Dual-use export controls
Regulation (EC) No 428/2009 — EU regime for the control of exports, transfer, brokering and transit of dual-use items
WHAT IS THE AIM OF THIS REGULATION?
It sets out a uniform European Union (EU) system to control the export, transfer, transit and brokering (the work of intermediaries who buy and sell on behalf of others) 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 as well as rules for its implementation. An export authorisation is required to export a dual-use item from the EU to a non-EU country.
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. Annex I is updated each year to align it with international rules and commitments undertaken by:
Non-listed dual-use items: 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 countries may impose additional controls on non-listed items for public security or human rights reasons.
EU countries also apply restrictions on brokering services of dual-use items as well as on their transit through the EU.
Free movement of dual-use items within the EU: with the exception of some sensitive items listed in Annex IV of the regulation (like electrically driven explosive detonators), dual-use items may be freely traded within the EU.
There are 4 types of export authorisations, as indicated below.
EU general export authorisations (EUGEAs) 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 some dual-use items to countries such as Australia, Canada, Japan, New Zealand, Norway, Switzerland and the United States;
exports of some dual-use items after repair/replacement;
temporary exports of some dual-use items for exhibitions/fairs;
exports of some telecommunications items and chemicals to certain destinations.
National general export authorisations (NGEAs) may be issued by EU countries if they are consistent with existing EUGEAs and do not refer to items listed in Annex II of the regulation (e.g. uranium or 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 European Commission to conduct a review of EU export control policy. In October 2013, the Commission presented an implementation and impact assessment report to the 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 for a modernisation of EU export controls in September 2016.
FROM WHEN DOES THE REGULATION APPLY?
It has applied since 27 August 2009.
For more information, see:
* KEY TERMS
Dual-use items: items that can be used for both civil and military purposes, such as uranium that can be used both in power generation and in nuclear weapons.
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.
Communication from the Commission to the Council and the European Parliament — The review of export control policy: ensuring security and competitiveness in a changing world (COM(2014) 244 final, 24.4.2014)
last update 13.02.2017