End-user certicates in contracts – A solution for dual-use trade?

Today I had a conversation with a colleague about the topic of so-called end-use declarations. These are particularly relevant for trade transactions in the context of trade embargoes. National import and export authorities sometimes demand such an end-use declaration, with which the recipient of the goods undertakes not to pass on the goods. These declarations are an important tool for export control, especially in the case of so-called dual-use goods such as tools for military use like night-vision devices.

In Germany, the document is specifically requested by BAFA (Federal Office of Export). If the export is of goods requiring a licence, the document is required. Specifically, it is a written declaration by the private recipient or end-user on the end-use and end-use of the goods. The end-use declaration must contain the letterhead of the person receiving the goods and correspond to the specified sample text of the Federal Office of Economics and Export Control (BAFA).

Specifically, the question arose whether such a declaration could not also be fixed privately between the parties – as a sort of precautionary safeguard.

In fact, we have not found any information on this in the legal literature. On the other hand, by way of private autonomy, any kind of contractual regulation is possible in principle, as long as it does not violate general principles such as the law on general terms and conditions or the requirement of good faith.

In this context, however, it is essential that contractual arrangements should not be merely ornamental. Ideally, a contractual end-use statement should be clearly defined as a contractual obligation and a breach of this should also be linked to concrete consequences, such as a specific contractual penalty.

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