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Dual use

Dual use - Illustration credit: PNNL - Pacific Northwest National Laboratory

Dual use goods are products and technologies normally used for civilian purposes but which may have military applications

Export controls on dual-use goods

Goods and technologies are considered to be dual-use when they can be used for both civil and military purposes.

Dual-use export controls in the EU

The EU export control regime is governed by Regulation 428/2009. The list of controlled dual-use items is set out in Annex I to Regulation 428/2009. Items not listed in Annex I may also be subject to export controls under certain conditions specified in the Regulation.

Under the EU regime, controlled items may not leave the EU customs territory without an export authorisation. Additional restrictions are also in place concerning the provision of brokering services with regard to dual-use items and concerning the transit of such items through the EU.

There are four types of export authorisations:
  • Community General Export Authorisations (CGEA) – cover exports of most controlled items to USA, Canada, Japan, Australia, New Zealand, Switzerland, Norway. There is a proposal to create new CGEAs to simplify the current system with regard to exports of certain items to low-risk destinations.
  • National general export authorisations (NGAs) – may be issued by individual EU countries, provided that they:
    • do not conflict with existing CGEAs
    • do not cover any of the items listed in part 2 of Annex II to Regulation 428/200

    France, Germany, Greece, Italy, Sweden, the Netherlands, and the UK currently have these authorisations. NGAs are published in the official journal of the issuing country

  • Global authorisations – are granted by individual EU countries to one exporter and cover one or more items to one or more countries/end users
  • Individual licenses – are granted by individual EU countries to one exporter and cover exports to one end user.
Transfers of dual-use goods between EU countries

Dual-use items may be traded freely within the EU except for those listed in Annex IV to Regulation 428/2009, which are subject to prior authorisation.

Suppliers wishing to apply for authorisation should contact the competent national authorities for details of what information must be supplied.

Additional items may be subject to export controls

National authorities may require export controls on unlisted dual-use items (see Articles 4 & 8 of Regulation 428/2009). Exporters should therefore refer to their relevant national rules and check the situation with regard to their specific transactions.

Such ad-hoc controls may apply where there is a risk that an export to a specific end-user might be diverted for use in a weapon of mass destruction, in violation of an embargo or in certain other situations specified in the Regulation.

Specific national rules

Individual EU countries may keep in place certain specific national rules.Such rules can apply to additional items to be controlled (Articles 4 & 8). They can require goods to be checked at specific border points (Article 17). They can introduce additional checks inside the EU (Article 11).

International export control regimes

The EU list of controlled items is based on control lists adopted by international export control regimes – the Australia Group (AG), the Nuclear Suppliers Group (NSG), the Wassenaar Arrangement and the Missile Technology Control Regime (MTCR).

The European Commission is a member of the Australia Group and of the Nuclear Suppliers Group.

Situation in candidate countries for EU membership

Turkey, Croatia and the Former Yugoslav Republic of Macedonia are required to apply the EU regime, and the EU is actively promoting Croatia's membership in all the regimes to which it is applying (Croatia is already member of Wassenaar and Nuclear Supplier's Group).

Supporting information

Legislation
Rulings of the European Court of Justice on export controls of dual-use items

Jurisprudence of the European Court of Justice in the area of dual-use goods has established that the rules restricting the exports of these goods to third countries fall within the scope of the common commercial policy, as set out in Article 133 of the EC Treaty. The ECJ delivered preliminary rulings in the case of "Werner" (Case C-70/94) and "Leifer" (case C-83/94).

In the "Werner" (Case C-70/94), the Court stated that "a measure (…) whose effect is to prevent or restrict the export of certain products, cannot be treated as falling outside the scope of the common commercial policy on the ground that it has foreign policy and security objectives".

In the "Leifer" (Case C-83/94), the Court stated that "Article 113 (now Article 133) of the EC Treaty is to be interpreted as meaning that rules restricting exports of dual-use goods to non-member countries fall within the scope of that article and that in this matter the Community has exclusive competence, which therefore excludes the competence of the Member States save where the Community grants them specific authorization". It also ruled that the fact that "a trade measure may have non-trade objectives does not alter the trade nature of such measures". The Court also stated that "the fact that the restriction concerns dual-use goods does not affect that conclusion. The nature of those products cannot take them outside the scope of the common commercial policy".

Implementation of the regulation

The Commission services have made a number of proposals to the Council to facilitate the implementation of these actions. In particular, Commission has been tasked by the council to coordinate "peer reviews of Member States' implementation of Regulation 1334/2000". A task force has been created to that end and has produced a report containing recommendations for follow up. Based on this report, the Working Party on Dual Use Goods presented to the Political and Security Committee a set of recommendations for follow-up which were endorsed (see Reports).

The EU status in international Export control regimes

The various international export control regimes which are at the origin of the control list implemented in the EU are the Nuclear Suppliers' Group, the Australia Group (chemical and biological dual use items), the Missile Technology Control Regime (MTCR) and the Wassenaar Arrangement (export control of arms and dual-use technologies).

All the EU Member States are members of the Australia Group (AG) and the Nuclear Suppliers Group (NSG). All Member States except Cyprus are members of the Wassenaar Arrangement. Most of the EU Member States are members of the Missile Technology Control Regime; The European Commission is only a member of the Australia Group and is an observer to the NSG. As detailed above, the Thessaloniki Action Plan recommended that the EU becomes a leading cooperative player in international export control regimes in particular by increased EU coordination on regimes' decisions, by the adoption of a strategy to support the membership of the new EU MS in the export control regimes (which led to their entry into NSG and AG in May 2004 and to Wassenaar for all of the new Member States except Cyprus in April 2005), by enhancing Commission's status in MTCR and Wassenaar.

More information

Fact sheet containing further information on EU dual-use export controls.

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