With effect from 1.9.2023, the Federal Office of Economics and Export Control (BAFA) will bring a total of five new General Authorisations (AGG) into force and at the same time extended or revised all existing (national) AGG of the BAFA on certain armaments and certain dual-use goods.
Through these extensions of the AGG, BAFA would like to free up its official capacities, which are necessary to be able to process the more difficult and important cases in individual approval procedures more promptly and in a more concentrated manner than before. For the EU, NATO and other close partner countries of the Federal Republic of Germany in particular, there will therefore no longer be any time-consuming individual approval procedures in cases clearly defined by the AGG in the future and those AGG will be applied instead.
As a result, BAFA’s decision leads to significantly better planning and immediate deliverability for the affected economy, for the transactions covered by the AGG. The other side of the coin, however, is that the compliance requirements for the lawful use of such AGGs must be checked and fulfilled by the respective company. The provision of an appropriate Internal Compliance Program (ICP) is therefore essential because a violation of an AGG would be an unauthorized transaction in the worst case, which, together with intentional action, would have criminal consequences. Therefore, it is important to be careful with the exact requirements for the use and any ancillary provisions of the AGG.
In the practical search for a possibly relevant AGG and its exact contents, the tool of the so-called “AGG-Finder” on the BAFA website supports with concrete suggestions after entering the applicable goods classification and the country of destination. Via the AGG Finder, the user then receives a (non-binding) proposal for the possibly relevant AGG together with their official texts and can and must check them more closely for the facts of the case. The previous practice of parallel publication of the AGG in the Federal Gazette will be terminated on September 1, 2023. From there, the AGG will only be available online via the BAFA homepage. The AGG of the EU, on the other hand, are published in Annex II of the EU Dual-use Regulation (2021/821) and the BAFA publishes consolidated versions on its homepage.
The following table provides a complete overview of all AGGs valid from 1 September 2023 with a brief description of their contents. The new AGG of the BAFA are marked in red. The AGG, marked in black and bold, have been revised by BAFA and partially expanded in their scope of application:
The existing European AGGs (EU 001 to EU 008) will not be changed as of 1.9.2023. These would also have to be decided at the European level. In principle, the European AGGs take precedence over the application of the national AGGs in case that both should be relevant at the same time. There is only one exception to this with EU 008 and AG 16, where the user has the right to choose. National AGGs of the BAFA and European AGGs of the EU for (certain) dual-use goods can also be used by an economic operator based in Germany for transactions via other EU member states, therefore these AGGs are also recognised by other EU authorities. However, this does not apply to AGG on armaments – depending on the EU Member State in which these armaments are physically located, appropriate permits may have to be applied for from this Member State or national AGGs may also have to be used there.
All national AGGs contained in the above overview apply from 1 September 2023 to 31 March 2024. For further validity, the national AGGs always require a corresponding extension, which in the past has taken place regularly and promptly but can always include changes in content that users must pay attention to. The European AGGs, on the other hand, apply indefinitely – but are still subject to irregular changes, such as recently due to the Russian invasion of Ukraine.
At the same time as the changes, BAFA decided with effect from 1 September 2023 that so-called “zero notices” (“Nullbescheide”), “information on the list of goods” (Auskünfte zur Güterliste”) and the “AV2 declarations” of the responsible export officer (“Ausfuhrverantwortlicher”) from the management board will no longer be valid for just one year, but for two years in the future. This approach is to be welcomed by the business community, but again, the downside is that it is easier to experience changes in various places within two years than within just one year, and the users of these information and declarations must monitor this on their own responsibility.