Dual use controls
Dual use goods are products and technologies normally used for civilian purposes but which may have military applications.
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:
- EU General Export Authorisations (EU GEAs) - cover exports of certain items to certain destinations as specified in Annex II of the dual-use Regulation. There are currently 6 EU GEAs in place:
- EU001 - exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland (including Liechtenstein) and United States of America
- EU002 - export of certain dual-use items to certain destinations
- EU003 - export after repair/replacement
- EU004 - temporary export for exhibition or fair
- EU005 - telecommunications
- EU006 - chemicals
- 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 Annex IIg to Regulation 428/2009
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 byindividual EU countries to one exporter and cover exports to one end user.
Export controls on dual-use goods in 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).
EU restrictive measures to third countries
Further to the adoption by the UN of the Resolution 1929 (2010), the Council has adopted on 26 July 2010 a common position repealing CP 2007/140/CFSP. The European Commission services are currently working on a proposal for a Council Regulation based on Article 215 in order to implement this new Common Position.
- Adoption by the UN of the Resolution 1929 (2010)
- Council common position 2007/140/CFSP
- COUNCIL REGULATION (EU) No 567/2010 of 29 June 2010 amending Regulation (EC) No 329/2007 concerning restrictive measures against the Democratic People’s Republic of Korea
- COUNCIL REGULATION (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran
- COUNCIL DECISION of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP
Green Paper on dual-use export controls
On 30 June 2011, the Commission adopted a Green Paper on the EU dual-use export control system. The Green Paper launches a broad public consultation concerning the functioning of the EU dual-use export control system. The Green Paper is divided into three parts: the first setting out the overall context of export controls; the second dealing with specific issues under the current dual-use Regulation; and the third elaborating on a mid-to long-term vision of export controls in the EU.
Stakeholders are invited to provide responses on all of the issues set out in the document. The deadline for comments is 31 October 2011.
More on Dual use controls
Update of Annex I
The EU dual-use export control system, as set out in Regulation 428/2009 , requires an authorisation for the export of dual-use items listed in the Annex to the Regulation.
Decisions to control the export of dual-use items are taken by consensus in international export control regimes (Australia Group (AG) for biological and chemical items; Nuclear Suppliers Group (NSG) for civil nuclear items, the Missile Technology Control Regime (MTCR) and the Wassenaar Arrangement (WA) for conventional arms and dual-use goods and technologies). These decisions are taken in order to limit the risk of sensitive dual-use items being used for military purposes and/or in proliferation programmes. With a view to making such controls as effective as possible, the international export control regimes bring together the major suppliers of dual-use items. By agreeing to control trade in specific items, they effectively work together to limit the proliferation risk, while ensuring that legitimate trade is not hindered.
Technological progress in today's world means that there is a need to regularly update the list of controlled items. Article 15 of Regulation 428/2009 specifies that "the list of dual-use items set out in Annex I shall be updated in conformity with the relevant obligations and commitments, and any modification thereof, that Member States have accepted as members of the international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties".
The EU regularly updates the list of controlled items in line with the decisions taken in the export control regimes. The last update of Annex I of the Regulation occurred on the occasion of the adoption of Regulation 428/2009 on 5 May 2009. Since this time, all of the international export control regimes have taken decisions to modify and update their control lists. Consequently, the Commission on 27 September 2010 adopted a proposal to update the control list (COM(2010) 509 final).
- REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual use items
- Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual use items
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.
- Implementation of the recommendations of the Peer Review of Member States’ export control systems for dual use goods
- 12 December 2006
- Format: PDF
- 2004 report on the Peer Review of Member States' implementation of the Regulation and yearly follow up reports
- 12 December 2004
- Format: PDF
- Report to Parliament and the Council on the implementation of Council Regulation (EC) No 1334/2000 setting up a community regime for the control of exports of dual-use items and technology October 2000 to May 2004
- New lines for action by the european union in combating the proliferation of weapons of mass destruction and their delivery systems
- 17 December 2008
- Format: PDF
- Best practice recommendations for elements of a Community End Use Certificate (for use, when appropriate, in accordance with Article 6(2) of Council Regulation (EC) No.1334/2000)
- 12 December 2008
- Format: PDF
- EU strategy against WMD proliferation by the European Council in December 2003
- December 2003
- Format: PDF
- Council joint action of 22 June 2000 concerning the control of technical assistance related to certain military end-uses
- 30 June 2000
- Format: PDF