EU ban on trade in instruments of torture
Regulation (EU) 2019/125 on trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment
WHAT IS THE AIM OF THE REGULATION?
It requires EU countries’ authorities to distinguish between goods that have no practical use other than carrying out capital punishment or torture* and goods that could be used for such purposes.
It bans trade in goods which can be used for the purpose of capital punishment, torture and other cruel, inhuman or degrading treatment or punishment*.
It sets out an authorisation system designed to prevent the export of goods that could be used for such purposes.
It introduces rules governing the supply of brokering services*, technical assistance*, training and advertising related to such goods.
It codifies Regulation (EC) No 1236/2005 which had been substantially amended several times.
The regulation bans:
exports and imports of goods which have no practical use other than for the purpose of capital punishment or for the purpose of torture and other cruel, inhuman or degrading treatment or punishment (Annex II);
the supply of technical assistance in respect of such goods;
brokers and suppliers of technical assistance from providing training on the use of such goods to non-EU countries; as well as both
- the promotion of such goods in trade fairs or exhibitions in the EU, and
- the sale or purchase of advertising space in print media or on the Internet, and of advertising time on television or radio, in relation to such goods.
The regulation sets out the rules for the issue of export authorisations.
Annex I lists the EU countries’ competent authorities permitted to issue such authorisations. Competent authorities must not grant an authorisation if there are reasonable grounds to believe that the goods could be used for the above purposes. No authorisation is required for goods that only pass through the EU’s customs territory.
Goods that could be used for the purpose of torture or other cruel, inhuman or degrading treatment or punishment are listed in Annex III.
Annex III does not include:
Goods that could be used for the purpose of capital punishment and have been approved or actually used for capital punishment by one or more non-EU countries that have not abolished capital punishment are listed in Annex IV. The conditions and requirements for the issue of an EU ‘General Export Authorisation’ are set out in Part 3 of Annex V. Part 2 of the same annex lists destination countries for which export authorisations are not required.
Authorisations for export, import or transit of goods that could be used for torture must be issued on a form based on the model set out in Annex VII.
Authorisations concerning brokering services must be issued on a form based on the model set out in Annex VIII.
Authorisations concerning technical assistance must be issued on a form based on the model set out in Annex IX.
All such authorisations are valid throughout the EU.
EU countries’ authorities may refuse to grant an export authorisation and cancel, suspend, amend or withdraw an authorisation that has already been granted.
If an authorisation is not granted, the customs authorities keep the goods declared and draw attention to the option of applying for an authorisation. The goods are destroyed after 6 months if they have not received a request for authorisation.
If there is a decision rejecting a request for authorisation, an EU country’s authorities must notify all other EU countries and the European Commission.
The Commission may amend the lists of goods as soon as new equipment or substances appears on the market.
EU countries must draw up annual activity reports.
FROM WHEN DOES THE REGULATION APPLY?
It has applied since 20 February 2019. Regulation (EU) 2019/125 codifies and replaces Regulation (EC) No 1236/2005 and its subsequent amendments.
Torture: any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from that person or from a third person information or a confession, punishing that person for an act that either that person or a third person has committed or is suspected of having committed, or intimidating or coercing that person or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted either by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. It does not, however, include pain or suffering arising only from, inherent in or incidental to, lawful penalties. Capital punishment is not deemed a lawful penalty under any circumstances.
Other cruel, inhuman or degrading treatment or punishment: any act by which pain or suffering attaining a minimum level of severity, whether physical or mental, is inflicted on a person, when such pain or suffering is inflicted either by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity. It does not, however, include pain or suffering arising only from, inherent in or incidental to, lawful penalties. Capital punishment is not deemed a lawful penalty under any circumstances.
Brokering services: the negotiation or arrangement of transactions for the purchase, sale or supply of relevant goods from a non-EU country to any other non-EU country, or the selling or buying of relevant goods that are located in a third country for their transfer to another non-EU country.
Technical assistance: any technical support related to repairs, development, manufacture, testing, maintenance, assembly or any other technical service, and may take forms such as instruction, advice, training, transmission of working knowledge or skills or consulting services. Technical assistance includes verbal forms of assistance and assistance provided by electronic means.
Regulation (EU) 2019/125 of the European Parliament and of the Council of 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment (codification) (OJ L 30, 31.1.2019, pp. 1-57)
Regulation (EU) No 258/2012 of the European Parliament and of the Council of 14 March 2012 implementing Article 10 of the United Nations’ Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against Transnational Organised Crime (UN Firearms Protocol), and establishing export authorisation, and import and transit measures for firearms, their parts and components and ammunition (OJ L 94, 30.3.2012, pp. 1-15)
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 into the original document. This consolidated version is of documentary value only.
Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment (OJ L 335, 13.12.2008, pp. 99-103)
last update 05.04.2019