First of all, it is important to differentiate between chemicals which are considered “hazardous” and those considered “non-hazardous”. Aside from this general differentiation, there are several regulations that might impact export procedures, or make it altogether prohibited. Here are a few international agreements worth mentioning:
Companies planning on exporting chemicals out of the EU should understand some of the minimal requirements concerning:
When so-called “hazardous” chemicals are being exported, international harmonized criteria must be regarded concerning classification, packaging and identification.
Don’t underestimate the expense involved with clarification and implementation of all of the various national requirements needed for identification procedures and registration of chemicals.
Before a company can even be permitted to trade its product on the international market, the chemicals must be reviewed for their eligibility to be exported at will without notification or registration – regardless of its hazard status.
European countries have come to a multi-facetted agreement concerning these issues in the REACH regulation. Analogous regulations regarding chemicals have been reached in almost all nations of the world in some form or another.
When exporting chemicals which are classified as hazardous, exporters must adhere to the minimal required criteria of labeling hazardous goods appropriately for rail and road (RID/ADR), sea (IMDG) or air (IATA/DGR) according to the nine hazard categories, properly packaged and in accompaniment of proper papers, respective of means of transport.
The exporter must also check whether other regulations for export control and notification apply to the intended chemicals, but also to the goods!
An example of this can be found at EU Dual-Use Regulation (EU) No. 2017/2268, which also addresses regulations for chemicals with dual-use.
Another special regulation on certain hazardous chemicals is the PIC Regulation No. 649/2012: This regulation (PIC = Prior Informed Consent) serves as a replacement for the previous Rotterdam Agreement from 2008, addressing the import and export of hazardous chemicals and implementing the procedure for recognizing and allowing the export of certain hazardous chemicals, such as pesticides, in accordance to Union law.
Other requirements result from international harmonization laws concerning classification, identification and packaging of hazardous chemicals (GHS). The UN intends for the Globally Harmonized System (GHS) to serve as harmonization of classification and identification and is already applicable in many countries as the standard; in the EU this is the regulation (EU) no. 1272/2008 “Classification, Labelling and Packaging of Chemicals – CLP)”.
Any chemical, which falls within the criteria of the CLP regulations entering the EU must be labelled and packaged accordingly. REACH also mandates that a safety form be filled out and delivered to the customer.
The CLP regulations require that the labelling of the chemicals, as well as the safety form with all hazard information, are provided by the importer in the official language of the EU country of import.
In some cases, this may mean that the label must be in two languages, should the country have two official languages.
Should chemicals, which have been classified as hazardous, be exported outside of the EU, all of the identification, packaging and safety forms must be in accordance to that respective country’s GHS requirements: It is our formal legal obligation to inform you that in such cases, it is the importer and not the exporter who carries legal responsibility.
Tariff Classification/Identification CAS Numbers
The ability to fill out export declarations requires familiarity with certain codes and keys. One such specific measure is the eight digit identification number upon which all other requirements are based.
Should this number not be known, the exporter must provide analysis certification based on data sheets. It might be that, due to the binding customs tariff information, legal documentation is required (in as far as the information is not needed for statistical purposes). It is practically impossible for anyone who is not a chemical scientist to know the correct item number based on the chemical description.
That is why the CAS number is of great help as an international identification standard for identifying chemicals. Every known chemical substance has a unique CAS number, which can be found in the “European Customs Inventory of Chemical Substances”, on which the customs tariff number is based.
Some goods require an export permit when being exported or even crossing through a third country. The goods (incl. software and technologies) can be divided into military goods and dual-use goods, meaning they have both military and civil use.
How the goods are classified is based on the export list, in which goods named are defined with technical parameters.
The export list has two parts, whereas part I is again divided into section A (weapons, munition and artillery) and B (national dual-use goods).
The Annex I of Dual-Use Regulations includes further amendments. Within the EU, most dual-use goods are defined and controlled by the Regulation EU No. 428/2009. The EU control list is based on international agreements, the so-called export control regime.
When drafting an export declaration, the goods must be identified with a goods number. These may be subject to a code which could differentiate between those goods requiring a permit and those not requiring a permit.
The Correlation List serves to cross-examine goods in the list. This way the goods number has the respective position in the export list. The list only names those goods which require examination, due to their technical criteria. Since one number could stand for two different goods with different criteria, the number does not always fit that on the goods list.
That is why it is crucial to double check all technical criteria and compare them to the technical parameters, using data pamphlets, analysis certificates or comments made on electronic customs tariffs to ensure that these are fulfilled in accordance to the goods list.
