You sell chips or GPUs and are investigated for diversion to China or Russia

The case, in five lines

What is brought

Defence in the investigation and in the smuggling penalty proceedings: a reply to the information request with a classification report (TPP, 3A501.a.16, 4A507, annex XL) signed by an expert engineer and with your due diligence documented; submissions and evidence within fifteen days from the day after notice of the decision opening proceedings (art. 31 of Royal Decree 1649/1998); an appeal against the penalty. In parallel, a prior licence for pending shipments, notice to the authority of what you know (art. 4(2) of Regulation 2021/821 and art. 12g(4) of Regulation 833/2014) and a claim against the customer that broke its undertakings.

Before which court

The Aduana, within the AEAT, investigates and imposes the penalty; the penalty is challenged through the economic-administrative route (the regional or central tribunal económico-administrativo, the tax and customs appeals board) and then before the Tribunal Superior de Justicia (High Court of Justice of the region) or the Audiencia Nacional (Spain's National High Court). Licences are granted by the Secretaría de Estado de Comercio on a binding report of the JIMDDU (Spain's interministerial board on trade in defence and dual-use items), and a refusal is challenged before the Audiencia Nacional. If the value reaches the criminal thresholds, the matter moves to the criminal courts, which this firm does not handle. Against the customer that diverted the goods, the forum set by the contract: arbitration or the courts.

Deadline

Fifteen days to make submissions from the day after notice of the decision opening proceedings (art. 31 of Royal Decree 1649/1998); six months to decide, extendable once by another six, and the proceedings lapse thirty days after that period expires (art. 35(5)). The infringement becomes time-barred four years after each shipment (art. 15(1) of Organic Law 12/1995). The information request is answered within the period it sets: ignoring it is a further infringement or aggravates the penalty. Against the penalty, an economic-administrative claim within one month; against the refusal of a licence, an optional request for reconsideration (recurso de reposición) within one month or, directly, judicial review before the Audiencia Nacional within two. A licence application is decided within six months and silence means refusal (art. 7(1) of Law 53/2007).

Who can bring it

The exporter is liable: whoever holds the contract with the consignee outside the Union and has the power to decide the shipment (art. 2(3) of Regulation 2021/821), and also whoever sends controlled software or technology by electronic means. If you sold to a Spanish reseller and it was the reseller that took the goods out, the reseller is the exporter; but the ban on selling to Russia reaches indirect sales, and the administrative infringement is committed with any degree of negligence (art. 11(1) of Organic Law 12/1995). The company is liable, and only an operator entered in the REOCE (Spain's register of foreign-trade operators in defence and dual-use items), which requires residence in Spain, may apply for the export licence (art. 13 of Royal Decree 679/2014, with exceptions for personal luggage and for certain transit, brokering and technical assistance by non-residents).

Financial risk

A fine of 200 to 350 % of the value exported, with a minimum of €1,000, confiscation and a possible temporary suspension of export activity in those products; a crime from €50,000 for dual-use items (€150,000 if treated as a trade policy measure), adding together the shipments of a single plan. Outside Spain, the United States may put your company on its Entity List and your suppliers may stop selling to you. Nobody can promise you that the case will be closed; what can be done is to defend the proceedings with the correct classification and proof of your diligence.

Classify first: the TPP decides, not the tariff heading

Since 15 November 2025, the version of annex I to Regulation (EU) 2021/821 adopted by Delegated Regulation (EU) 2025/2003 has applied. Its sub-item 3A501.a.16 controls integrated circuits with digital processing units whose ‘total processing performance’ (TPP) is 6,000 or more, that is, high-end GPUs and AI accelerators. Item 4A507 covers computers, cards and electronic assemblies containing those chips, and 4D001.a the software designed to develop or produce them. A server with one of those GPUs needs a licence to leave the Union, even if the invoice only shows its tariff heading.

