Export control and sanctions clauses for your international contracts (No Russia, licences and re-export)

Legal basis and things to bear in mind

• The No Russia clause (art. 12 octies, Article 12g in the English text, of Council Regulation (EU) No 833/2014) has been mandatory since 20 March 2024 when selling, supplying, transferring or exporting to a non-EU country goods or technology listed in Annexes XI, XX, XXXV or XL to that Regulation, or firearms and ammunition listed in Annex I to Regulation (EU) No 258/2012: the contract must prohibit re-export to Russia and re-export for use in Russia. It is not required for the partner countries listed in Annex VIII (including the United States, Japan, the United Kingdom, Switzerland and Norway), in contracts involving only operators established in the EU, or in public contracts with a public authority of a third country or with an international organisation; the latter must be reported to the authority within 2 weeks of being concluded.
• The contract must provide adequate remedies in the event of a breach, and if the counterparty breaches it, the exporter must inform the competent authority of its Member State as soon as it becomes aware of it. According to the European Commission, it is enough for the clause to appear in general terms and conditions validly incorporated into the contract, and its model clause also requires the buyer to use its best efforts to ensure that no one further down the commercial chain, including resellers, frustrates the prohibition.
• Being exempt from the clause does not allow the product to end up in Russia: selling dual-use goods to Russia or for use in Russia is prohibited, directly or indirectly (art. 2 of Regulation (EU) No 833/2014), and EU companies must use their best efforts to ensure that the entities they own or control outside the EU do not undermine the sanctions (art. 8 bis, Article 8a in the English text). The tariff code alone is not enough to tell whether a product is affected: dual-use items are defined by their technical parameters.
• Dual use: the end-use declaration (declaración de último destino) signed by the final consignee includes an undertaking not to re-export without prior written authorisation and to use the product for the declared end use (art. 31 of RD 679/2014). If you sell items on the dual-use list to a customer in another EU country, the contract, the order confirmation, the invoice and the dispatch note must state that they are subject to controls if exported from the EU (art. 11.9 of Regulation (EU) 2021/821). Exporting dual-use items without authorisation is the criminal offence of smuggling from 50.000 euros (LO 12/1995); below that it is an administrative offence with a fine of 200 to 350 % of the value, with a minimum of 1.000 euros.
• China requires an export licence, which the Chinese exporter applies for to MOFCOM, for samarium, gadolinium, terbium, dysprosium, lutetium, scandium and yttrium and for samarium-cobalt magnets and neodymium magnets containing terbium or dysprosium (Announcement 18/2025, in force), and also for gallium, germanium, certain types of graphite and antimony. The announcements of 9 October 2025 that extended the controls are suspended until 10 November 2026 (Announcement 70/2025). MOFCOM decides within 45 working days of accepting the application, and the period is suspended while it carries out its checks.
• The end-user certificate is issued and signed by the end user itself, which undertakes not to change the end use or transfer the product to third parties without MOFCOM's permission (art. 24 of China's Regulations on the Export Control of Dual-Use Items). MOFCOM may also require an official certificate from the end user's country, and if the importer or the end user does not cooperate in time with the end-use check, it may place them on its watch list. The application to MOFCOM is always filed by the Chinese supplier.
• Force majeure: under Spanish law no one is liable for events that could not be foreseen or that, if foreseen, were unavoidable, unless the law or the contract says otherwise (art. 1105 of the Código Civil). That is why the contract should say what happens if the licence does not arrive or is delayed: who bears the risk, whether delivery deadlines are suspended and when the contract can be terminated.