Dual-use export controls

SUMMARY OF:

Regulation (EU) 2021/821 setting up an EU regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items

WHAT IS THE AIM OF THE REGULATION?

It sets out rules throughout the European Union (EU) to control exports, brokering*, technical assistance, transit and transfer of dual-use items*.

KEY POINTS

Annex I to the regulation, based on internationally agreed controls, lists the dual-use items that require export authorisation. The list of dual-use items is amended periodically (see the updated list in the consolidated version of Regulation (EU) 2021/821).

These include:

nuclear materials, facilities and equipment;
special materials and related equipment;
materials processing;
electronics;
computers;
telecommunications and information security;
sensors and lasers;
navigation and avionics;
marine;
aerospace and propulsion systems.

Other dual-use items, including any associated brokering services or technical assistance, need export authorisation if they are intended, entirely or in part, for:

chemical, biological or nuclear weapons;
military use in countries subject to an arms embargo;
components of military items already exported from an EU Member State without the necessary authorisation.

Authorisation is required for:

the export of cybersurveillance items likely to be used for internal repression or serious violations of human rights and international humanitarian law;
the transfer of dual-use items listed in Annex IV, such as stealth technology and strategic control, from one Member State to another.

Member States may:

prohibit the transit on their territory of non-EU dual-use items if their intended use would breach the regulation;
ban or demand an export authorisation for items not listed in Annex I, for reasons of public security, including terrorism or human rights violations;
demand export authorisation, in certain circumstances, for the transfer of dual-use items from their territory to another Member State.

The regulation provides for five types of authorisation valid throughout the EU customs area.

EU general export authorisations. These are for certain destinations under certain conditions. They include authorisation for exports to Australia, Canada, Iceland, Japan, Liechtenstein, New Zealand, Norway, Switzerland, the United Kingdom and the United States.
National general export authorisations. These are issued by Member States if they are consistent with existing EU general export authorisations and they do not cover the export of dual-use software and technology to certain countries (Annex II G).
Individual and global. These are issued by national authorities for up to 2 years to one exporter* for the export of:
- one or more dual-use items to one end-user in a non-EU country (individual); or
- multiple items, countries and end-users (global).
Large project authorisations. Individual export authorisation or a global export authorisation granted to one specific exporter, in respect of a type or category of dual-use items which may be valid for exports to one or more specified end-users in one or more specified non-EU countries for the purpose of a specified large-scale project.

Exporters requesting authorisation must:

supply authorities with complete information, especially on the
- end-user,
- country of destination,
- end-use of the item exported;
keep detailed records of their exports for 5 years, including commercial documents such as invoices and transport material, to identify:
- the descriptions and quantities of the dual-use items,
- the names and addresses of the exporter and consignee,
- the end-use and end-user, when known.

Authorisations to provide brokering services and technical assistance are granted by national authorities and are valid throughout the EU customs area. They require details of:

the location, description and quantity of the dual-use items;
the third parties involved;
the country of destination;
the end-user and location.

Member States, when deciding to grant or refuse an authorisation request, must take into account:

the EU, national and international obligations and commitments, particularly relevant non-proliferation regimes and export controls;
any EU, Organisation for Security and Cooperation in Europe or United Nations sanctions;
the national foreign and security policy decisions;
the intended end-use and risk of diversion to another end-user or another end-use.

Member States must:

inform the European Commission of:
- the national authorities authorised to grant export authorisations and prohibit transit of non-EU dual-use items,
- the measures they take to enforce the regulation;
take every measure, together with the Commission, to establish direct cooperation and information exchange between national authorities to ensure the efficiency, consistency and enforcement of the export controls;
provide the Commission with the necessary information for its annual report.

The Commission has the following responsibilities.

It develops a secure and encrypted system to support cooperation and the exchange of information between national authorities and, where appropriate, the Commission itself.
Together with the Council, it issues guidelines and best-practice recommendations to ensure the system’s efficiency and consistency.
It submits an annual report to the European Parliament and the Council on the implementation of the regulation, in consultation with the Dual-Use Coordination Group. This includes the number, value and destination of authorisations and requests refused.
It uses a simplified procedure (delegated acts) to amend the list of items and destinations subject to specific controls.
It will carry out an initial evaluation of cybersurveillance authorisations after 10 September 2024, and a full evaluation of the regulation between 10 September 2026 and 10 September 2028. It will submit both evaluations to the European Parliament, the Council and the European Economic and Social Committee.

The regulation establishes a Dual-Use Coordination Group chaired by the Commission with a representative from each Member State. This group:

examines issues arising from the legislation;
can consult exporters, brokers, technical assistance providers and other individuals and bodies involved;
sets up groups of technical experts.

The Commission and Member States use exchanges of information and best practice, capacity building and outreach with non-EU countries to promote global convergence on dual-use export controls.

Delegated Regulation (EU) 2022/699 amends Regulation (EU) 2021/821 by removing Russia as a destination from the scope of EU general export authorisations, in light of Russia’s illegal attack on Ukraine’s territorial integrity, sovereignty, and independence and the respective threats to the EU’s essential security interests (see summary on restrictive measures against Russia).

Repeal

The regulation repeals and revises Regulation (EC) No 428/2009 (see summary) from 9 September 2021, except for authorisation applications made before this date, as stated in Article 31 of Regulation (EU) 2021/821.

FROM WHEN DOES THE REGULATION APPLY?

It has applied since 9 September 2021.

BACKGROUND

Dual-use goods and technology meet many civilian needs, but they can also be used for defence, intelligence and law enforcement.

Regulation (EU) 2021/821 provides a comprehensive system upgrade to strengthen the previous export control system and respond to evolving security risks and emerging technologies.

It expands cooperation between Member States and the Commission, places specific obligations on exporters and introduces controls to prevent cybersurveillance technologies from violating human rights.

The EU system is aligned with international rules and commitments made by the following:

KEY TERMS

Brokering. Negotiating with and arranging transactions between non-EU countries for the purpose of selling or buying dual-use items.

Dual-use items. Items, including software and technology, that can be used for both civil and military purposes.

Exporter. Any natural or legal person, including researchers or partnerships, physically sending, electronically transmitting or personally carrying dual-use items.

MAIN DOCUMENT

Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast) (OJ L 206, 11.6.2021, pp. 1–461).

Successive amendments to Regulation (EU) 2021/821 have been incorporated into the original text. This consolidated version is of documentary value only.