EXPLANATORY NOTE 2: CONTROLS ON TRANSPORT
OR CATEGORY B GOODS
ATTACHMENT 2, ARTICLE 21(4) TO (6)
The Further Response, stated "In order
to keep the burden proportionate to the risk, we need to do further
work with stakeholders to ensure that we keep outside the scope
of the control those activities that are of no concern. In broad
terms, the intention would be to catch those who have direct involvement
in transferring or arranging the transfer of Category B goods
between two countries overseas where they know or have reason
to believe that they are Category B goods".
Article 21(4) to (6) aims to control the activities
of the UK person who is most closely connected to the overseas
entity which wants the goods moved, other than where that UK person
is acting as an employee. Thus:
— where a UK person or business engages
directly with the overseas person who requires Category B goods
to be moved, their actions are controlled;
— UK transporters who supply their transport
services to a non-UK concern prior to their onward supply to the
customer are also controlled; but
— UK sub-contractors to a UK concern will
not be controlled (there is no need to do so, since the person
who they supply will be controlled in any event); and
— we will not control the activities of
UK employees going about routine duties, for example driving trucks,
loading goods, or doing paperwork which would ultimately contribute
to the provision of transport by their employer, if they do not
themselves have involvement with the overseas entity seeking to
move the goods outside the course of their employment.
The draft is structured as follows:
— Article 21(4) states that transportation
services are controlled only in the circumstances described at
Article 21(5) or 21(6);
— Article 21(5) then controls the activities
of UK freight forwarders and other main providers who actually
arrange the movement of the goods in question (but not the employees
of such companies in the normal course of their employment);
— Article 21(6) explains that where transporters
provide their services to another UK person or person operating
in the UK (ie "another person to whom this article applies")
who in turn has agreed to transport the goods, their activities
are not controlled. However, where they supply their services
to a non-UK person operating outside the UK, this is controlled,
other than when they do so in the normal course of their employment
(in this way, the services of self-employed pilots, drivers etc
contracted to an overseas entity which wants goods to be moved
are controlled, but not the individual actions of UK individuals
employed by overseas entities).
ATTACHMENT 2: EXCERPT OF 1ST DRAFT OF LEGISLATION
ON TRADE CONTROLS; CONTROLS ON THE TRANSPORT OF CATEGORY B GOODS
PART 3
TRADE CONTROLS
Category B goods
21—(1) This article applies to—
(2) Subject to paragraphs (3), (4) and (7)
and to articles [241 and [251*, no person to whom this article
applies shall directly or indirectly—
(a)supply or deliver;
(b)agree to supply or deliver; or
(c)do any act calculated to promote the supply or
delivery of any category B goods, where that person knows or has
reason to believe that such action or actions will, or may, result
in the removal of those goods from one third country to another
third country.
(3) Nothing in this article shall be taken
to prohibit the provision of—
(a)financing or financial services;
(b)insurance or reinsurance services; or
(c)general advertising or promotion services by a
person whose only involvement in the activities described in paragraph
(2) is to provide or agree to provide such services.
(4) A person ("the transporter")
whose only involvement in the activities described in paragraph
(2) is to provide or agree to provide transportation services
in relation to category B goods ("the relevant goods")
only contravenes the prohibition in this article if paragraph
(5) or (6) applies.
(5) This paragraph applies if the transporter
arranges, otherwise than in the course of employment, the removal
of the relevant goods from one third country to another third
country.
(6) This paragraph applies if the transporter
otherwise than—
(a)in the course of providing services to another
person—
(i)to whom this article applies; and
(ii)who has agreed to provide transportation services
in relation to the relevant goods; or
(b)in the course of employment removes or agrees
to remove the relevant goods from one third country to another
third country.
(7) Nothing in this article shall be taken
to prohibit any contract promotion activity that is carried out—
(a)otherwise than for payment; or
(b)in the course of employment.
*Article 25 is not reproduced here, but deals
with licensing
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