EXPLANATORY MEMORANDUM
1.CONTEXT OF THE DELEGATED ACT
The objective of Regulation (EU) 2019/125 (‘the Regulation’) concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment 1 is to prevent, in countries outside the EU, capital punishment, on the one hand, and torture and other cruel, inhuman or degrading treatment or punishment, on the other.
It distinguishes between:
- goods that are inherently abusive and should not be traded at all (Annex II); and
- goods that can have legitimate uses, such as law enforcement equipment (Annex III) and goods for therapeutic use (Annex IV).
Trade in goods listed in Annexes III and IV are to be subject to effective control when they are exported from or transit through the European Union or are delivered to a third country as a result of brokering services or technical assistance.
The Regulation was designed to be a "living instrument", incorporating mechanisms that allow the European Parliament, the Council, and the Commission to collectively respond to changes in the international security marketplace and in the nature of use and misuse of law enforcement equipment, as well as address technological developments in trade.
The list of goods described in the Regulation needs to stay up to date in order to respond, on the one hand, to changes in the international security market where technological and market developments are frequently occurring and, on the other hand, to changes in use, and misuse, of law enforcement equipment as noted in the Commission’s 2020 review report 2 . To remain fit for purpose, the Regulation also needs to respond to emerging trends and challenges observed in recent years as regards extra-custodial torture and ill-treatment in the context of the repression of peaceful protests. In recent years, the so-called less lethal weapons, including pepper spray, water cannons, and rubber bullets have been routinely misused by law enforcement authorities in some countries to suppress dissent and silence peaceful protesters, contributing to increasing numbers of citizens being seriously injured or killed. Protesters in some parts of the world have increasingly been subjected to excessive, unlawful, or unnecessary use of force 3 .
The current list of goods was last updated by Regulation (EU) 2016/2134 of the European Parliament and of the Council of 23 November 2016 amending Council Regulation (EC) No 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment 4 .
This delegated act presents amendments to list of goods described in Annex II and Annex III. Annex II comprises 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 III comprises the goods that could be used for the purpose of torture or other cruel, inhuman or degrading treatment or punishment:
goods which are primarily used for law enforcement purposes.
goods which, taking into account their design and technical features, present a material risk of use for torture or other cruel, inhuman or degrading treatment or punishment.
The delegated act prohibits weapons, devices and equipment disseminating incapacitating or irritating chemical or certain related substances and related ammunition which are not suitable for use by law enforcement authorities to restrain human beings or for the purpose of riot control or self-protection. The delegated act furthermore prohibits goods where there is a high risk of inflicting pain or suffering so severe that it may amount to torture or cruel, inhuman or degrading treatment or punishment.
The amendments build primarily upon the conclusions of the 2020 Commission’s report as regards the scope of goods 5 , the work of the Commission’ s informal group of experts for the implementation of the Regulation, reports from the UN Special Rapporteur on Torture 6 and from organizations engaged in the protection of human rights as well as relevant international standards in this field 7 . For example, the UN Standard Minimum Rules for the Treatment of Prisoners (revised in 2015 and referred to as the Nelson Mandela Rules) prohibit the use of instruments of restraint which are inherently degrading or painful as they fulfil no legitimate law enforcement purpose that cannot be achieved using standard hand or leg restraints explain the inclusion of gang chains in Annex II, while previously included in Annex III.
2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
Article 29 (4) of the Regulation provides that ‘Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making 8 ’.
Recital 46 of the Regulation provides that ‘It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making’.
Furthermore recital 48 of the Regulation provides that ‘If the Commission decides to consult the group when preparing delegated acts, it should do so in accordance with the principles laid down in the Inter-institutional Agreement of 13 April 2016 on Better Law-Making’.