Background

Since June 2023, Dutch authorities have introduced specific export control measures targeting critical technologies such as advanced semiconductor manufacturing equipment. As they are measures that go beyond the legislation enacted by the EU, these measures are typically referred to as national export controls. The most recent Decree is a continuation and expansion of the export control measures on semiconductor manufacturing equipment introduced by the Netherlands on 30 June 2023 and 7 September 2024 and now includes quantum computing and additive computing goods. 

The measures were adopted based on EU and Dutch law: 

• Article 9(1) of Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (the “Dual-use Regulation”) allows Member States of the EU to “prohibit or impose an authorisation requirement on the export of dual-use items not listed in Annex I for reasons of public security, including the prevention of acts of terrorism, or for human rights considerations.”

• Article 4 of the Dutch Strategic Goods Decree (BWBR0024139) provides that “[b]y ministerial decree, [the Minister] may, for reasons of public security or human rights considerations, impose a ban on, or require a licence for, the export of dual-use goods not listed in Annex I of the Dual-use Regulation.”

In the explanation accompanying the Decree, the Minister for Foreign Trade and Development (the “Minister”) noted that the primary rationale behind this Decree, like the previous ones, is national and international security concerns.

The Minister deems that the uncontrolled export of these goods from the Netherlands to destinations outside the EU may pose risks to public safety, including international peace and stability. The Minister also cites the international nature of the goods flow and the Netherlands' position in the value chain as justifications for these additional export control measures.

Overview of the New Controls

The Decree imposes a new licensing requirement for additional dual-use items originating from the semiconductor, quantum and additive manufacturing industries. From 1 December 2024 onwards, companies must apply to the Minister for export licenses to export these listed goods and technologies to entities outside of the EU. 

To export newly-controlled items under the Decree, companies may apply for either (i) a global export license (valid for exports to one or more recipients in one or more third countries) or (ii) an individual export license (valid for exports to an individual recipient in a third country). 

• The application must include details about the goods, the recipient, the end-use, and the end-user. Additionally, authorities may request further documentation, such as the underlying contract, technical specifications, or an end-use declaration. 
• For a global export license, the applicant must also implement an Internal Compliance Programme (“ICP”) on the basis of Article 12, paragraph 4 of the Dual-use Regulation. The ICP is meant to outline companies' ongoing effective, appropriate and proportionate due diligence policies and procedures to facilitate compliance with the provisions and objectives of the Dual-use Regulation. 

The new licensing requirement is accompanied by the introduction of a new National General Export License NL900. This license, under certain conditions, allows for exports to certain non-EU destinations, including Australia, Canada, Iceland, Japan, New Zealand, Norway, Switzerland, Liechtenstein, the United Kingdom, and the United States, potentially easing the administrative burden for affected industries. 

Takeaways

• Companies that were already impacted by the 30 June 2023 and 7 September 2024 measures will likely consider the impact of these new controls to be minimal and expected. Affected companies should however continue to monitor these developments as adjustments in their planning may be necessary. 

• The Decree is another reminder of the continued attention by the Dutch authorities to critical technologies. Companies operating in these industries with export activities from the Netherlands should be particularly mindful of the dynamic regulatory environment, particularly as regards trade relations with the People’s Republic of China.

• Other EU member states have taken similar actions in a more or less coordinated fashion. To date, Spain, France, Germany, and Italy have introduced national export control measures on advanced key technologies, such as semiconductor technology and quantum computing. Companies with export activities in these jurisdictions should be mindful of Member State-specific legislation and potential differences between them.

• More generally, companies operating in the critical technologies space with a view to exporting from the EU should continue to monitor the regulatory developments and establish robust compliance action plans. At present there is no unified pan-European strategy with regards to regulating the export from the EU of these critical technologies. Although efforts to improve coordination are ongoing, the increase in national export control measures requires a heightened level of attention towards regulatory developments. 

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