The TPP is calculated as 2 × MacTOPS × bit length, summed across all the chip's units and using the theoretical maximum the manufacturer declares for dense matrices: 6,000 is reached with 750 TOPS at 8 bits or 300 TFLOPS at 16 bits. What nobody tells you is that the codes almost everyone searches for, 3A090 and 4A090, belong to the United States list and do not appear in the European one: anyone looking for them in annex I wrongly concludes that the product is not controlled. Spain adds in its national list (annex III.5 of Royal Decree 679/2014, as amended by Order ECM/536/2026, in force since 5 June 2026) high-bandwidth memory (HBM) above 6 GB/s per mm² (3A902) and the technology for developing or producing assemblies with 3A501.a.16 chips (4E902).

The list changes: on 14 September 2026 the Commission adopted a new Delegated Regulation that amends these items again, but it has not been published, so the current 3A501.a.16 governs today. Classification is done product by product, against the list in force on the date of each shipment, and it is the first line of defence: if the card does not reach the threshold, proceedings for exporting a dual-use item without a licence lose their basis, even though the Russia sanctions regime goes beyond dual-use items. Our expert engineers in Spain and in China calculate the TPP from the manufacturer's data sheet and check the model and serial numbers of what was actually shipped, and the report is signed by an expert holding an officially recognised qualification, so that it can be filed in the proceedings and, if the matter reaches court, as an expert opinion (art. 340 of the Spanish Civil Procedure Act, LEC). That report does not promise an outcome: it states what the goods are.

Who the exporter is and what the licence requires, including for China and Hong Kong

The exporter is whoever, when the declaration is accepted, holds the contract with the consignee outside the Union and has the power to decide the shipment (art. 2(3) of Regulation 2021/821). Whoever sends controlled software or technology, such as firmware or a design, by electronic means, or makes it available to someone outside, also exports (art. 2(2)(d)). Selling from Spain GPUs located in one third country for transfer to another is brokering, and in Spain it always needs authorisation for annex I items (art. 6 of the Regulation and art. 2 of Royal Decree 679/2014). Technical assistance to a data centre outside the Union needs authorisation if the authority informs you of a sensitive use, and if you are aware of one you must report it (art. 8).

China, Hong Kong and Dubai are outside the Union: exporting a 3A501.a.16 GPU or a 4A507 server there requires prior authorisation (art. 3(1) of the Regulation and art. 4(1) of Law 53/2007), and there is no retrospective licence to regularise what has already been shipped. It is granted by the Secretaría de Estado de Comercio, on a mandatory and binding report of the JIMDDU (art. 18 of Royal Decree 679/2014); only a resident operator entered in the REOCE may apply (art. 13); an individual licence requires an end-use declaration from the consignee, unless exempted (art. 12(4) of the Regulation), and is decided within six months, with silence meaning refusal (art. 7(1) of Law 53/2007). In deciding, the authority takes into account all relevant considerations, including the intended end use and the risk of diversion (art. 15 of the Regulation), which is a non-exhaustive list. If it is refused, see the case "Dual-use export licence or REOCE registration refused in Spain".

If the product is not in annex I, it is not entirely free. It needs a licence if the authority informs you that it may be intended for weapons of mass destruction, for a military end use in a country under an arms embargo or for parts of military items exported illegally (art. 4(1)); and if you know it is going to one of those uses, you must report it and the authority decides (art. 4(2)). The same applies to cyber-surveillance items intended for internal repression (art. 5(2)). That report is made before exporting: keeping quiet when you know exposes you to having exported without a licence, because there is no way to apply for one afterwards.

Russia: dual-use items banned, high-priority chips under watch

Article 2 of Regulation (EU) 833/2014 prohibits selling, supplying, transferring or exporting dual-use items to Russia, directly or indirectly, whether or not they originate in the Union, and providing technical assistance or brokering services related to them; since 15 November 2025 that includes 3A501.a.16 GPUs. In addition, annex XL lists as common high-priority items the integrated circuits of subheadings 8542 31, 32, 33 and 39 and the units of 8471 50 and 8471 80, even when they are not dual-use. The Regulation binds companies incorporated in a Member State even when they act outside the Union (art. 13).

