A Swiss technology company ships a batch of industrial components to a buyer in Asia. The components were classified as EAR99 by the US manufacturer – meaning they fall below the threshold of the US Export Administration Regulations and require no US export licence. The Swiss firm assumes this clears the transaction. It does not check the EU dual-use rules or the Swiss SECO controls. Three months later, the firm receives an inquiry from a regulator.
EAR99 is a US classification, not a global clearance. Under the EU dual-use regime and the Swiss SECO controls, goods that carry no US licence requirement may still require an authorisation, trigger end-use catch-all controls, or fall within a country-specific trade-restriction measure. The determinative question is not what the US says about a product but what each applicable regime independently says about it. As of April 2026, EU and Swiss rules have both expanded in scope, and the gap between an EAR99 assumption and a lawful export is wider than many compliance programmes acknowledge.
This analysis maps how the EU dual-use regime and the Swiss export-control rules administered by SECO treat goods that a US exporter has classified EAR99, where the two regimes diverge, and what that divergence means for cross-border businesses in practice.
What EAR99 actually means – and what it does not
EAR99 denotes that a product is subject to the US Export Administration Regulations but is not controlled for export under any specific entry on the US Commerce Control List; it carries no licence requirement for most destinations under ordinary conditions.
The classification is a US regulatory output. It tells a business where a product sits within the US control architecture. It says nothing about whether the same product is controlled under EU law, Swiss law, or any other national regime. EAR99 is not a harmonised international clearance. It does not dissolve control obligations that arise under a separate sovereign legal order.
This matters acutely in cross-border supply chains. A product leaving the EU or Switzerland is subject to the export-control rules of those jurisdictions at the point of export, regardless of how it is classified in Washington. In our experience, compliance teams that anchor their analysis in the EAR99 label and move on are consistently the ones who face control failures downstream.
The EU dual-use regime: the independent classification obligation
The EU dual-use regime operates on its own classification architecture, anchored in the relevant Council Regulation on the control of exports, brokering, technical assistance, transit, and transfer of dual-use items. The EU controls list mirrors the Wassenaar Arrangement, the Australia Group, the Missile Technology Control Regime, and the Nuclear Suppliers Group – but the transposition into EU law, and its application by individual Member State competent authorities, can diverge from the US position on specific items.
Under the EU regime, an exporter must determine independently whether a product falls within an entry on the EU dual-use list. An EAR99 determination by a US manufacturer is not binding on, and is not treated as determinative by, the EU competent authorities. The exporter of record under EU law – which may be the EU-based subsidiary, the EU freight forwarder, or the EU entity controlling the export transaction – bears the classification obligation. That obligation cannot be delegated to a non-EU party's regulatory conclusion.
There is also the catch-all mechanism. Even where an item does not appear on the EU dual-use list, the EU regime permits – and in certain circumstances requires – control of the export if the exporter knows or has been informed that the goods are or may be intended for a use connected to weapons of mass destruction or certain other specified end-uses. This catch-all operates independently of list classification. A product that is genuinely not list-controlled under EU law can still require an authorisation if the end-use flag is triggered. EAR99 status is irrelevant to the catch-all analysis.
The EU regime also includes country-specific measures, adopted through Council decisions and regulations, that impose trade restrictions on certain destinations. Some of these measures apply to goods that are not otherwise dual-use controlled. An EAR99 product exported from the EU to a destination subject to an EU trade-restriction regime must be checked against the specific prohibitions or licensing requirements in those measures.
SECO and the Swiss export-control architecture
Switzerland administers its export controls through the State Secretariat for Economic Affairs – SECO – under national legislation distinct from and not bound by EU law. Switzerland is not an EU member, and Swiss export-control rules are not an automatic mirror of EU controls, though Switzerland participates in the same multilateral control regimes.
