10 Grasping the nettle: Ending Europe’s Trade in Execution and Torture Technology The Commission Proposal defines “brokering services” as: “(a) the negotiation or arrangement of transactions for the purchase, sale or supply of relevant goods from a third country to any other third country, or (b) the selling or buying of relevant goods that are located in a third country for their transfer to another third country.”25 The Proposals explicitly exclude the “sole provision of ancillary services” from the definition of brokering. Consequently the sole provision of “transportation, financial services, insurance or re-insurance, or general advertising or promotion” will not be controlled by these proposals.26 In contrast, certain EU Member States have national controls in this area which explicitly include such ancillary services in relation to certain goods.27 Amnesty International and Omega Recommendation: We recommend that the scope of these provisions should also explicitly include, “transportation, financial services, insurance or re-insurance, or general advertising or promotion” services for Annex II goods and for Annex III and Annex IIIa where the agent knows or has grounds for suspecting that a transfer of such goods is or may be intended to be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment in a country that does not belong to the customs territory of the EU. The Commission Proposal defines a “broker” as, “any natural or legal person or partnership resident or established in a Member State of the Union that carries out services defined under point (k) from the Union into the territory of a third country.”28 This definition appears to restrict application of control solely to brokering activities occurring from within the EU. In contrast, certain EU Member States have national controls in this area which explicitly incorporate elements of extra-territoriality.29 Amnesty International and Omega Recommendation: Amnesty International and Omega support the Commission proposals to introduce controls covering brokering activities undertaken from the EU by a legal or natural person or partnership resident or established within the EU. In addition, we recommend that the provisions should also specifically cover instances where: n the brokering activity is conducted outside the EU by an EU registered company, EU national or resident of an EU Member State; n the brokering activity is conducted outside the EU by a non-EU-based subsidiary of an EU company. Transit controls Under a combined reading of Articles 3 and 4 of the Regulation, any import or export of “goods listed in Annex II shall be prohibited, irrespective of the origin of such goods.”30 Commission officials have confirmed that this comprehensive prohibition would cover the transit of Annex II goods through the European Union.31 In contrast however, Article 5 of the Regulation, which details the export authorization requirement for Annex III goods, states,“[N]o authorization shall be required for goods which only pass through the customs territory of the Community, namely those which are not assigned a customs-approved treatment or use other than the external transit procedure within Article 91 of Regulation (EEC) No 2913/92, including storage of non-Community goods in a free zone of control type I or a free warehouse.”32 Consequently under the Regulation, export authorizations for items currently listed in Annex III are not required for those goods which transit through the EU without remaining there – potentially even if companies are suspected of sending Annex III equipment in transit through the EU to countries where there is a substantial risk they will be used for the death penalty, torture or other ill-treatment. This introduces a significant potential lacuna into the Regulation’s control regime. 25 26 27 28 29 30 31 32 European Commission Proposal (14 January 2014) op.cit. Article 1.2.(k). European Commission Proposal (14 January 2014) op.cit. Article 1.2.(k). See: UK Government, Department for Business, Innovation and Skills, March 2010 op.cit. European Commission Proposal (14 January 2014) op.cit. Article 1.2.(l). See: UK Government, Department for Business, Innovation and Skills, March 2010 op.cit. EC Regulation 1236/2005, Articles 3 & 4. Meeting between Commission officials and representatives of Amnesty International and the Omega Research Foundation, 23 April 2015. EC Regulation 1236/2005, Article 5. Amnesty International May 2015 Index: EUR 01/1632/2015