Export Control (Jersey) Law
2009
A LAW to make provision enabling controls to be imposed on the
exportation of goods, the transfer of technology, the provision of technical
assistance overseas and activities connected with trade in controlled goods and
for connected purposes
Commencement [see endnotes]
1 Interpretation
(1) In this Law, unless the
context otherwise requires –
“1999 Law” means the Customs and Excise (Jersey)
Law 1999;
“Community provision” means a provision of a directive
or regulation (within the meaning of Article 249 of the Treaty
establishing the European Community);
“control Order” means an Order made under Article 2,
3, 4 or 5;
“export controls” has the meaning given in Article 2(2);
“Island person” has the same meaning as in the Crime and Security (Jersey)
Law 2003;
“Minister” means the Minister
for Justice and Home Affairs;
“objects of cultural interest” includes objects of
historical or scientific interest;
“officer” has the same meaning as in the 1999 Law;
“place” includes a vehicle, vessel or aircraft;
“technical assistance” has the meaning given in Article 4(2);
“technical assistance controls” has the meaning given in
Article 4(2);
“technology” means information (including information
comprised in software) that is capable of use in connection with –
(a) the
development, production or use of any goods or software;
(b) the
development of, or the carrying out of, an industrial or commercial activity or
an activity of any other kind whatsoever;
“temporary control Order” means a control Order made by
virtue of Article 7(1);
“trade controls” has the meaning given in Article 5(2);
“transfer”, in relation to any technology, means a
transfer by any means (or combination of means), including oral communication
and the transfer of goods on which the technology is recorded or from which it
can be derived, other than the exportation of such goods; and
“transfer controls” has the meaning given in Article 3(2).[1]
(2) In this Law, any
reference to controls that are or may be imposed by a Community provision means
such controls that are or may be imposed on member States, whether or not they
also apply to Jersey.
2 Export
controls
(1) The Minister may by
Order make provision for, or in connection with, the imposition of export
controls in relation to goods of any description.
(2) For this purpose,
“export controls” in relation to any goods, means the prohibition
or regulation of their exportation from Jersey or their shipment as stores.
(3) Goods may be described
in the Order wholly or partly by reference to the uses to which the goods, or
any information recorded on or derived from them, may be put.
(4) The power to impose
export controls is subject to Article 6.
(5) The Minister may by
Order make provision in connection with any controls that may be imposed by a
Community provision concerning the exportation of goods.
(6) For the avoidance of
doubt, export controls may be imposed in relation to the removal from Jersey of
vehicles, vessels and aircraft (as an exportation of goods), whether or not
they are moving under their own power or carrying goods or passengers.
3 Transfer
controls
(1) The Minister may by
Order make provision for or in connection with the imposition of transfer
controls in relation to technology of any description.
(2) For this purpose
“transfer controls”, in relation to any technology, means the
prohibition or regulation of its transfer –
(a) by a
person or from a place within Jersey to a person or place outside Jersey;
(b) by a
person or from a place outside Jersey to a person who, or a place which, is
also outside Jersey (but only where the transfer is by, or within the control
of, an Island person);
(c) by a
person or from a place within Jersey to a person who, or a place which, is also
within Jersey (but only where there is reason to believe that the technology
may be used outside Jersey); or
(d) by a
person or from a place outside Jersey to a person or place within Jersey (but
only where the transfer is by, or within the control of, an Island person and
there is reason to believe that the technology may be used outside Jersey).
(3) Technology may be
described in the Order wholly or partly by reference to the uses to which it
may be put.
(4) The power to impose
transfer controls is subject to Article 6.
(5) The Minister may by
Order make provision in connection with any controls that may be imposed by a
Community provision on the transfer of technology.
4 Technical
assistance controls
(1) The Minister may by
Order make provision for or in connection with the imposition of technical
assistance controls in relation to technical assistance of any description.
(2) For this
purpose –
“technical assistance controls”, in relation to any
technical assistance, means the prohibition or regulation of participation in
the provision outside Jersey of that technical assistance; and
“technical assistance” means services which are provided
or used, or which are capable of being used, in connection with the
development, production or use of any goods or technology.
(3) Technical assistance
may be described in the Order wholly or partly by reference to the uses to
which it (or the goods or technology concerned) may be put.
(4) The power to impose
technical assistance controls –
(a) shall
be exercised only for the purpose of imposing controls corresponding to or
connected with any of the following –
(i) export controls
or transfer controls imposed under Article 2 or 3,
(ii) controls
imposed by a Community provision on the exportation of goods,
(iii) controls
imposed by a Community provision on the transfer of technology; and
(b) is
subject to Article 6.
(5) For the purposes of
paragraph (1), a person participates in the provision of technical
assistance outside Jersey if that person –
(a) provides
technical assistance outside Jersey or agrees to do so; or
(b) makes
arrangements under which another person provides technical assistance outside
Jersey or agrees to do so.
(6) The Minister may by
Order make provision in connection with any controls that may be imposed
by –
(a) a
Community provision on the exportation of goods; and
(b) a
Community provision on participation in the provision of technical assistance.
