the territory of the Grand Duchy of Luxembourg or that of another Member State of the European Union.

Shall also be covered all auxiliary services such as the provision of technical assistance, the activity related to the conclusion of a lease, gift, loan or deposit relating to the transfer of the goods referred to, transportation services, financial, insurance and reinsurance services, general advertising and promotion.

A brokering transaction shall be considered to have been performed in the territory of the Grand Duchy of Luxembourg when one of the acts necessary to carry it out has been carried out there or if it has been attempted to put it there.

(3) (replaced by law of 2 February 2022, article 65) Article 23, paragraph 2, of the law of 2 February 2022 on arms and ammunition shall apply to brokering transactions in respect of weapons, ammunition, parts and essential parts that fall within the scope of this law and the law of 2 February 2022 on arms and ammunition.

Art. 32.

(1) It shall be prohibited to engage in any activity of brokering of defence-related products without having obtained the approval issued by the Minister responsible for Foreign Trade.

(2) (replaced by law of 2 February 2022, article 65) The approval referred to in paragraph 1 may be granted only to persons who have, for a period exceeding five years, an approval issued by the Minister responsible for Justice, in accordance with Article 17 of the law of 2 February 2022 on arms and ammunition, and which is still valid.

The Minister responsible for Foreign Trade shall inform the Minister responsible for Justice when issuing the approval provided for in paragraph 1.

(3) The approval is strictly personal and cannot be delegated to third parties.

The approval may be limited to certain operations and certain defence-related products; it may be subject to obligations and conditions.

(4) The period of validity of the approval provided in paragraph 1 is set at five years; it is renewable.

(5) (replaced by law of 2 February 2022, article 65) The Minister responsible for Justice shall inform the Minister responsible for Foreign Trade of the withdrawal, revocation, suspension and any other measure affecting the authorization issued on the basis of Article 17 of the law of 2 February 2022 on arms and ammunition.

The Minister responsible for Foreign Trade shall, on the basis of the information communicated to him by the Minister responsible for Justice, withdraw, revoke, suspend or otherwise affect the approval delivered in accordance with paragraph 1 .

Art. 33.

(1) Every person carrying on the brokering activity shall keep a register, conforming to the template to be fixed by Grand Duke Regulation, in which it shall record, without blank or erasure, the brokering transactions effected, with mention of the mark, the code of the Common Military List of the European Union, the description and the serial number, if such a number exists, of the defence-related products as well as the name and address of the supplier, intermediary and buyer.

(2) The register shall also indicate the number and date of establishment of the ministerial approval referred to in Article 32 (1). Only those defence-related products requiring authorization under this law shall be entered in the register. It shall be exhibited at the request of officers of the Grand Ducal Police and the Customs and Excise Administration.

(3) Brokers may be required to issue a copy of their register to the Minister responsible for Foreign Trade.

(4) Persons carrying on the brokering activity are required to keep at their registered office or place of establishment the register for the duration of their activity. When they cease their activity, they shall give their register to the Minister responsible for Foreign Trade.

Section 4 – Catch-All

Art. 34.

(1) (mod. by Regulation (EU) 2021/821, Art. 31) Shall be subject to authorization the export outside the European Union of military equipment which is not on the list of defence-related products as defined in Article 22 (1), where :

1. the exporter has reason to suspect that the equipment is or may be intended, in whole or in part, to contribute to the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons, or other nuclear explosive devices, or the development, production, maintenance or storage of missiles delivering such weapons;
2. the exporter has reason to suspect that the export or material affects or is likely to affect the national or external security of the Grand Duchy of Luxembourg or the safeguarding of human rights;
3. the Ministers have informed the exporter that the equipment may be intended, in whole or in part, to contribute to the development, production, handling, operation, maintenance, storage, detection, the identification or dissemination of chemical, biological or nuclear weapons, or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons;
4. the buyer or destination country is subject to an arms embargo imposed by a decision or common position adopted by the Council of the European Union or a decision of the Organization for Security and Cooperation in Europe (OSCE) or imposed by a binding resolution of the United Nations Security Council and if the Ministers have informed the exporter that the equipment in question is or may be intended, in whole or in part, for a military end-use as defined in Article 4 (1) b) of Regulation (EU) 2021/821;

1. the Ministers have informed the exporter that the material in question is or may be intended, in whole or in part, for use as parts or components of defence-related products referred to in Article 22 (1), which have been exported from the territory of the Grand Duchy of Luxembourg without the authorization required by this law or the regulations made thereunder, or in infringement with such authorization.

