Revision of EU Regulation for Trade of Dual-Use Items

The European Union intends to modernize its legal framework for the control of exports, brokering, technical assistance, transit and transfer of dual-use items. Considering the fact that these strategic items are capable of serving both civilian and military purposes, it is indeed vital for the EU to adapt to the continuous technological, economic and political evolutions that shape this field.

The main objective for the EU is therefore to update and extend the existing rules laid down in Regulation 428/2009, which dates back from 2009, by making more accountable, competitive and transparent trade in dual use items.

Under the auspices of the German Presidency, the Council and the representatives of the European Parliament reached on November 9, 2020, a provisional political agreement on a revised Regulation. The latter is aimed at further strengthening the non-proliferation of weapons of mass destruction and their means of delivery, regional peace, security and stability as well as respect for human rights and international humanitarian law by controlling the export of these items from the European Union.

– New provisions will introduce stricter export controls in the field of cyber-surveillance technology (e.g. wiretapping) so as to prevent human rights violations and security threats linked to their potential misuse. At the same time, an EU-level coordination mechanism will favor deeper cooperation among Member States for the exchange of cyber-surveillance items. (For information on the cooperation mechanism with respect to screening foreign direct investments into the EU applicable as of 11 October 2020, see our news).

– The administrative burden for companies and licensing authorities is expected to be lowered through the introduction of a general EU export authorization for cryptographic items and intra-group technology transfers.

– Cooperation between licensing and custom authorities will also be strengthened to better enforce controls, while appropriate mechanisms will enable Member States to reinforce their cooperation.

– Member States shall be able to introduce export controls on the basis of another Member State’s national law under certain circumstances. These transmissible controls will favor a cross-border effect among the Member States’ export controls.

– Finally, the introduction of new reporting rules is intended to foster a transparent trade in dual-use items, while guaranteeing the confidentiality of business secrets and national security interests.

The Proposal has now to be approved by the Member States in the Committee of Permanent Representatives (Coreper). The Parliament and the Council will be then asked to adopt the proposed Regulation at first reading.

For any queries on the matter, pleae contact Jan Helge Mey, LL.M. (McGill)