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Penalties threaten: Always observe export bans

Identify risks, solve problems and export your own goods responsibly. Not often enough can the outstanding importance of export control for companies be emphasised. The important area of export control also includes export bans. Existing export bans must be observed. Because disregarding or circumventing the export bans could have criminal consequences. In the following, we would therefore like to provide you with some interesting points on the subject of export bans for exports from Germany or the EU.

The export is free – in principle at least

In principle, the free movement of goods is free. This means that you can always export what you want and where you want to go. This is also stated in the German Foreign Trade and Payments Act (AWG). However, § 1 AWG also stipulates that the export of goods may also be restricted or prohibited, namely by further provisions of the Foreign Trade and Payments Act or the Foreign Trade and Payments Ordinance.

Export bans can also result from other EU regulations, including European Union regulations. Probably the best-known example of this is the EC Dual-Use Regulation (EC) No. 428/2009 on dual-use goods. However, there is also, for example, the PIC Regulation on export bans on chemicals. In addition, other national regulations may also become relevant, such as the Waste Shipment Act or the Cultural Property Protection Act.

The export ban is defined as the state ban on supplying certain goods or goods to certain countries. Export bans always become relevant when it comes to the protection of goods that are of higher importance than the free movement of goods. To

In particular, there are export bans and restrictions:

  • to protect public order,
  • to protect the environment (e.g. PIC Ordinance, POP Ordinance, Mercury Ordinance, Chemicals Prohibition Ordinance),
  • to protect human health,
  • to protect the plant world,
  • in the field of intellectual property,
  • for the protection of cultural property,
  • due to country- or person-specific embargos

In terms of total exports, the proportion of goods subject to authorisation is low and export bans are very rare. Violations are severely punished as criminal offences. A distinction must be made between a complete export ban (export is not possible) and an export restriction subject to licensing (export is possible after application for and issue of the export license from the competent authority, e.g. export license from the Federal Office of Economics and Export Control).

Tip: Although export bans may be comparatively rare, you should bear in mind that export restrictions for them occur all the more frequently. You should therefore always check on a case-by-case basis whether you are allowed to export goods without further ado, or whether you must, for example, apply for a corresponding export permit beforehand.

Export bans according to PIC regulation (chemicals and pesticides)

Since 01 March 2014, the EU Regulation (EU) No. 649/2012 on the export and import of hazardous chemicals (PIC Regulation) has applied in the EU. The chemicals covered by the Regulation are listed in Annex I Parts 1 – 3 and in Annex V of the PIC Regulation. It should be noted that the Annexes to the Regulation are regularly updated. For example, the EU recently introduced export bans on four bromodiphenyl ether compounds and other chemicals in 2018.

The POP Ordinance on persistent organic pollutants (e.g. dioxins) must also be observed when importing and exporting.

As regards mercury, the Mercury Regulation (Regulation (EC) No 1102/2008) bans exports of metallic mercury and certain mercury compounds.

Export bans in the field of war weapons

The protection of public order, which also includes the protection of the free democratic basic order and the security of the population, is of higher priority and therefore more worthy of protection than the freedom of movement of goods. There are export bans on weapons of war here. War weapons are objects, substances and organs intended for warfare (cf. §1 Act on the Control of War Weapons – KrWaffKontrG). War weapons are capable of causing destruction or damage to persons or property and serve as a means of force in armed conflicts between states. War weapons are covered by the so-called War Weapons List (KWL). The KWL is a section of the goods listed in Part I Section A of the Export List to the Foreign Trade Ordinance.

In the field of war weapons, for example, the export of:

  • Nuclear Weapons (No. 1 and 2 KWL)
  • biological and chemical weapons (No.3 – 6 KWL)
  • Anti-personnel mines (No 43 KWL)
  • Cluster munitions (No. 59 and 60 KWL)

There are no exceptions, facilitations or authorisations to these export bans. However, some goods are also classified as weapons of war, which actually do not. It is then worthwhile for an export prohibition lawyer to assess the classification by the authorities.

Export bans under personal or country embargoes

Since we have just dealt with the export bans on weapons of war, we should not forget to mention the export bans on embargoes on individuals or countries. Embargoes are reactions to current events on the international stage, with the idea of international peacekeeping. This can also result in export bans.

Prohibitions in the field of chemical weapon precursors

The protection of public order legal assets also includes export bans on chemical weapon precursors. The basic idea behind these bans is taken from the Chemical Weapons Convention. The aim of the Chemical Weapons Convention is a worldwide ban on chemical weapons and the destruction of existing stocks of chemical weapons. For this reason, the export of chemicals that can be used in the manufacture of chemical weapons is also strictly monitored. The following export bans apply to chemicals:

Chemicals listExport bans
Chemicals in Schedule 1It is prohibited to use toxic chemicals and precursors listed in List 1:

  • from a non-contracting State,
  • from a non-contracting State,
  • to a third Contracting State if they have already been imported from another Contracting State,
  • if the country of origin, destination or provenance, or another country of transit, is a non-Contracting State

It is also forbidden to perform the listed acts as a German abroad. In the area of Schedule 1 chemicals, there are no facilities or authorisation possibilities

Chemicals in Schedule 2The import and export of Schedule 2 chemicals from a non-Contracting State is prohibited – this also applies if a German carries out these activities abroad.


