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Recent experience with exports from Norway to Russia

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Our recent experiences with the Norwegian Ministry of Foreign Affairs (Utenriksdepartementet - "MFA") point to its generally restrictive attitude towards exports from Norway to Russia.

Norwegian export control rules

In Norway, export control is governed by the Export Control Act (LOV-1987-12-18-93) and the "Regulation relating to the export of defence-related products, dual-use items, technology and services" (FOR-2013-06-19-718) ("Export Control Regulation"). The Export Control Act and the Regulation are largely inspired by the corresponding EU Regulations (e.g. the list of dual-use items found in Annex I to Council Regulation (EC) No 428/2009 has been directly transferred into Annex II of the Export Control Regulation). However, with a view to Article 123 of the EEA-Agreement, some aspects of Norwegian export control rules differ from their European counterparts.

A prominent example of this deviation can be seen in the so called catch-all clauses stipulated in Sec. 7 of the Export Control Regulation. It constitutes an obligation for the exporter to apply for an export license even if the products are not listed as a strictly military or dual-use item (the definitions of which are generally the same as in Regulation 428/2009).

Specifically relevant is Sec. 7 b) of the Export Control Regulation which makes the export of "any products, technology or services for military use to areas that are subject to an arms embargo imposed by the UN Security Council under Chapter VII of the UN Charter or by any other regime Norway has joined" subject to an export license. Based on our most recent experience with the MFA, their definition of "military use" under Sec. 7 b) seems to be wider than normal and can also include civil products which bear an unacceptably high risk (based on the sole discretion of the MFA) to be used for military purposes.

At least equally relevant is Sec. 7 d) of the Export Control Regulation which makes the export of "any products, technology or services that may directly serve to develop the military capability of a state in a way that is incompatible with key Norwegian security and defence interests" subject to an export license. Here again, the argumentation by the MFA to decline such license is often unforeseeable for, and the underlying reasons undisclosable to the applying exporter due to national security concerns.

Exporters from Norway should therefore be particularly careful to allow sufficient time when applying for an export license to Russia, and also be aware that potential dual-use items need to be explained in detail, even if they are not included in Annex I to Regulation 428/2009 (same as Annex II of the Export Control Regulation). Currently, the MFA's assessment of exports to Russia can be expected to take three months, sometimes even more.

Norwegian sanctions

In contrast, Norwegian rules on sanctions are in practice a direct copy the EU's sanctions. This includes the EU's sanctions on Russia in response to its action in the Ukraine (Regulation 833/2014) which have been transferred to the Norwegian Regulation concerning the integrity of the Ukraine (FOR-2014-08-15-1076). Russia was thereby put under an arms embargo in the meaning of Sec. 7 b) of the Export Control Regulation. However, this will not be apparent to non-Norwegian speakers who use the official English translation of the Export Control Regulation. The translation does not include the last part of the sentence regarding "other regimes that Norway has joined", and therefore indicates that only arms embargoes imposed by the UN are relevant. In reality, the extended obligation to apply for an export license (or export permission in the case of products for the oil industry) imposed by the catch-all clauses of Sec. 7 of the Export Control Regulation applies to all exports to Russia.

Recent experience

The generally reluctant position assumed by the MFA towards exports to Russia is illustrated by a recent case in which a Norwegian exporter was in the end declined an export license. The transaction regarded the delivery of parts to a final product from Norway to an EU-country. There, the final product was supposed to be assembled and subsequently delivered to a Russian end-user. The assembler had approached its national export control agency to apply for an export license but the agency found that the export of the final product (from the EU country to Russia) did not even require a license. Even against this background, the Norwegian exporter (who had informally contacted the MFA about the proposed export) was informed that, with a view to Sec. 7 b) of the Export Control Regulation, an export license could not be granted.

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