Alert for the UK's Knowledge Economy: New Dual-Use Items Controlled When Exported from Great Britain (England, Wales and Scotland)

The Export Control (Military and Dual-Use Lists) (Amendment) Regulations 2023, S.I. 2023 No. 302 update ensures the UK's implementation of the changes to address emerging technologies made by the Wassenaar Arrangement in December 2021. The Wassenaar Arrangement is a group of nations, including the United States, the UK, and many member states of the European Union, interested in controlling cross-border trade in dual-use goods and technology.

Persons in Northern Ireland have needed to comply with controls on these new items since 12 January 2023, because that is the date when the European Union updated its list with immediate effect on member states; Northern Ireland effectively being treated as a member state for this purpose under the Northern Ireland Protocol to the EU/UK Withdrawal Agreement of 24 January 2020.

Persons in the United States have needed to implement the updated list of controlled items since 15 August 2022 (with a delayed date for one item).

The most important items added to the list involve advanced semiconductors and propulsion, being the following:

• Material and technology related to two leading materials for high-power semiconductor devices, substrates of Gallium Oxide and diamond.
• Software (electronic computer-aided design) for the development of integrated circuits with Gate-All-Around Field-Effect Transistor structure.
• Technology to increase the efficiency of gas turbine engines by pressure gain combustion.

Gallium Oxide and pressure gain combustion appear to be of interest to several universities in Great Britain.

These items demonstrate the increasing trend for controlling the export of software and technology, which can occur electronically by touching a keyboard or keypad. Any participants in the knowledge economy in Great Britain researching in these areas, such as universities, research institutes, or companies, should take steps to avoid exporting the newly listed material, software, and technology unless (i) in the case of technology, they have determined that the exported information qualifies for an exception as "basic scientific research" or being "in the public domain", (ii) they have registered on SPIRE to obtain coverage of a relevant UK dual-use open general export license or retained EU general export authorisation, or (iii) they have obtained the pre-approval of the specific export by the UK's Export Control Joint Unit.

Also, such participants should alert relevant people in their organisations to the fact that the export of these items is now controlled, so as to avoid inadvertent or unlicensed exports.

Since the end of the Brexit transition period (31 December 2020), the UK has derived its export rules on dual-use items directly from the Wassenaar Arrangement, rather than indirectly via the EU. This update demonstrates the UK's determination to maintain its list of controlled dual-use items in lockstep with the EU, which sets them out in Annexes to EU Council Regulation No. 428/2009, if not post-transition period changes made by the EU to the Regulation's Articles themselves. There was a major revision to the Articles of EU Council Regulation No. 428/2009 in September 2021 (termed the 'Recast'), also adding two new general export authorisations, which has not been adopted by the UK.

Brexit also means that these UK updates do not benefit from the automatic consolidation on the UK statute book of changes to these Annexes, in contrast to the EU's practice. Parliament has now updated the Annexes three times since the end of the transition period, and has not judged it necessary to consolidate any set of changes with the Annexes to Regulation No. 428/2009 that were retained on the UK statute book. Of course, UK participants wishing to see the updates of S.I. 2023 No. 302 consolidated in Annex I can refer to the EU's consolidated version of Annex I.

As of the date of writing, these changes do not yet appear on SPIRE's 'Goods Checker'.

For more information on navigating how the UK's export control rules apply to these newly listed items, please contact Thomas Dick in our Corporate team on 020 7665 0971 or your usual VWV contact. Alternatively, please complete the form below.