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
Adopted by the
States 1st April 2008
Sanctioned by
Order of Her Majesty in Council 13th May 2009
Registered by the
Royal Court 29th
May 2009
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
(1) In
this Law, unless the context otherwise requires –
“1999 Law” means the Customs and Excise (Jersey) Law
1999[1];
“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[2];
“Minister”
means the Minister for 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).
(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
Minster 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[3], 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) The
notice published pursuant to Article 3 of the Official Publications
(Jersey) Law 1960[4] in respect of a temporary
control Order shall specify the period for which the Order is expressed to be
in force.
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 Article
19 of 1999 Law amended
In Article 19 of the 1999 Law –
(a) in
paragraph (1), the words “, or exportation from,” shall be
deleted;
(b) in
paragraph (2), the words “, exported or brought to any place for the
purpose of being exported” shall be deleted;
(c) in
paragraph (2), the words beginning “, save that” and ending
“thinks fit” shall be deleted;
(d) in
paragraph (3), the words “, exported or brought to any place for the
purpose of being so exported” shall be deleted;
(e) in
paragraph (3), the words “ or exportation” shall be deleted.
15 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.
16 Citation
and commencement
This Law may be cited as the Export Control (Jersey) Law 2009 and
shall come into force on such day or days as the States may by Act appoint and
different days may be appointed for different provisions and different
purposes.
m.n. de la haye
Greffier of the States