(2) An exporter who becomes aware that military end-use equipment not listed on the list of defence-related products referred to in Article 22 (1), and he proposes to export is intended, in whole or in part to, one of the uses referred to in items 2, 3, 4 and 5 of paragraph 1, shall inform the Ministers who inform the exporter or his representative of whether or not to apply for authorization under paragraph 1 .

Chapter 7 - Goods that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment

Art. 35.

(mod. by Regulation (EU) 2019/125, Art. 35) The export, import and transit of goods, as well as the technical assistance to be provided in relation to goods covered by Regulation (EU) No 2019/125 of the European Parliament and of the Council 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (hereinafter “Regulation (EU) No 2019/125”), shall be done in accordance with the provisions of this regulation.

The Ministers shall publish a notice in the Official Journal of the Grand Duchy of Luxembourg, providing information on the amendments to Regulation (EU) No 2019/125, adding a reference to the act published in the Official Journal of the European Union.

Art. 36

(1) The export, transit and import of leg irons and gang chains shall be prohibited.

The export, transit and import of portable electric shock devices shall be prohibited, except when those accompany the user for the purpose of his personal protection.

(2) An authorization shall be required for the export of handcuffs which have an overall dimension, including chains, measured from the outer edge of one handcuff to the outer edge of the other cuff, exceeding 240 mm.

Chapter 8 - Technical Assistance for Certain Military End-Uses

Art. 37.

(1) The direct or indirect provision of technical assistance outside the European Union by a natural or legal person residing or established in the Grand Duchy of Luxembourg, by a resident natural or legal person residing or established in the Grand Duchy of Luxembourg for the benefit of a national of a country other than a Member State of the European Union, shall be prohibited where:

1. it is or may be intended to contribute to the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices, or the development, production, maintenance or storage of missiles capable of delivering such weapons; or
2. the country of destination is subject to an arms embargo decided by a common position or joint action adopted by the Council of the European Union, or a decision of the Organization for Security and Cooperation in Europe, or imposed by a binding resolution of the United Nations Security Council, and, if such technical assistance is or may be related to a military end-use.

(2) (mod. by Regulation (EU) 2021/821, Art. 31) The provisions of paragraph 1 shall not apply to technical assistance:

1. where it is provided to a country listed in Part 3 of Annex II to Regulation (EU) 2021/821;

1. where it takes the form of transferring information that is in the public domain or constitutes basic scientific research, as these terms are respectively defined in Article 4 (b) of the Council Joint Action (2000/401/CFSP) of 22 June 2000 on the control of technical assistance related to certain military end-uses;
2. where it is in oral form and not related to items subject to one or more export control regimes, bodies and treaties, as defined in Article 1 c) of the Joint Action (2000/401/CFSP) mentioned above.

Chapter 9 – Dual-Use Items

Art. 38.

(mod. by Regulation (EU) 2021/821, Art. 31) The export, transfer, brokering and transit of dual-use items covered by Regulation (EU) 2021/821 shall be made in accordance with the provisions of this Regulation.

(mod. by Regulation (EU) 2021/821, Art. 31) The Ministers shall publish a notice in the Official Journal of the Grand Duchy of Luxembourg, providing information on the amendments to Regulation (EU) 2021/821, adding a reference to the act published in the Official Journal of the European Union.

Section 1 - Exporting of Dual-Use Items

Art. 39.

(1) (mod. by Regulation (EU) 2021/821, Art. 31) The exporters who intend to use one or more general export authorizations of the European Union, under Article 12 (1) d) of Regulation (EU) 2021/821, shall register for these purposes with the 0ffice not later than ten business days before the first export covered by the European Union’s general export authorization is made.

(2) Registration shall be effected by sending to the Office a standard form drawn up by Grand Duke Regulation.

(mod. by Regulation (EU) 2021/821, Art. 31) In any case, the exporter shall undertake to comply with the conditions of use laid down by the general export authorization of the European Union as set out in Annex II, sections A to F, of Regulation (EU) 2021/821.

(3) The exporter shall provide the Office by 31 January of each year with information on exports made on the basis of the European Union’s general export authorization during the previous year.