Should there be any doubt about the requirements for export possible restrictions or prerequisites, the operator can apply for a “Nullbescheid” (zero notice document). Based on the submitted documents, a legally binding conclusion will then be made as to whether the goods are prohibited to be exported or require permission.
Should proactive research show that an export shipment is not subject to permits, a formal application must be made to the BAFA for permission for import/export.
The application must name a member of the committee or management, in accordance to § 8 Abs. 2 AWG in respect to “Standards of the Republic in examining the reliability of exporters”, in order to receive an import/export permit.
Especially chemical substances can be used for the production of drugs or explosives, which is why these are subject to import/export permits. In addition to the permit application, companies are also required to provide a license of final destination (EVE) (see § 21 Abs. 2 AWV), which states the recipients or final user and the location of final destination and intended use of the goods.
When drawing up an application, companies are strongly encouraged to implement an Internal Compliance Programm (ICP). Liability is determined for the responsible exporter through the infringement law, the general due diligence and the interpretation of §8 Art. 2 AWG.
The ICP must adhere to prerequisites which influence choice of personnel; people who are competent in due diligence, export control responsibilities and export commissioners. Workshops and regular trainings are crucial so that all employees stay qualified and capable of organizing and systemizing export controls.
For these operations, work and organizational software tools must be implemented, which can check the goods lists and sanctions lists as well as the core data maintenance of economic trade systems. Then there is the duty to monitor operations and organization, control checks and documentation ensuring that all the proper controls have been carried out correctly and all export documents properly archived.
Another instrument used for export control requirements are embargoes on specific countries (i.e. Iran, Syria, North Korea, Russia, etc.) due to political or security reasons. These embargoes often present restrictions for international trade. There are three basic types of embargoes to differentiate between and to be seen as economic sanctions toward countries. In the case of a total embargo, all economic contact is prohibited.
A partial embargo usually imposes restrictions on industrial branches, products or even limitations on travel. In the case of a weapons embargo, the export of military goods into some countries is prohibited and applications for permission are not possible. Goods-specific restrictions are defined in Annex I and IV of the Dual-Use Regulations (EU lists) and Export Lists (national lists).
Partial embargoes not only apply to goods but also include sanction measures for the purpose of fighting terrorism. That is why the EU has in some cases implemented embargoes on individuals, companies, institutions and organizations. According to the terms of agreement those names or groups on the list are prohibited any access to assets, either direct or indirect, or financial resources (so-called direct access ban). Even giving access to companies which have contact to or ownership of companies on the list is an infringement of the direct access ban.
The list of names is constantly being updated in the EU databank in the form of the “Common Foreign and Security Policy” (CFSP). Alternatively, the list can be found through the justice portal from the government and from other countries or through software companies.
A further element of control is the End Use Procedure which critically inspects the end use of civil goods. This serves as a “catch-all clause” used for single-use goods, or non-sensitive goods which are not on the export list of Dual-Use Annex I or the § 9 AWV requiring special permission.
According to Article 3 Dual-Use Regulation or § 9 AWV, a critical end use is assumed when, for example the goods to be exported are intended, or possibly intended, for military end use and the buyer or country of destination is an embargo country or if it can be used for atomic uses and the country is also subject to restrictions.
One result could be that the exporter receives a written statement from BAFA informing him as whether the goods could wholly or partially be intended for such a use. If the exporter is aware of this information, he or she must apply to BAFA to get permission for export.
In the fight against terrorism, many countries have established their own goods and sanctions lists. It is crucial that German companies ensure that in addition to complying with national export control requirements they also check to see if any US products are included either in part or whole in the production of goods, as well as to check if any US-American software or technology is used for the production of goods intended for trans-border trade.
The US-American “Export Administration Regulations”, holds multiple sanctions lists, which must be reviewed according to where and to whom the goods are to be delivered. The USA has an extraterritorial legal right to place German companies that disregard these sanctions on a blacklist, which could lead to avoidance of trade with US businesses and other national or international companies.
In order to trade chemicals in accordance with established laws and regulations, one must be aware of extensive legal requirements implemented for the export control, classification and identification, and the transport of hazardous goods. More importantly however, is that the exporter understand the most current registration requirements for chemical substances or chemical products in regards to the country of destination and knows how to comply accordingly. Any chemicals which have not properly gone through the due process will not be permitted onto the market, regardless of whether or not the chemical would be deemed hazardous for people or the environment
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