The Swiss architecture identifies controlled goods through its own goods control list, which aligns with the multilateral regime schedules but is implemented through Swiss ordinances. An exporter based in Switzerland, or a re-exporter transshipping through Switzerland, must apply the Swiss classification independently. An EAR99 determination is not accepted as a substitute for a Swiss classification analysis. SECO has made clear through its published guidance that exporters are responsible for their own classification under the applicable Swiss controls.
Switzerland also maintains its own sanctions ordinances, which can impose trade restrictions and export prohibitions that go beyond, or differ in scope from, both US and EU measures. For certain destination countries and categories of goods, Swiss measures may be stricter than the EU position. For others, they may be narrower. The comparison is product-specific and destination-specific; there is no reliable shortcut.
An important practical point: Switzerland's autonomous sanctions ordinances are adopted by the Federal Council and are separate from the export-control licensing regime. A transaction may clear the Swiss goods-control licensing analysis but still be prohibited under a Swiss sanctions ordinance. Both must be checked. In our practice advising exporters on Swiss and EU controls, conflating these two bodies of rules is one of the most common and consequential errors we encounter.
Where do the EU and SECO regimes diverge?
The regimes share a common multilateral baseline but differ in implementation, scope, and the reach of accompanying sanctions measures, and those differences are material for cross-border supply chains.
First, country scope. The EU adopts trade-restriction measures through Council decisions and implementing regulations. SECO adopts autonomous sanctions ordinances through the Federal Council. The two do not always coincide. A destination that is subject to an EU embargo measure may or may not face the same restrictions under Swiss law, and the scope of prohibited transactions can differ even where both regimes impose measures on the same destination. Each jurisdiction must be checked against its own current list of applicable measures.
Second, the catch-all mechanism. The EU catch-all is embedded in the dual-use regulation and applies to non-listed items in defined circumstances. Switzerland has its own catch-all provisions under its goods control legislation, which are formulated differently. The triggering conditions, the knowledge and information standard, and the notification obligations are not identical. A transaction that clears the EU catch-all analysis on its facts may not clear the Swiss analysis on the same facts, and vice versa.
Third, transit and brokering. The EU regime includes specific controls on transit and brokering of dual-use items. SECO controls transit and brokering under its own provisions. The definitions of what constitutes brokering, and the conditions under which transit controls apply, differ. Businesses that broker transactions or route goods through Switzerland and the EU simultaneously need to map both sets of rules to the transaction structure.
Fourth, authorisation routes. The EU has established Union General Export Authorisations for specified goods and destinations, which provide a standing authorisation without a case-by-case application. Switzerland has its own authorisation instruments. The two sets of general authorisations do not cover identical goods-destination combinations. A business that relies on an EU general authorisation for a particular export cannot assume that the same export from a Swiss entity benefits from an equivalent Swiss instrument.
Where both regimes impose a control on the same transaction, the stricter prohibition governs the exporter's obligations in each jurisdiction. There is no cross-recognition; compliance with one regime does not relieve the obligation to comply with the other.
Risk flags for cross-border supply chains
EAR99 reliance in a cross-border context generates several distinct risk flags that compliance programmes must be built to detect.
The most significant is assumption migration. A classification determination made under the EAR by a US manufacturer migrates through the supply chain and is treated by downstream parties as a universal clearance. It is not. Each exporter in each jurisdiction applies its own legal obligations at the point of export. The liability cannot be shifted to a US supplier's EAR99 determination.
End-use red flags do not respect classification boundaries. If a buyer or an intermediate destination presents end-use or end-user risk – connections to restricted programmes, re-export to controlled destinations, anomalous purchasing patterns – that risk triggers catch-all analysis under both the EU and Swiss regimes regardless of EAR99 status. Does your screening programme generate an end-use query for every EAR99 shipment destined for a complex routing? If it does not, the gap is structural.
Transit and transshipment exposure is underappreciated. A product that is EAR99 and is transiting Switzerland on its way to a third-country destination may engage Swiss transit controls. The same shipment transiting the EU may engage EU transit provisions. The physical routing of a shipment is itself a regulatory event, not merely a logistics decision.