(mod. by Regulation (EU) 2021/821, Art. 31) This information, summarized by country, shall specify for each recipient the following information:

1. the description of the dual-use items and their references in the list in Annex I to Regulation (EU) 2021/821;
2. the quantity and value of the items exported;
3. dates of exports; and
4. the end-use and the end-user of the items.

When checking the information referred to in subparagraph 2, the Office may request any other relevant document or any additional data relating to such exports.

Art. 40.

(1) The global export authorization may be granted to an individual exporter, without prejudice to the indications referred to in the third subparagraph of Article 5 (1), for the types or categories of dual-use items to which the global export authorization applies, and shall be valid for one or more specific end-user (s) and/or in one or more specific third countries. This global authorization may set value and quantity limits to which the authorization applies.

(2) The exporter who benefit from a global export authorization shall, each year during the validity of the said authorization, submit to the Office by 31 January of each year information on exports made on the basis of the said authorization during the previous year.

(mod. by Regulation (EU) 2021/821, Art. 31) This information, summarized by country, shall specify for each recipient the following information:

1. the description of the dual-use items and their references in the list of Annexes I and IV to Regulation (EU) 2021/821;
2. the quantity and value of the items exported;
3. dates of exports; and
4. the end-use and the end-user of the items.

When checking the information referred to in subparagraph 2, the Office may request any other relevant document or any additional data relating to such exports.

Art. 41.

(1) (mod. by Regulation (EU) 2021/821, Art. 31) A general national export authorization of indefinite duration may be issued and used in accordance with the provisions of Article 12 (6) of Regulation (EU) 2021/821.

The general national export authorization shall indicate, without prejudice to the indications referred to in the fourth subparagraph of Article 16 (1), the goods and destinations to which it applies, and the elements listed in Annex III, Section C, of Regulation (EU) 2021/821.

General export authorizations will be published by the Ministers on the websites of their ministries and in the Official Journal of the Grand Duchy of Luxembourg.

(2) Exporters who benefit from a general national export authorization shall, each year during the validity of the said authorization, notify the Office by 31 January each year of the information relating to exports made on the basis of the said authorization during the previous year.

(mod. by Regulation (EE) 2021/821, Art. 31) This information, summarized by country, shall specify for each recipient the following information:

1. the description of the dual-use items and their references in the list of Annexes I and IV to Regulation (EU) 2021/821;
2. the quantity and value of the items exported;
3. the dates of exports; and
4. the end-use and the end-user of the items.

When checking the information referred to in subparagraph 2, the Office may request any other relevant document or any additional data relating to such exports.

Section 2 - Brokering of Dual-Use Items

Art. 42.

(1) (mod. by Regulation (EU) 2021/821, Art. 31) Shall be subject to authorization brokering services:

1. of dual-use items not listed in Annex I of Regulation (EU) 2021/821 for uses referred to in Article 4 (1), introductory wording and point a), of Regulation (EU) 2021/821, and
2. of dual-use items for military end-uses and destinations referred to in Article 2, item 19), and Article 4 (1), point b), of Regulation (EU) 2021/821.

(2) (mod. by Regulation (EU) 2021/821, Art. 31) Brokering services for dual-use items not listed in Annex I to Regulation (EC) No 428/2009 shall be subject to authorization if the broker has grounds for suspecting that these items are or may be intended, in whole or in part, for any of the uses referred to in Article 4 (1), introductory wording and point a), of Regulation (EU) 2021/821.

Section 3 - Transit of Dual-Use Items

Art. 43.

(1) (mod. by Regulation (EU) 2021/821, Art. 31) The Ministers may prohibit the transit of non-Community dual-use items listed in Annex I if the items are or may be intended, in whole or in part, for the uses referred to in Article 4 (1), introduction phrase and point a), of Regulation (EU) 2021/821. Before deciding whether or not to prohibit transit, the Ministers may, in individual cases, impose an authorization requirement for the transit of dual-use items listed in Annex I if the items are or may be intended, in their entirety or in part, for uses referred to in Article 4 (1), introductory wording and point a), of Regulation (EU) 2021/821.

The initial reference to Article 4 (1) of Regulation (EC) Nr 428/2009 is therefore to be understood by being a reference to Article 4 (1), introductory wording and point a), of Regulation (EU) 2021/821 of 20 May 2021.

