Dual-use export controls (until 8 September 2021)

SUMMARY OF:

Regulation (EC) No 428/2009 — EU regime for the control of exports, transfer, brokering and transit of dual-use items

Note: Regulation (EU) 2021/821 recasts and repeals Regulation (EC) No 428/2009. However, as stipulated in Article 31 of Regulation (EU) 2021/821, for authorisation applications made before 9 September 2021, the relevant rules of Regulation (EC) No 428/2009 shall continue to apply.

WHAT IS THE AIM OF THE REGULATION?

It sets out a uniform European Union (EU) system to control the export, transfer, transit and brokering* of dual-use items*. This system seeks to ensure that the EU complies with its international commitments and responsibilities, especially regarding non-proliferation (i.e. preventing the spread of nuclear weapons).
It lays down a common EU control list and the rules for its implementation. An export authorisation is required to export a dual-use item from the EU to a non-EU country.

KEY POINTS

Dual-use items are goods and technology for civilian but also military use, including items that may assist in any way in the manufacturing of nuclear weapons or other nuclear devices.
Trade in dual-use items represents a sizeable portion of the EU’s external trade; the most recent data confirm that the volume of controlled dual-use exports from the EU was up to €85 billion.

EU list of dual-use items

Annex I of the regulation provides a list of dual-use items that require authorisation. By means of delegated acts adopted by the European Commission, Annex I is updated each year to align it with international rules and commitments undertaken by:
- the Australia Group,
- the Missile Technology Control Regime,
- the Nuclear Suppliers Group,
- the Wassenaar Arrangement on export controls for conventional arms and dual-use goods and technologies, and
- the Chemical Weapons Convention.
The export of certain dual-use items not listed in Annex I may be subject to authorisation when there is reason to believe that they are intended for use in connection with a biological, chemical, nuclear weapons or ballistic missile weapons programme or for military use in countries subject to an arms embargo.
In exceptional cases, EU Member States may impose additional controls on non-listed items for public security or human rights reasons.
Member States also apply restrictions on the brokering services of dual-use items and on their transit through the EU.
With the exception of some sensitive items listed in Annex IV of the regulation (such as electrically driven explosive detonators), dual-use items may be freely traded within the EU.

Export authorisations

There are four types of export authorisations, as indicated below.

EU general export authorisations allow the export of certain dual-use items to certain countries and under certain conditions (see Annex II of the regulation). They cover, for example:
- exports of certain dual-use items to countries such as Australia, Canada, Japan, New Zealand, Norway, Switzerland and the United States;
- exports of certain dual-use items after repair/replacement;
- temporary exports of some dual-use items for exhibitions/fairs;
- exports of certain telecommunications items and chemicals to certain destinations.
National general export authorisations may be issued by Member States if they are consistent with existing EU general export authorisations and do not refer to items listed in Annex II of the regulation (e.g. uranium; human and animal pathogens such as certain viruses, including Ebola).
Global licences are issued by national authorities to one exporter and may cover multiple items to multiple countries or end users.
Individual licenses are issued by national authorities to one exporter and cover exports of one or more dual-use items to one end user or consignee in a non-EU country.

Network of export control authorities

The regulation sets up a network of competent export control authorities, coordinated by the Dual-Use Coordination Group, which exchanges information on export controls and develops tools to support its implementation.

The export control policy review

The regulation requires the Commission to conduct a review of EU export control policy. In October 2013, the Commission presented an implementation and impact assessment report to the European Parliament and the European Council. It concludes that the current export control regime, while providing solid legal and institutional foundations, should be upgraded in order to generate the modern control capabilities the EU will need in future.
In April 2014, a communication was adopted outlining a long-term vision for EU strategic export controls and identifying concrete policy options for the modernisation of the export control system. In 2015, the Commission conducted an impact assessment and presented a legislative proposal to modernise EU export controls in September 2016.

Repeal of Regulation (EC) No 428/2009

Regulation (EU) 2021/821 recasts and repeals Regulation (EC) No 428/2009 with effect from 9 September 2021.

FROM WHEN DOES THE REGULATION APPLY?

It has applied since 27 August 2009.

BACKGROUND

For more information, see:

Dual-use export controls (European Commission)
Commission’s actions to implement new EU export control regulation — Memo (European Commission).

KEY TERMS

Brokering. The work of intermediaries who buy and sell on behalf of others.

Dual-use items. Items that can be used for both civil and military purposes, such as uranium, which can be used both for power generation and in nuclear weapons.

MAIN DOCUMENT

Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (OJ L 134, 29.5.2009, pp. 1–269).

Successive amendments to Regulation (EC) No 428/2009 have been incorporated in to the original document. This consolidated version is of documentary value only.