Dual-use items

An effective common system of export controls on dual-use items is necessary to ensure that the international commitments and responsibilities of the European Union (EU), especially regarding non-proliferation, are complied with, while ensuring a level playing field for EU exporters. The existence of a common control system would also help to ensure the free movement of such items within the EU. This regulation therefore establishes a regime for controlling the export, transfer, brokering and transit of dual-use items.

ACT

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.

SUMMARY

Dual-use items are items, including software and technology, which can be used for both civil and military purposes. It includes all goods that can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices.

In order to export a dual-use item from the European Union (EU) to any non-EU country, an export authorisation is required. Annex I of this regulation provides a list of dual-use items which require such an authorisation. An authorisation is also necessary for the export of dual-use items not listed in Annex I if the exporter has been informed by the competent authorities of the EU country in which he is established that the items in question are or may be intended, in their entirety or in part, for use in connection with:

the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices; or

the development, production, maintenance or storage of missiles capable of delivering such weapons.

Authorisation is also necessary for the export of dual-use items not listed in Annex I of this regulation if the exporter has been informed by the competent EU countries’ national authorities that the items in question are or may be intended for:

a military end-use * and the purchasing country or country of destination is subject to an arms embargo; or

use as parts or components of military items that have been exported from the EU without authorisation or in violation of an authorisation.

If an exporter is aware that the items in question, not listed in Annex I, are intended for any of the above listed uses, he must inform the relevant competent national authorities which will then decide whether an authorisation is necessary for the export concerned.

Authorisations are also required for brokering services concerning items listed in Annex I if the broker has been informed by the competent EU countries’ national authorities that the items in question are or may be intended for the development of weapons of mass destruction or their means of delivery. If the broker is aware that the items are or may be intended for these uses, he must inform the national authorities. These brokering controls can be extended under national legislation to also cover other situations.

Competent authorities of EU countries may prohibit the transit of non-EU dual-use items listed in Annex I if the items are or may be intended, in their entirety or in part, for the development of weapons of mass destruction or their means of delivery. These transit controls can be extended under national legislation to also cover other situations.

An EU country may introduce additional national legislation to prohibit or impose an authorisation requirement for dual-use items not listed in Annex I for reasons of public security or human rights considerations.

Export authorisation and authorisation for brokering services

Annex II of this regulation establishes an EU general export authorisation for certain exports. For all other exports which require an authorisation under this regulation, this authorisation will be granted by the competent authorities of the EU country in which the exporter is established.

Under this regulation, authorisations for brokering services are granted by the competent national authorities of the EU country in which the broker is resident or established. Such authorisations are granted for a set quantity of specific items moving between two or more non-EU countries. All authorisations, both for export and for brokering services, are valid throughout the EU.

To protect essential security interests, an EU country can request another EU country not to grant an export authorisation or, if the authorisation has already been granted, request its annulment, suspension, modification or revocation.

In accordance with this regulation, the competent authorities of an EU country can refuse to grant an export authorisation and can annul, suspend, modify or revoke an export authorisation already granted. In this case, or where they decide to prohibit a transit of dual-use items listed in Annex I, they must inform the Commission and the competent authorities of the other EU countries. Before granting an export or brokering authorisation, or deciding on a transit, an EU country must check whether similar transactions have been denied by other EU countries. If such transactions exist, then the EU countries involved must consult each other. Exporters and brokers of dual-use items must keep detailed registers or records of their exports and brokering services.

An authorisation is also required for the transfer between EU countries of dual-use items listed in Annex IV of this regulation. EU countries may implement additional national legislation extending controls on the transfer of certain items inside the EU.

Key terms used in the act

military end-use:

incorporation into military items listed in the military list of EU countries;

use of production, test or analytical equipment and components for the development, production or maintenance of military items listed in the military list of EU countries;

use of any unfinished products in a plant for the production of military items listed in the military list of EU countries.