(2) (mod. by Regulation (EU) 2021/821, Art. 31) The application of the provisions of paragraph 1 is extended to:

1. dual-use items not listed in Annex I of Regulation (EU) 2021/821 for the uses specified in Article 4 (1), introductory wording and point a), of Regulation (EC) No 428/2009, and
2. dual-use items, including those not listed in Annex I to Regulation (EU) 2021/821, for military end-uses and destinations referred to in Article 2, item 19), and in Article 4 (1), point b), of Regulation (EU) 2021/821.

(3) Paragraphs 1 and 2 shall not apply to:

1. transit of dual-use items dispatched without transhipment or change of means of transport. No transhipment or change of conveyance shall be deemed to be the discharge, for the purpose of securing the cargo, of goods in a ship or aircraft, provided that such goods are re-embarked on the same ship or aircraft;
2. transit of dual-use items for which there is already a general export authorization from the Union.

Art. 44.

(mod. by Regulation (EU) 2021/821, Art. 31) An authorization shall be required for the transfer of dual-use items, other than those listed in Annex IV to Regulation (EU) 2021/821, from the territory of the Grand Duchy of Luxembourg to another Member State of the European Union in the cases provided for in Article 11 (2) of Regulation (EU) 2021/821.

Section 4 – Catch-All

Art. 45.

(1) (mod. by Regulation (EU) 2021/821, Art. 31) An authorization shall be required for the export from the European Union of dual-use items not listed in Annex I to Regulation (EU) 2021/821 where the exporter has grounds for suspecting that these products are or may be intended, in whole or in part, for the uses referred to in Article 4 (1), introductory wording and point a), of Regulation (EU) 2021/821.

(mod. by Regulation (EU) 2021/821, Art. 31) The exporter who is aware or suspects that these items are or may be intended, in whole or in part, for the uses referred to in Article 4 (1), introductory wording and point a), of Regulation (EU) 2021/821 shall inform the Ministers who inform the exporter or his representative of the need or not to request the authorization provided for in the preceding subparagraph.

(2) (mod. by Regulation (EU) 2021/821, Art. 31) An authorization shall be required for the export from the EU of dual-use items not listed in Annex I to Regulation (EU) 2021/821 where the exporter has a reason to suspect that such export or these items affect or are likely to affect the national or external security of the country or the safeguarding of human rights.

The exporter who knows or suspects that such export or these products affect or are likely to affect the national or external security of the Grand Duchy of Luxembourg or the safeguarding of human rights, shall inform the Ministers who inform the exporter or his authorized representative of the need or not to request the authorization provided for in the preceding subparagraph.

Chapter 10 - Intangible Transfer of Technology

Art. 46.

(1) An intangible transfer of technology relating to defence-related products and dual-use items shall be subject to authorization.

(2) An intangible transfer of technology shall also be subject to authorization where such a transfer contributes or is likely to contribute to proliferation.

(3) Notwithstanding paragraphs 1 and 2 above, no authorization shall be required where the intangible transfer of technology involves knowledge in the public domain, basic scientific research or the minimum necessary knowledge for patent applications.

(4) For the purposes of this Article, the intangible transfer of technology takes place on the date on which the first act formalizes the entry into relation between the provider and the beneficiary of the know-how, the knowledge or the information transmitted.

Chapter 11 - Office for Export, Import and Transit Control

Art. 47.

(1) The Office shall give access to documents held in the exercise of its functions to any national and international administration and to external services duly committed by them, provided that such access is necessary to enable the Grand Duchy of Luxembourg to fulfil its international commitments.

(2) The Office shall liaise with the European Commission and other bodies of intergovernmental organizations to which the Grand Duchy of Luxembourg has acceded, in all matters relating to the powers of the Office and to the commitments of the Grand Duchy of Luxembourg vis-à-vis these organizations.

The Office consults, processes and uses data contained in EU databases and international export control regimes, bodies and treaties as defined in Council Position 2000/401/CFSP of 22 June 2000 relating to the control of technical assistance related to certain military final end-uses.

Chapter 12 - Supervision, Investigation and Recognition of Offenses

Art. 48.

(1) Operators shall keep detailed and complete registers of operations carried out pursuant to a general, national or EU authorization, a global authorization or an individual authorization.

(2) These registers shall contain the commercial documents, such as invoices, manifests, transport documents or other shipping documents, showing the following information:

1. the description of the good or service and its reference in the applicable list or nomenclature;
2. the quantity and value of the good or service;
3. the dates of export, transfer, import or transit;
4. the name and address, as the case may be, of the exporter, the supplier and the recipient;
5. the end-use and end-user of the good or service; and
6. for defence-related products, evidence that the recipient of the products has been informed of the export restriction that accompanies the transfer or export authorization.

