Anyone exporting goods subject to authorisation needs the trust of the Federal Office for Economic Affairs and Export Control (BAFA). BAFA ties this trust to one person: the export control officer (Ausfuhrverantwortlicher). Without one, export licences are as a rule not granted. For the manager concerned, the role is more than a formality.
Who must be the export control officer
The export control officer is a member of the body authorised to represent the company – that is, the managing directors (Geschäftsführung) or the management board (Vorstand). An authorised signatory (Prokurist) or the head of the export department is not sufficient. The company nominates the person to BAFA, and he or she declares that they assume responsibility for compliance with export control rules. If the person changes, the successor must be nominated anew.
What the role means
The export control officer does not have to check every export personally. He or she must, however, ensure that the company is organised in such a way that, as far as humanly foreseeable, infringements do not occur. This includes:
- a clear export control organisation with defined responsibilities and deputies,
- sufficiently qualified staff and the resources they need for their work,
- written work instructions for classification of goods, sanctions list screening and licences,
- regular training,
- checks on whether the requirements are complied with, and consequences if they are not.
In short: the export control officer is responsible for the internal compliance programme (ICP). BAFA has described in a guidance note what it expects from such a programme; at European level there is a Commission Recommendation on this with seven core elements.
What can be delegated
The day-to-day work can and should be delegated to specialists – to an export control manager (Exportkontrollbeauftragter) or a dedicated department. Responsibility itself, however, cannot be handed over. The export control officer retains the duties to select the right people, to instruct them and to supervise them. Anyone who delegates and then stops looking has not fulfilled their duty.
How far liability extends
If an infringement occurs, the authorities also examine whether the export control officer has fulfilled his or her supervisory duties. The consequences can arise on several levels:
- Reliability: BAFA can classify the company as unreliable. Licences are then refused – for an export-oriented company often the most serious consequence.
- Administrative fine: Breach of supervisory duty can lead to fines against the individual and the company.
- Criminal law: Anyone who knows of infringements or knowingly accepts them as a possibility can themselves be a perpetrator of, or accessory to, a criminal offence under the Foreign Trade and Payments Act (Außenwirtschaftsgesetz, AWG).
Conversely, a compliance programme that is actually followed protects. If the company uncovers a negligent infringement itself and discloses it voluntarily, this can influence whether and in what amount a fine is imposed. In practice it rarely ends entirely without a fine.
Five questions every export control officer should ask
- Do I know which of our goods are listed and which countries they go to?
- Are there written instructions, and do the employees know them?
- When was it last checked whether the instructions are being followed?
- Do I learn about problems before the authority does?
- Could I explain to an investigator today how we prevent infringements?
If you cannot answer any one of these questions with a confident yes, an independent look at your compliance programme is well invested. That is exactly what our compliance audits provide.