This prohibition only does not apply if the proportion of chemicals in Schedule 2 Nos. 1 to 3 does not exceed 1% or the proportion of chemicals in Schedule 2 Nos. 4 to 14 does not exceed 10%. The prohibition shall also not apply where Schedule 2 chemicals are contained in goods intended for retail sale and personal use as consumer goods

Chemicals in Schedule 3In the area of Schedule 3 chemicals, there are no export bans, only licensing requirements


Export bans to protect the environment

Society recognizes that it is becoming increasingly important to preserve our planet and resources. For this reason, export bans were also created to protect the environment. For example, it is generally prohibited to export waste from the European Union for disposal. These bans are intended in particular to avoid „waste tourism“.

However, the export of waste to EFTA states (Switzerland, Norway, Liechtenstein and Iceland) is permitted if the country of destination does not prohibit the import of the waste or if the competent licensing authority in Germany does not doubt at least that the disposal process will be handled in an environmentally sound manner (Article 34(3) of Regulation (EC) No 1013/2006). However, export is only possible if the goods have successfully undergone the so-called notification procedure (see Art. 4 of Regulation (EC) No. 1013/2006).

For the export of waste for recovery, it depends on whether the OECD Decision applies to the countries to which the waste is to be exported. The export of hazardous waste for recovery, some of which is listed in Annex V of Regulation (EC) No 1013/2006, to countries to which the OECD Decision does not apply, is generally prohibited. The export of „yellow waste“ for recycling in overseas countries and territories is also prohibited. With regard to exports to the Antarctic, the export of waste for recycling is prohibited under Art. 39 of Regulation (EC) No. 1013/2006.

The import and export of ozone products is also partially prohibited. Export within the meaning of the Ozone Regulation is the transfer of substances, products and equipment which fall under Regulation (EC) No 1005/2009 (Ozone Regulation) and are regarded as Community goods from the customs territory of the Community, insofar as the territory is covered by the ratification of the Montreal Protocol by a Member State, or the re-export of substances, products and equipment if they are regarded as non-Community goods (Art. 3 No 19 Ozone Regulation).

Here the export of controlled substances according to Annex I of the Ozone Regulation or of products and equipment containing or requiring these substances is prohibited, unless it is a matter of personal effects (i.e. personal effects that are transported, e.g. as personal effects). This prohibition does not apply to the exceptions listed in Art. 17 (2) and (3) Ozone Regulation. The export of new substances listed in Annex II Part A of the Regulation is also prohibited. According to Art. 24 sentence 2 of the Ozone Regulation, however, this prohibition does not apply to new substances if they are used as starting materials or for laboratory and analytical purposes or for exports after previously exempted imports. Furthermore, Article 20 of the Ozone Regulation prohibits exports of controlled substances and of products and equipment containing or relying on controlled substances to a non-Contracting State. The current list of States that have ratified the Montreal Protocol and all amendments (States Parties) is available on the Internet.

You should also be aware that there are also restrictions and bans on the export of mercury. Since 15 March 2011 the export of metallic mercury, cinnabar ore, mercury (I) chloride, mercury (II) oxide and mixtures of metallic mercury and other substances, including mercury alloys with a mercury concentration of at least 95% by mass, from the EU has been prohibited (Art. 1 para. 1 Mercury Regulation). The export of the above compounds for research and development, medical and analytical purposes is exempted from this prohibition.

Prohibitions to protect wildlife

The export of animals, goods and objects may be prohibited or restricted by the Federal Ministry of Food and Agriculture (BMEL) in accordance with animal health law. The European Union may also impose special protective measures where the epidemiological situation in a Member State so requires. In individual cases, export bans may be imposed for certain animals or animal products.

Tip: The imposition of export bans may also become necessary in the short term in response to current events. Exporters of products in the above-mentioned sectors should therefore always keep an eye on current developments in the area of export bans.

Violations of export bans: Severe penalties threaten

Remember that violations of export bans can be a serious crime. Not only sensitive fines but also imprisonment are threatened. If an investigation has been initiated into the violation of an export ban, you should consult an export ban lawyer. The legal provisions and criminal offences in this area are very diverse and there is often an overlap between German law and EU law.

Strict export bans are generally very rare, as in most cases there are no total export bans, but export restrictions or licensing requirements. Perhaps this is also the reason why violations of export bans are punished comparatively severely. If you violate an existing export ban, then this violation will be punished as a criminal offence and not as an administrative offence.

An export ban is violated if the export of the goods is prohibited. The export ban is usually violated if the goods are dispatched for export. The completion of the deed takes place at the moment when the goods cross the external border of the European Union. Up to this point, withdrawal from the experiment is still possible.

If, for example, the goods are stopped by customs before they cross this border, they may only be punishable by an attempt.

Rechtsanwalt Anton Schmoll

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