The documents to be used by the operators for the authorization and registration applications referred to in this law shall be annexed to the registers.

Without prejudice to Article 33, operators providing brokering services or technical assistance under this law shall include, in the registers referred to in paragraph 1, a description of the goods which were the subject of brokering services or technical assistance, as well as the period during which the goods were the subject of those services, the destination and the countries concerned by those services.

(3) The registers referred to in paragraph 1 shall be kept for a period of ten years from the end of the calendar year in which the transaction took place. The operators shall present them to the Ministers at their request during this period.

Art. 49.

The operators shall provide, without delay, at the first request of the Ministers or the Office, the elements and documents necessary to verify the compliance of the operation carried out or provided for with the provisions of this law, the regulations made thereunder and the authorization granted, and the fulfilment of the end-use or non-re-export commitments entered into by the operators concerned for operations relating to defence-related products, goods referred to in Article 35 and dual-use items.

Art. 50.

(1) When performing the formalities required for operations on goods covered by this law and the regulations made thereunder, officials of the Customs and Excise Administration shall ensure that the operator provides the proof that he has obtained any necessary authorization.

(2) (mod. by Regulation (EU) 2021/821, Art. 31) Without prejudice to the application of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, officials of the Customs and Excise Administration may also, for a period of thirty business days, suspend the export, import or transit operation from the territory of the Grand Duchy of Luxembourg of the goods referred to in this law and the regulations made thereunder or, if necessary, prevent them by other means from leaving the European Union from the territory of the Grand Duchy of Luxembourg where they consider that:

1. relevant information was not taken into consideration in issuing the authorization; or
2. the circumstances have changed significantly since the issuance of the authorization; or
3. the operator has not informed the Ministers in the case provided for in Article 45 (1), subparagraph 2, or has not obtained the authorization provided for in Article 45 (1), subparagraph 1; or
4. dual-use items not listed in Annex I to Regulation (EU) 2021/821 and intended for export or transit are or may be intended, in whole or in part, to contribute to the development, the production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical weapons, biological, nuclear weapons or other nuclear explosive devices and missiles capable of delivering such weapons.

The suspension provided for in subparagraph 1 is renewable for respective periods of thirty business days, except for defence-related products.

Art. 51.

(1) The services of the Customs and Excise Administration shall, without delay, bring to the attention of the Office all findings and information of which they are aware concerning:

1. operations or attempts of import, export or transit operations carried out in contravention of this law or the regulations made thereunder, or the diversion of traffic;
2. their alleged perpetrators.

(2) Any public administration holding relevant information concerning operations, attempted operations or traffic diversion that involve an offense under this law or the regulations made thereunder shall be required to assist in the preparation of files by the Office.

Art. 52.

(1) Without prejudice to Article 10 of the Code of Criminal Investigation, offenses under this law and the regulations made thereunder shall be established by the Category A and B officials of the Office, by Customs and Excise Administration officials from the rank of Senior Brigadier, and Category A and B officials of the Directorate of Health.

(2) The officials referred to in paragraph 1 must have received special training on researching and finding offenses and the penal provisions of this law. The program and duration of the training as well as the methods of checking knowledge shall be laid down by Grand Duke Regulation.

(3) In the performance of their duties under this law, the designated officers of the Office, the Customs and Excise Administration and the Directorate of Health are acting as judicial police officers. They shall record the infringements by minutes that shall be authentic until proven otherwise. Their competence shall extend throughout the territory of the Grand Duchy of Luxembourg.

Before taking up office, they shall take the following oath before the district court of their domicile, sitting in civil matters: “Je jure de remplir mes fonctions avec intégrité, exactitude et impartialité” (“I swear to perform my duties with integrity, accuracy and impartiality”).

Article 458 of the Penal Code shall be applicable to them.

Art. 53.

(1) The officers of the Grand-Ducal Police and the persons referred to in Article 52 shall have access to the premises, installations, sites and means of transport and to all places where the manufacture, handling, storage or sale of goods to which this law applies and the regulations made thereunder. They may enter by day and by night, where there are serious indications that an offense under this law and the regulations made thereunder has been committed in the premises, installations, sites, means of transport and places referred to above. They report their presence to the local, facility or site manager or their replacement. He has the right to accompany them during the visit.