(7) Technical assistance
controls may be imposed on acts done outside Jersey but only if they are done
by a person who is, or is acting under the control of, an Island person.
5 Trade
controls
(1) The Minister may by
Order make provision for or in connection with the imposition of trade controls
in relation to goods of any description.
(2) For this purpose,
“trade controls”, in relation to any goods, means the prohibition
or regulation of –
(a) their
acquisition or disposal;
(b) their
movement; or
(c) activities
which facilitate or are otherwise connected with their acquisition, disposal or
movement.
(3) Goods may be described
in the Order wholly or partly by reference to the uses to which the goods, or
any information recorded on or derived from them, may be put.
(4) The power to impose
trade controls –
(a) shall
be exercised only for the purpose of imposing controls corresponding to or
connected with any of the following –
(i) export controls
or transfer controls imposed under Article 2 or 3,
(ii) controls
imposed by a Community provision on the exportation of goods,
(iii) controls
imposed by a Community provision on the transfer of technology; and
(b) is
subject to Article 6.
(5) The Minister may by
Order make provision in connection with any controls that may be imposed by a
Community provision on, or on activities which facilitate or are otherwise
connected with, the acquisition, disposal or movement of goods.
(6) For the purposes of
this Article –
(a) a
person acquires goods if that person buys, hires or borrows them or accepts
them as a gift; and
(b) a
person disposes of goods if that person sells, lets on hire, lends or gives
them.
(7) For the purposes of
this Article –
(a) the
making of an agreement with another to acquire, dispose of or move goods; and
(b) the
making of arrangements under which another person –
(i) acquires,
disposes of or moves goods, or
(ii) agrees
with a third person to acquire, dispose of or move goods,
are activities which facilitate the acquisition, disposal or
movement of the goods.
(8) Trade controls may be
imposed on acts done outside Jersey but only if the acts are done by a person
who is, or is acting under the control of, an Island person.
6 Control
Orders: restriction of power to impose controls
(1) Subject to Article 7,
the power to impose export controls, transfer controls, technical assistance
controls or trade controls may be exercised only where authorized by this
Article.
(2) Controls referred to in
paragraph (1) may be imposed for the purpose of giving effect
to –
(a) any
Community provision or a joint action or common position adopted, or a decision
taken, by the Council under Title V of the Treaty on European Union; or
(b) an
international obligation of the United Kingdom that applies to Jersey.
(3) Export controls may be
imposed in relation to any description of goods within one or more of the
categories specified in the Schedule for such controls.
(4) Transfer controls may
be imposed in relation to any description of technology within one or more of
the categories specified in the Schedule for such controls.
(5) Technical assistance
controls may be imposed in relation to any description of technical assistance
within one or more of the categories specified in the Schedule for such
controls.
(6) Trade controls may be
imposed in relation to any description of goods within one or more of the
categories specified in the Schedule for such controls.
7 Exceptions
to Article 6
(1) Article 6 shall
not apply to the power to impose any controls if the control Order which
imposes them provides for its expiry no later than the end of the period of
12 months beginning with the day on which it is made (a “temporary
control Order”).
(2) Article 6 does not
apply in relation to provisions of a control Order which –
(a) amend
an earlier control Order; or
(b) revoke
and re-enact (with or without modifications) an earlier control Order,
unless they impose new controls or strengthen the controls
previously imposed.
(3) In paragraph (2),
“earlier control Order” does not include a temporary control Order.
(4) The Minister shall, no
later than 14 days after making a temporary control Order, lodge a
proposition seeking the States’ approval of the Order.
(5) The minimum lodging
period for the proposition shall be 14 days.
(6) Paragraph (5) is
without prejudice to any power that the States may have, pursuant to Standing
Orders made under Article 48 of the States of Jersey
Law 2005, to reduce or waive a minimum lodging period.
(7) The States shall debate
the proposition no later than 60 days after it is lodged, unless they
decide otherwise.
(8) The States may resolve
to approve or annul the Order, but may not amend it.
(9) Notwithstanding
paragraph (1), a temporary control Order shall expire –
(a) 14 days
after it is made, where the Minister does not comply with paragraph (4);
(b) 60 days
after the proposition relating to it is lodged, where the States do not comply
with paragraph (7).
(10) Where the States resolve to
annul a temporary control Order, the Order shall cease to have effect
immediately, but without prejudice to anything previously done under it or to
the passing of a new Order.
(11) Paragraphs (4) to (8)
shall not apply to a temporary control Order which provides for its expiry
within the period of 14 days after it is made and shall cease to apply to
a temporary control Order which expires or is revoked before the States debate
it.
(12) For the purposes of
paragraphs (7) and (9)(b), there shall be disregarded any day when the
States are not in session.
