Q&A
Expert interview: Technology transfer and export controls
The knowledge of how critical goods can be developed is subject to export controls. Dr. Ulrike Jasper offers answers on the subject of technology transfer.
03.12.2021
Spotlight: Controlled technology transfer
Abdul Qadeer Khan, regarded as the father of Pakistan’s nuclear weapons program, died on October 10, 2021. He studied in Germany, the Netherlands, and Belgium. At the Physical Dynamics Research Laboratory (FDO) in the Netherlands, he had access to centrifuge designs that later enabled him to build a uranium enrichment facility in Pakistan. In this interview, Dr. Ulrike Jasper explains the role of technology transfer in export control methodology – sharing insights into practice, examples, and references for further study.
Technology transfer: Questions and answers
Was A.Q. Khan the catalyst for codifying technology transfer in export controls?
Dr. Ulrike Jasper: The Khan case, but also that of the Rabta facility in Libya, show that the interest in export controls extends beyond critical goods to include sensitive technology. Those who acquire the basic knowledge can then produce critical goods by purchasing the necessary components.
To what extent is this reflected in export controls?
Dr. Ulrike Jasper: In export controls, the term items extends beyond goods in the physical sense to also include software and technology developed in connection with those goods. This takes these developments into account.
Can you give us an example?
Dr. Ulrike Jasper: Let’s look specifically at the EU’s dual-use list: Under 3A225, for example, we find frequency changers or generators with certain characteristics. Letter A of the dual-use item number cites goods in the form of systems, equipment, and components. Letter D names software for the listed goods. Following the same pattern, 3D225 lists software specially designed to enhance or release the performance of a frequency changer or generator, and 3E225 lists the associated technology in the form of codes or keys.
Back to technology transfer: What is meant by this term?
Dr. Ulrike Jasper: In the definitions of Annex 1 of the EU Dual-Use Regulation 2021/821, technology is defined as “specific information necessary for the development, production, or use of goods.” This knowledge is transferred in the form of “technical data” or “technical assistance.”
What does the law mean by “technical assistance”?
Dr. Ulrike Jasper: Technical assistance is defined in Art. 2 No. 9 of the EU Dual-Use Regulation as “any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service.” It can take forms such as instruction, advice, training, transmission of working knowledge or skills, or consulting services, including by electronic means as well as by telephone or any other verbal forms of assistance.
What actually happens when you send an email with sensitive content? When is a license required?
Dr. Ulrike Jasper: Technology transfer can take place in both physical and electronic form. Physical technology transfer is when the technical knowledge is put on paper and sent in this form to the third country. The email transmission you asked about is an example of electronic technology transfer. Electronic exports are also covered by exports as defined in the EU Dual-Use Regulation, which states that technology transfer occurs once the email is sent to a recipient abroad.
With this in mind, it makes sense to incorporate the licensing requirements for technology transfer into export control processes. The general export control regulations stipulate a licensing requirement only for listed goods. That means technology is only covered in connection with listed goods. Companies that do not have listed goods in their material master will generally also not have any listed technology subject to licensing in email communications.
Dr. Ulrike Jasper, AEB SE
Dr. Ulrike Jasper: More about the expert
Dr. Ulrike Jasper is an attorney who has advised AEB SE for over 10 years on issues of export control and sanctions law. In addition to providing expert support to AEB customers and helping to address issues of export control law within the company, Ulrike Jasper is also active as a presenter on European and US export control and sanctions law at various professional development institutions. She has previously published numerous articles on these topics in professional journals and AEB’s online magazine.
Official recommendations on technology transfer
The European Commission just published its “Recommendation (EU) 2021/1700 of 15 September 2021” on September 23, 2021. This Recommendation addresses “internal compliance programmes for controls of research involving dual-use items under Regulation (EU) 2021/821 of the European Parliament and of the Council setting up a Union regime for the control of exports, brokering, technical assistance, transit, and transfer of dual-use items.” Chapter 2.3.4 provides comprehensive information around “technology controls” and the associated controlled transfer of technology.
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