However, and without prejudice to Article 33 (1) of the Code of Criminal Investigation, if there are serious indications that the origin of the offense is found in the premises intended for habitation, it may be visited between six and a half and twenty o’clock by two judicial police officers, members of the Grand Ducal Police or agents within the meaning of Article 52.

(2) Under the same conditions, officials of the Grand Ducal Police and the persons referred to in Article 52 shall be authorized:

1. to carry out or have carried out tests of apparatus, equipment and technologies covered by this law;
2. to request the communication of all books, professional documents, registers and files relating to an installation, activity, export, transfer, import or transit operation, or product covered by this law, with a view to verify compliance, copy or make extracts;
3. to take or have taken samples of products, materials or substances manufactured, used, handled, stored, deposited or extracted for examination or analysis;
4. seize and, if necessary, sequestrate any apparatus, device, product, material or substance intended for export, import or transfer in violation of this law or the regulations made thereunder;
5. to take copies of the documents and to take copies or to retain the documents and correspondence which establish or concur in establishing an offense against this law or the regulations made thereunder, and to draw up, from the documents retained, an inventory of which they give a copy, signed by them, to the owner or holder.

Chapter 13 - Penalties

Section 1 - Administrative Penalties

Art. 54.

(1) Legal persons and natural persons affected by the provisions of this law may be sanctioned by the Minister responsible for Foreign Trade if:

1. they refuse to provide the documents or other information requested of them by the Ministers or the Office;
2. they have provided the Ministers or the Office with documents or other information that is found to be incomplete or incorrect;
3. they impede the exercise of the powers of the Ministers or the Office; or
4. they do not follow the orders of the Ministers or the Office.

(2) The Minister may pronounce:

1. a prohibition, limited to six months or definite, to carry out one or more activities, as well as any other restrictions on the activity of the legal or natural persons concerned by the provisions of this law;
2. a suspension for a maximum period of six months from the use of a general European Union or national authorization, or a global authorization.

After exhaustion of the remedies, the Minister shall publish on the website of his ministry and for a period equal to the duration of the prohibition, restriction or suspension, the penalties imposed under this Article, unless such publication may cause disproportionate harm to the parties involved.

(3) In exercising his powers under paragraph 2, the Minister may impose a penalty against the persons referred to in paragraph 1 to encourage them to comply with his orders. The amount of the penalty payment per day due to the breach established can not be higher than 1,250 euros, without the total amount imposed by reason of the breach found may exceed 25,000 euros.

(4) The decisions made by the Minister under paragraphs 2 and 3 are subject to appeal to the administrative court which rules as the judge of the merits.

Art. 55.

(1) Where the application of Article 54 is contemplated, the Minister shall inform the person concerned, by registered mail, of the facts that have been established and charged against him and warn him that the measure provided for by this legal provision is envisaged.

(2) The interested party has a period of ten days, Saturdays, Sundays and statutory holidays not included, from the receipt of the registered letter referred to in the preceding paragraph, to communicate his defenses by registered letter mailed to the Minister. He may also, within the same period, ask to be heard, if necessary assisted by a defender of his choice.

(3) Within thirty days, excluding Saturdays, Sundays and statutory holidays, of the expiry of the time set in paragraph 2, the Minister shall, if necessary , take the measure provided for in Article 54 and set the period during which this measure will be applicable.

(4) The Minister shall immediately notify the person concerned by registered letter to the post office of the decision taken. This decision shall take effect from the date of the notification to the person concerned.

Art. 56.

(1) Shall be prohibited in accordance with Articles 231, 249 to 253 and 263 to 284 of the General Customs and Excise law, the fact to export, import or transit goods of a strictly civilian nature in infringement with the provisions of Article 18 of this law and the regulations made thereunder.

(2) The attempt of the offenses provided for in this article shall be punished by the same penalties.

Section 2 - Penal Provisions

Art. 57.

The obstacles to the exercise of the rights of the agents referred to in Article 52 and the removal from their control provided for in Article 53 shall be punished by a fine of 251 to 2,500 euros.

Art. 58.

Shall be punished by an imprisonment for a term of eight days to five years and a fine of 251 to 250,000 euros, or by one of those penalties, the failure to comply with a restrictive measure adopted in accordance with Articles 19 to 21 of this law and the regulations made thereunder. Where the offense has resulted in a substantial financial gain, the fine may be increased to four times the amount subject to the offense.