Anyone selling those annex XL items to a third country that is not a partner country listed in annex VIII must, since 20 March 2024, contractually prohibit their re-export to Russia or for use in Russia, with adequate remedies, and inform the authority as soon as it learns that the counterparty has breached that obligation (art. 12g). Since 26 December 2024 anyone licensing or transferring intellectual property or trade secrets relating to them, such as firmware, must contractually prohibit the counterparty from using them for items destined for Russia or for use in Russia, and require it to impose that prohibition on its sub-licensees (art. 12ga). And anyone selling them outside the Union must assess and document the risk of diversion to Russia, keep that assessment up to date and apply controls proportionate to its size, unless it sells only within the Union or to annex VIII partners (art. 12gb).

What nobody tells you is that this documented assessment is both an obligation and your best evidence. If a serial number turns up in Russia, the question in the proceedings is what you knew and what you did: who the customer was, why a third party was paying, why delivery was to a warehouse in another country, what clause was signed. If you have subsidiaries outside the Union, you must ensure that they too assess and control that risk when they sell annex XL items (art. 12gb(3)), in addition to the general duty to do everything possible to stop them undermining the sanctions (art. 8a). An investigation over a diversion that has already happened is covered in detail in the case "EU Russia sanctions export investigation: your products ended up in Russia".

The United States and China: the two other lists that may reach you

Complying with the European rules does not protect you from the US ones. The EAR (Export Administration Regulations), the United States export control rules, reach US-origin items wherever they are, foreign-made items incorporating controlled US content above the de minimis level (10 % or 25 %, depending on the destination, with no de minimis for certain computers containing controlled US semiconductors and certain chip-manufacturing equipment) and certain foreign direct products of US technology or software, with a specific rule for advanced computing. Since 17 November 2023, BIS, the US Bureau of Industry and Security, has required a licence for 3A090.a and 4A090.a items subject to the EAR destined for entities headquartered, or whose ultimate parent is headquartered, in China or Macau, even if those entities are located elsewhere, including in Europe.

In practice, re-exporting from Spain a server with US GPUs to a Dubai company whose ultimate parent is headquartered in China may require a BIS licence. The so-called 50 % affiliates rule is suspended from 10 November 2025 to 9 November 2026 and applies again afterwards unless a new decision is taken. And BIS may put a Spanish company on its Entity List if, on specific facts, it considers that the company acts or may act against US national security or foreign policy: it is not a Spanish fine, but your suppliers will stop selling to you. The EAR provide for voluntary self-disclosure to BIS (§ 764.5); that decision is taken with the classification and the chronology in hand.

China applies its own controls too. If you buy chassis, boards or servers there, Chinese customs may question an export they suspect to be a dual-use item without a licence: the exporter has seven working days from receiving the notice to provide the contract, invoice, an explanation and technical data translated into Chinese, and the goods do not leave while the matter is decided (Announcement 52/2026 of MOFCOM, China's Ministry of Commerce, and the General Administration of Customs, in force since 19 October 2026, which replaces Customs Announcement 123/2025). Announcement 61/2025, which requires a MOFCOM licence to export products made outside China containing Chinese rare earths worth 0.1 % or more of their value and examines case by case those intended for logic chips of 14 nm or less, memory of 256 layers or more or AI with possible military use, is suspended until 10 November 2026; on 28 September 2026 MOFCOM announced that China and the United States are extending to 10 January 2027 the agreement to which the suspension was linked, but as at 24 October 2026 no announcement has carried the suspension to that date. See the case "You use Chinese magnets or rare earths and are told to comply with China".

Smuggling: when it is an infringement, when a crime and what it costs

Exporting dual-use items without authorisation, or with one obtained using false data on their nature or destination, is the crime of smuggling if the value is €50,000 or more (art. 2(2)(c) of Organic Law 12/1995); if it is treated as a breach of a trade policy measure, such as an annex XL chip that is not dual-use sent to Russia, the threshold is €150,000 (art. 2(1)(d)). Shipments forming part of a single plan are added together and gross negligence is also punishable (art. 2(4) and (5)). Spain has no specific offence of breaching EU sanctions: the bill that would have created it lapsed on 6 October 2026. The firm handles the administrative defence; it does not handle the criminal one.

