The Microetch case, and a strange list of 1958 for arms and war material
Once upon a time, in the backdrop of a world where the Soviet Union still loomed large, a story unfolded that would challenge the boundaries of international trade and security.
The EU Common Military List is now known to be the reference for export control exercised on defence-related products. A very first list of such strategic goods was already decided in 1958 and still appears in the EU legislation. This list was also mentioned stake in an ECJ judgment of 1991, even if is seems to have never been published or modified.
The judgment, as well, is interesting because if affirms the power of the EU Member States to restrict the free movement of goods for reasons of public security.
Mr. Aimé Richardt and His Vision - The Man Behind the Machine
Meet Mr. Aimé Richardt, the visionary chairman and managing director of Les Accessoires Scientifiques (LAS), nestled in the heart of France. LAS was about to embark on a daring venture, one that involved a peculiar contraption – a unit for the production of bubble memory circuits, complete with a fascinating ten-inch Veeco Microetch.
A Daring Plan - From France to Moscow
The journey began when this sophisticated piece of technology was imported into France from the United States, entering the free circulation zone within the EU. A grand plan was in place to ship it to Moscow, to be used by a Soviet central purchasing agency, Technoprominport. However, fate had other ideas.
A Twist of Fate - Detour to Luxembourg
A twist of fate occurred when a flight cancellation by Aeroflot prevented the goods from being loaded at Roissy for their scheduled flight to Moscow. Quick-thinking Air France intervened, taking the cargo by lorry to the airport of the Grand Duchy of Luxembourg. There, at the customs checkpoint, destiny took an unexpected turn as the manufacturing machine was seized.
Now, let's unravel the intrigue of this ten-inch microetch. It wasn't just any ordinary device; it was an ion milling marvel, capable of meticulously etching minuscule amounts of material from microscopic wafers with unparalleled precision. These bubble memory devices were the lifeblood of the microelectronics industry, storing information in magnetic bubbles. This particular unit comprised 27 intricate machines, including the enigmatic ten-inch microetch, manufactured by Veeco Instruments Inc., a United States company.
Legal Intrigue Unfolds - The Case Elevates to the ECJ
The saga took a legal turn as criminal proceedings were initiated by the Luxembourg authorities. They alleged that Mr. Aimé Richardt and four others were attempting to unlawfully transit a material of strategic importance. The plot thickened as they claimed a license was necessary for the transit of goods from the United States and France to various destinations, including the Soviet Union.
LAS had tried to play by the rules. In June 1984, they applied for an export license in France to send the entire unit to the Soviet Union. Surprisingly, out of the 27 items for which authorization was sought, 24, including the microetch, were deemed license-free and ready to leave French territory. An export license for the remaining three machines was granted.
LAS sealed the deal with Air France for the transport to Moscow, but fate had other plans. The Aeroflot flight from Roissy to Moscow was canceled, and without consulting LAS or Mr. Richardt, Air France rerouted the cargo to Luxembourg. There, on 21 May 1985, the microetch met its destiny in the form of a seizure by Luxembourg authorities.
Initially, the lower courts favored Mr. Richardt, acquitting him due to his alleged ignorance of the goods' diversion to Luxembourg. However, the highest court had a different perspective and decided to elevate the case to the European Court of Justice.
The pivotal question hinged on whether the T1 document presented in the case was sufficient or if Luxembourg could insist on an additional special authorization based on external security grounds, particularly for goods classified as strategic material. LAS had a French export license, which added to the complexity.
As we journey through this intricate tale, it's essential to remember that the microetch had already entered free circulation within the EU upon its importation into France. In theory, it should have been sent to Luxembourg with a T2 document meant for internal Community transit. However, due to a procedural error, a T1 document was used.
Regulations and Derogations - Article 36 and Public Security
At that time, EC Regulation No. 222/77 aimed to streamline and simplify the movement of goods within the European Community, covering all types of items, regardless of their strategic nature.
Here's where it gets legally intriguing. European treaties allowed national legislation to deviate from the principle of free movement of goods if it served objectives laid out in Article 36 of the Treaty (now Article 36 TFEU, which provides for derogations to the internal market freedoms of Articles 34 and 35 TFEU that are justified on certain specific grounds) provided it did not overly restrict intra-Community trade. The ECJ (European Court of Justice) determined that public security, as mentioned in Article 36, encompassed both internal and external security of a Member State. Hence, the importation, exportation, and transit of goods with strategic applications could affect public security, warranting Article 36 protection.
In essence, Member States had the right to make transit conditional on special authorization, but only if they adhered to the principle of proportionality.
The Elusive Military List - An Unpublished Enigma
In this case, Article 223(1)(b) of the EEC Treaty (now Article 346 TFEU) allowed Member States to protect their essential security interests linked to arms, munitions, and war material. However, no one argued that the microetch fell into these categories. Furthermore, a list of such products was drawn up on 15 April 1958, but remained unpublished and unaltered, with no mention of the microetch.
As we reflect on this captivating chapter from the past, we see how times have changed, and yet, the complexities of international trade and security continue to shape our world.
Source: Judgment of the European Court of Justice of 4 October 1991, Criminal proceedings against Aimé Richardt and Les Accessoires Scientifiques SNC, Case C-367/89, European Court reports 1991 Page I-04621