Art. 59.

(1) Shall be punished by an imprisonment of five to ten years and a fine of 25,000 to 1,000,000 euros, or by one of those penalties only:

1. exporting, transferring, importing or transiting defence-related products in infringement with Articles 22 to 24;
2. transferring defence-related products to a recipient of defence-related products who is not certified in accordance with Articles 25 to 29;
3. importing defence-related products without being certified in accordance with Articles 25 to 29; 
4. engaging in brokering activity in infringement with Articles 31 to 33;
5. exporting, importing or transiting goods that could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, or providing technical assistance in connection with such goods, in infringement with Articles 35 and 36;
6. providing technical assistance related to certain military final end-uses in infringement with Article 37;
7. providing, or benefiting from, an intangible transfer of technology in infringement with Article 46.

(2) Shall be punished by an imprisonment from eight days to three years and a fine of 5,000 to 50,000 euros, or by one of those penalties only:

1. for a recipient of defence-related products, not to make the notification required by Article 25 (5);
2. for a provider, not to reproduce in the contract with the recipient or any act binding the parties, required notices prescribed in the first subparagraph of Article 24 (4) or where the information provided under this Article prove to be false or incomplete as regards compliance with the export restrictions relating to a transfer authorization;
3. for a supplier, not to inform the Ministers of his intention to use a general transfer authorization for the first time in accordance with the second subparagraph of Article 24 (4) ;
4. for an exporter, to fail to provide the Office with information relating to exports made on the basis of the general or global transfer or export authorization in accordance with Article 24.

Art. 60.

(1) Shall be punished by an imprisonment of five to ten years and a fine of 25,000 to 1,000,000 euros, or by of one of those penalties only:

1. exporting, transferring and transiting dual-use items in infringement with Articles 38 to 41 and 43 to 45;
2. failing to inform Ministers as provided in the second subparagraph of Article 45 (1), or export outside the European Union the goods referred to in the second subparagraph of Article 45 (1) of this law without having informed the Ministers or without the authorization provided by the first subparagraph of Article 45 (1) ;
3. performing brokering services in infringement with Article 42;
4. re-exporting dual-use goods in infringement with Articles 38 to 41 and 43 to 45 without obtaining the agreement of the Ministers if such an agreement was a condition of the import authorization.

(2) Shall be punished by an imprisonment from eight days to three years and a fine of 5,000 to 50,000 euros, or by one of those penalties only:

1. not registering with the Office before using the European Union’s general export authorization for the first time in accordance with Article 39;
2. for an exporter, to fail to provide the Office with information on exports made on the basis of the general European Union or national export authorization or the global export authorization in accordance with Articles 39 and 40.

Art. 61.

(1) Shall be punished by an imprisonment for six months to five years and a fine of 7,500 to 75,000 euros, or by only one of those penalties:

1. failing to keep or not keep the register referred to in Article 48 during the legally prescribed period or failing to present it at the request of the Ministers;
2. missing, repeatedly or significantly, to file in one or more of the mandatory information in the register referred to in Article 48;
3. for an operator, in the context of an application for authorization within the meaning of this law, to provide information that is false or incomplete;
4. for an operator, not to fulfil the commitments made in the declarations of use and requests for authorizations given to the Ministers;
5. failing to provide information within the time limits and in the manner set out in Articles 24 (5), 39 (3) and 40 (2).

Chapter 14 - Repealing Provisions

Art. 62.

Shall be repealed:

1. the amended law of 5 August 1963 concerning the import, export and transit of goods;
2. the law of 5 August 1963 concerning the surveillance of imports, exports and the transit of goods;
3. the law of 28 June 2012 on the conditions for transfers of defence-related products in the European Union.

Chapter 15 - Transitional Provisions

Art. 63.

The authorizations granted on the basis of the amended law of 5 August 1963 concerning the import, export and transit of goods, and the regulations made thereunder, shall remain valid until they expire.

Chapter 16 - Final Provisions

Art. 64.

The reference to this law shall be in the following form: “Law of 27 June 2018 on export control “.

______________________________________________________________________________

Parliamentary document 6708; extraordinary session 2013-2014 and ordinary sessions 2014-2015, 2015-2016, 2016-2017 and 2017-2018

Initial Version

Subsequent Modifications