Below those amounts it is an administrative infringement, committed with intent or with any degree of negligence (art. 11(1)). For dual-use items it is minor below €6,000, serious from €6,000 to €18,000 and very serious above that, with fines of 200 to 225 %, 225 to 275 % and 275 to 350 % of the value, a minimum of €1,000 and a possible temporary suspension of export activity in those products (arts. 11(2) and 12(2)). A €15,000 shipment can cost a fine of between €33,750 and €41,250, and a €40,000 one between €110,000 and €140,000, in addition to any confiscation ordered in the decision (art. 35(2)(f) of Royal Decree 1649/1998). For items that are not dual-use the general scale applies: 100 to 350 %, with a minimum of €500 and bands at €37,500 and €112,500 (arts. 11(2) and 12(1)).

The procedure has its deadlines, and they are counted. Fifteen days to make submissions and propose evidence from the day after notice of the decision opening proceedings (art. 31 of Royal Decree 1649/1998); if you make none and the decision already contains all the elements, it may stand as the proposed resolution (art. 25(2)). The Aduana has six months to decide, extendable only once by another six, and if thirty days pass after that period without a decision the proceedings lapse, although they may be reopened as long as the infringement is not time-barred (art. 35(5)). The infringement is time-barred four years after each shipment (art. 15(1) of Organic Law 12/1995), and appealing the penalty in time suspends its enforcement without any guarantee (art. 35(6)). Failing to comply with a duly notified request is a minor infringement punished with €1,000, unless it is taken into account to aggravate the smuggling penalty (arts. 11(4) and 12(4)). The full defence of the proceedings is covered in the case "Smuggling penalty proceedings opened against you: fine, confiscation and defence".

Building the defence: classification, diligence and the customer who misled you

The defence is built on three questions. What the goods were: the classification report with the TPP, the model and the serial numbers, against the list in force on the date of each shipment. Who was exporting: if you sold in Spain to a reseller and it was the reseller that took the goods out, the reseller is the exporter (art. 2(3) of Regulation 2021/821). And what you knew: the infringement requires at least negligence, so the end-use declaration, the no-re-export clause, the risk assessment and the red flags that were or were not present all carry weight, such as payment from a third party's account, delivery to a warehouse in another country or a buyer with no known business that asks for neither warranty nor support.

While the investigation lasts, some things cannot wait. Stop pending shipments to the same customer until the licence position is clear; if you know that an unlisted item is going to a sensitive use, report it before exporting (art. 4(2)); and if the customer breached the no-re-export-to-Russia clause, inform the authority as soon as you know (art. 12g(4)). Answer the request with data and documents, not explanations: whatever you say there will reappear in the decision opening proceedings. The firm works with partners with offices in China, who can verify on the ground who a customer or end user there is and where it is located, and with expert engineers in Spain and in China, who inspect at origin, before shipment, what is inside the server you buy there, and again on arrival, so that the declared model and TPP match what comes in and goes out.

Against the customer that diverted the goods, the claim is contractual: the no-re-export clause with its remedies, the agreed indemnity and termination. To sue in Spain, the negotiation required by Organic Law 1/2025 (arts. 3(1) and 5) must be attempted first, including against a foreign company; it is not required for arbitration. If the customer is in mainland China, a Spanish judgment is recognised there under the 1992 Spain-China Treaty on judicial assistance, before the Intermediate People's Court and without review of the merits, where the Spanish court had jurisdiction for those purposes, for example through a written choice-of-court clause; an arbitral award, under the New York Convention. How to choose the forum is covered in the case "You want to sue your Chinese supplier: arbitration or the courts?". The clause that would have prevented this is signed before the first sale: a declared end use, a ban on re-export to Russia and on transfer without consent, delivery only to the end user's premises, payment from the customer's own account, a right to verify serial numbers, immediate suspension and termination, and an indemnity for any penalty.

How we run the case, step by step

1. 1

   Stop shipments and gather the file

   Pending shipments to the customer under investigation are stopped and, for each transaction, we gather the invoice, the export declaration, the contract or order, the emails, the payments, the transport documents and the data sheet for each product reference, with the date of each shipment.

2. 2

   Classify with an expert engineer

   Our expert engineers in Spain and in China calculate the TPP using the manufacturer's theoretical maximum, check the model and serial numbers, on the goods themselves at origin or on arrival if needed, and classify each product against 3A501.a.16, 4A507, the Spanish national list, annex XL and the EAR. The report is signed by an expert holding an officially recognised qualification.