Finally, sanctions-overlay risk is separate from export-control classification risk. A product can be genuinely EAR99 and uncontrolled under EU and Swiss dual-use rules, yet be prohibited from export because the destination or the end-user is subject to a financial-sanctions or trade-restriction measure under OFAC, EU, SECO, or OFSI. Both the classification analysis and the sanctions screening must be conducted, and neither substitutes for the other.
Which regime applies to your transaction?
The applicable regime is determined by the export jurisdiction, the exporter of record, the destination, the routing, and the nature of the goods and their end-use – not by the goods' EAR99 status.
If the export originates in an EU Member State, the EU dual-use regulation and any applicable country-specific EU trade-restriction measures apply. The exporter of record under EU law bears the classification and licensing obligation. The relevant Member State competent authority administers the licensing process.
If the export originates in Switzerland, the Swiss goods-control ordinances and any applicable Swiss sanctions ordinances apply. SECO is the competent authority for licensing and for sanctions measures adopted by the Federal Council. Swiss rules apply to the exporter of record in Switzerland.
Where a transaction has elements in both jurisdictions – an EU entity acting as broker, a Swiss entity as exporter, goods physically moving through both territories – the analysis must be conducted separately for each jurisdiction's rules. A legal analysis that treats one jurisdiction's clearance as extending to the other will produce an incorrect result.
In our experience advising multinationals on cross-border export-control matters, the most resilient programmes are those that assign classification responsibility explicitly at each export point rather than relying on a centralised US-based determination that was never designed to carry legal weight outside the United States.
What a cross-border business should do
The practical response to EAR99 determination risk across the EU and SECO regimes is a structured, jurisdiction-specific classification and screening protocol applied at each point of export.
The first step is to audit the existing classification process. Identify every product in the catalogue that carries an EAR99 determination and map the jurisdictions from which those products are exported by group entities. For each export jurisdiction – EU Member States, Switzerland, others – identify the applicable export-control list and check each product independently against that list.
The second step is to implement an end-use screening layer that applies to all exports, including EAR99 goods. End-use and end-user red flags must be assessed against the catch-all controls of the relevant jurisdiction. This step is not optional for EAR99 goods; it is required by the structure of the EU and Swiss catch-all provisions.
The third step is to check the destination against applicable trade-restriction measures in each export jurisdiction. EU trade-restriction measures and Swiss sanctions ordinances must both be checked, and neither is a substitute for the other. Sanctions screening must be separate from and additional to the classification analysis.
The fourth step is to document the analysis. The EU regime and the Swiss regime both require exporters to maintain records of their export transactions and supporting compliance analysis. Keeping clear, dated records of classification decisions, end-use assessments, and sanctions checks is essential both for regulatory purposes and for demonstrating good faith in an enforcement context.
If any step in this sequence reveals a gap – a product that has not been classified under EU or Swiss rules, a destination that has not been checked against current trade-restriction measures, an end-use flag that has not been assessed – the gap should be addressed before the next shipment, not after.
The position above covers the standard case for EAR99 determination risk in the EU and SECO context. Your specific facts – the product, the export entity, the destination, the end-user, and the transaction structure – change the analysis materially. An early compliance review is significantly less costly than an enforcement response.
For an assessment of your export-control classification obligations across EU and Swiss jurisdictions, contact Calder & Vance at info@caldervance.com.
Related practices and analysis
- Deemed Export and Technology Controls under BIS and the EAR – advisory on technology transfers and US export licensing requirements for cross-border businesses.
- EAR99 determinations: OFAC vs EU compared – analysis of how OFAC sanctions screening interacts with EU dual-use classification for EAR99 goods.
- EAR99 determinations: OFAC vs OFSI compared – parallel analysis for UK-based exporters managing dual US and UK control obligations.
If a transaction has already been flagged, a shipment has been detained, or a regulatory inquiry has been received, an early review can preserve options that close with time. Contact us at info@caldervance.com.