On June 30, 2023, the Government of The Netherlands published a Ministerial Decree containing the much anticipated new rules restricting the exportation of certain Advanced Semiconductor Manufacturing Equipment in the country's Official Journal ("the Decree").1 The new rules will apply as of 1 September 2023. [For additional background, please see our previous alert, Japan and the Netherlands Agree to New Restrictions on Exports of Chip-Making Equipment to China]
The rules in the Decree introduce a prior authorization requirement for the exportation of certain Advanced Semiconductor Manufacturing Equipment from the Netherlands to non-EU countries. Authorizations for exportations can be granted by the Dutch export control authority, i.e. the Director-General of the Customs Administration of the Netherlands ("Dutch Customs")2 and can be made subject to conditions,3 failure to comply with which may lead to the revocation of the license.4 Requests for authorization must contain the name and address of the exporter, the destination and final destination of the Advanced Semiconductor Manufacturing Equipment, as well as the name and address of the intended recipient. Dutch Customs can request the applicant provide the contract underlying the intended exportation. he items subject to the prior authorization requirement are Advanced Semiconductor Manufacturing Equipment as defined in an Annex to the Decree and which is not covered by Annex I to the EU Dual-Use Regulation5:
- EUV pellicles (3B001.l)
- Production equipment for EUV pellicles (3B001.m)
- Lithography equipment being align and expose step and repeat (direct step on wafer) or step and scan (scanner) equipment for wafer processing using photo-optical or X-ray methods, meeting the provided technical specifications (3B001.f.4)
- Equipment for atomic layer deposition (ALD) of work function metals, meeting the provided technical specifications (3B001.d.12)
- Equipment designed for epitaxial growth of silicon (Si), carbon doped silicon, silicon-germanium (SiGe) or carbon doped SiGe, meeting the provided technical specifications (3B001.a.4)
- Equipment designed for the enhanced deposition of a layer of low-k dielectric through void-free plasma, meeting the provided technical specifications (3B001.d.19)
- Software specially designed for the development, production or use of the equipment in any of the ECCNs above (3D007)
- Technology that is necessary for the development, production or use of equipment in any of the ECCNs above (3E005)
Whereas Export Control Classification Numbers ("ECCN") are used for the identification of the items subject to the authorization requirements, these ECCNs are not included in the EU Dual-Use Regulation. According to the Explanatory Memorandum to the Decree, the main reason for restricting the exportation of the Advanced Semiconductor Manufacturing Equipment is that the semiconductors that can be produced using such equipment "can make a crucial contribution to certain advanced military applications and can be used to develop high-end military (weapon) systems and weapons of mass destruction". As such, the Dutch Government considers that the "[u]ncontrolled export of the production equipment […] has implications for public security interests, including international peace and stability."
For recent Chinese export control actions considered potentially related to the new Dutch export controls, please see our additional piece: China Imposes New Export Controls on Two Minerals Critical to the Manufacture of Semiconductors.
1 Regeling van de Minister voor Buitenlandse Handel en Ontwikkelingssamenwerking van 23 juni 2023, nr. MinBuza.2023.15246-27 houdende invoering van een vergunningplicht voor de uitvoer van geavanceerde productieapparatuur voor halfgeleiders die niet zijn genoemd in bijlage I van Verordening 2021/821 (Regeling geavanceerde productieapparatuur voor halfgeleiders).
In English: The Ministerial Decree by the Minister of Foreign Trade and Development Cooperation of 23 June 2023 (MinBuza.2023.15246-27) introducing an authorization requirement for the export of advanced semiconductor manufacturing equipment not listed in Annex I to Regulation (EU) 2021/821. (Decree on Advanced Semiconductor Manufacturing Equipment).
5 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 (recast), OJ L 206, 11 June 2021, p. 1–461 ("the EU Dual-Use Regulation").