3. 3

   Answer the information request

   We prepare the reply to the Aduana or to the Secretaría de Estado de Comercio and file it as your company's representatives, with documents and no guesswork, within the period it sets. If you knew of a sensitive use or of a breach of the no-re-export-to-Russia clause, the authority is informed.

4. 4

   Make submissions within fifteen days

   If proceedings are opened, submissions and evidence within fifteen days from the day after notice: classification, who the exporter was, absence of negligence, calculation of the value and of the fine band, whether or not the shipments formed a single plan, and monitoring of lapse and time-bar.

5. 5

   Appeal and put future sales in order

   Against the penalty, an economic-administrative claim within one month, which suspends its enforcement without a guarantee, and then judicial review. To keep selling outside the Union: entry in the REOCE and a prior licence, the clauses under arts. 12g and 12ga of Regulation 833/2014 and the documented risk assessment under art. 12gb.

6. 6

   Claim against the customer that diverted the goods

   A request to negotiate sent to the customer in breach, which serves as the prior attempt required by Organic Law 1/2025, and, failing agreement, arbitration or a claim as the contract provides. If action is needed in China, a lawyer qualified there acts before its courts, and we coordinate it from Spain with our partners in China.

The law that applies

• Arts. 2, 3, 4 y 12 del Reglamento (UE) 2021/821 y su anexo I (3A501.a.16 y 4A507). It defines the exporter, including whoever transmits software or technology by electronic means; it requires authorisation to export annex I items, among them GPUs with a TPP of 6,000 or more and the equipment containing them; it makes unlisted items subject to licence if the authority reports a sensitive use and requires it to be reported if known; the individual licence is granted by the exporter's State and requires an end-use declaration unless exempted. 02021R0821-20260921
• Arts. 6, 8 y 15 del Reglamento (UE) 2021/821. It governs authorisation of brokering and technical assistance relating to dual-use items and requires the authority to take into account all relevant considerations when deciding on a licence, including sanctions, foreign and security policy, end use and the risk of diversion. 02021R0821-20260921
• Arts. 2, 8 bis, 12 octies, 12 octies bis, 12 octies ter y 13 del Reglamento (UE) 833/2014. It prohibits selling or exporting dual-use items to Russia, directly or indirectly; it requires a contractual ban on re-export to Russia of annex XL items when selling them to non-partner third countries, and, when licensing their intellectual property, a ban on its use for items destined for Russia; it requires the diversion risk to be assessed and documented, also in subsidiaries outside the Union; and it applies to Union companies inside and outside the Union. 02014R0833-20260724
• Arts. 4 y 7 de la Ley 53/2007. Transfers of dual-use items require prior administrative authorisation, with control documents and no-re-export clauses, and with the transit countries and means of transport; the application is decided within six months and, without a decision, is deemed refused. BOE-A-2007-22437
• Arts. 13, 18 y 31 del RD 679/2014. Only resident operators entered in the REOCE may apply for a licence; the JIMDDU issues a mandatory and binding report; and the end-user's declaration of final destination contains the undertaking not to re-export without authorisation and to apply the item to the declared use. BOE-A-2014-8926
• Arts. 2, 11, 12 y 15 de la LO 12/1995. Exporting dual-use items without authorisation is a crime from €50,000, and exporting in breach of a trade policy measure from €150,000, adding together the shipments of a single plan; below that it is an administrative infringement, committed with intent or negligence, with fines of 200 to 350 % of the value for dual-use items and a minimum of €1,000; it is time-barred after four years. BOE-A-1995-26836
• Arts. 25, 31 y 35 del RD 1649/1998. Fifteen days to make submissions and propose evidence from notice of the decision opening proceedings; six months to decide, extendable once by another six, with lapse thirty days after expiry; the decision sets the penalty and any confiscation, and an appeal lodged in time suspends enforcement without a guarantee. BOE-A-1998-21017
• Arts. 3.1 y 5 de la LO 1/2025. Before bringing a civil claim, an appropriate dispute resolution method must first be attempted, including in cross-border disputes; direct negotiation between lawyers qualifies, and it is not required for pre-action interim measures or preliminary inquiries. BOE-A-2025-76

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

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