(13) [2]
8 Control
Orders: supplemental provisions
(1) A control Order may
(without prejudice to the generality of the power under which it is made) make
provision –
(a) for
an activity to be prohibited unless authorized by a licence granted by a person
specified in the Order and for the granting of such a licence (whether subject
to conditions, restrictions or requirements);
(b) creating
exceptions from any provision of the Order;
(c) requiring
persons to keep and produce records;
(d) requiring
persons to provide information to any person specified in the Order;
(e) about
the purposes for which information held in connection with anything done under
the Order may be used;
(f) about
the persons to whom any such information may be disclosed;
(g) for
the enforcement of the Order (including powers and duties of any person
enforcing it);
(h) providing –
(i) that
contravention of a provision of the Order shall be an offence, and
(ii) for
the penalty for any offence so created to be imprisonment for a specified
number of years, which shall not exceed 10 years, or a fine (whether specified
to be on the standard scale or otherwise), or both;
(i) providing
that any person who aids, abets, counsels or procures the commission of an
offence under the Order shall be guilty of the offence and liable in the same
manner as a principal offender to the penalty provided for that offence;
(j) providing
that where an offence under the Order committed by a limited liability
partnership or body corporate is proved to have been committed with the consent
or connivance of, or to be attributable to any neglect on the part of –
(i) a person who is a
partner of the partnership, or director, manager, secretary or other similar
officer of the body corporate, or
(ii) any
person purporting to act in any such capacity,
the person mentioned in clause (i) or (ii) is also guilty of
the offence and liable in the same manner as the partnership or body corporate
to the penalty provided for the offence;
(k) providing
that where an offence under the Order is committed by a body corporate whose
affairs are managed by its members, any rule made pursuant to sub-paragraph (j)
shall apply in relation to acts and defaults of a member in connection with the
member’s functions as if the member were a director of the body
corporate;
(l) for
forfeiture of any thing in respect of which there has been a contravention of
the Order; and
(m) for the
service of notices.
(2) A control Order
may –
(a) amend,
repeal or revoke any enactment or apply (with or without modification) any of
the provisions of any enactment, for the purposes of this Law;
(b) provide
for any reference in the Order to a document (including a technical list by
reference to which any Community provision or international obligation
operates) to take effect as a reference to that document as revised or re-issued
from time to time; and
(c) contain
such consequential, incidental, supplementary and transitional provisions as
appear to the Minister to be necessary or expedient for the purposes of the
Order.
9 Control
Orders: restriction of prohibition or regulation of certain activities
(1) The Minister shall not
make a control Order that has the effect of prohibiting or regulating any of
the following activities –
(a) the
communication of information in the ordinary course of scientific research;
(b) the
making of information generally available to the public;
(c) the
communication of information that is generally available to the public,
unless the interference by the Order in the freedom to carry on the
activity concerned is necessary (and no more than is necessary).
(2) The question whether
any such interference is necessary shall be determined by the Minister by
reference to the circumstances prevailing at the time the Order is made and
having considered the reasons for seeking to control the activity in question
and the need to respect the freedom to carry on that activity.
10 Guidance
about the exercise of functions under control Orders
(1) This Article applies to
licensing powers and other functions conferred by a control Order on any person
in connection with controls imposed under this Law.
(2) The Minister may give
guidance about any matter relating to the exercise of any licensing power or
other function to which this Article applies.
(3) The Minister shall give
guidance about the general principles to be followed when exercising licensing
powers to which this Article applies.
(4) The guidance required
by paragraph (3) shall include guidance about the consideration (if any)
to be given, when exercising such powers, to –
(a) issues
relating to sustainable development; and
(b) issues
relating to any possible consequences of the activity being controlled that are
of a kind mentioned in the Table in paragraph 3 of the Schedule,
but this paragraph does not restrict the matters that may be
addressed in the guidance.
(5) Any person exercising a
licensing power or other function to which this Article applies shall have
regard to any guidance that relates to the licensing power or other function
concerned.
(6) A copy of any guidance
shall be presented to the States and published in such manner as the Minister
may think fit.
(7) In this Article,
“guidance” means guidance stating that it is given under this
Article.
11 Annual
reports
(1) The Minister shall, in
each year, lay before the States in respect of the previous year –
(a) a
report on the operation during the year of any Order under Article 2 that
relate to the export of objects of cultural interest; and
(b) a
report on other matters relating to the operation of this Law (and any control
Orders made under it) during the year.
(2) A report required by
paragraph (1) shall be laid as soon as practicable after the end of the
year to which it relates.
(3) The first report to be
laid shall relate to the 12 month period that commences with the date on
which this Article comes into force and in each following year the report
relating to that year shall commence on the anniversary of that date.
12 Power
to amend Schedule
(1) The States may by
Regulations amend the Schedule.
(2) Regulations made under
paragraph (1) may include such incidental, consequential and transitional
provisions as the States consider to be necessary or expedient for the purpose
of the Regulations.
13 Application
of 1999 Law
(1) This Law (and any
enactment made under it), insofar as it relates to the imposition of export
controls, is an assigned matter for the purpose of the 1999 Law.
(2) This Article does not
derogate from the power in Article 8(2)(a) to apply provisions of
the 1999 Law for the purposes of this Law.
14 Transitional
provisions and savings
The Minister may by Order make such transitional provisions and
savings as the Minister considers necessary for the purposes of the coming into
force of any provision of this Law.
15 Citation
This Law may be cited as the Export Control (Jersey) Law 2009.