Regulation n°428/2009 of May 5, 2009 amended by Regulation n°388/2012 of April 19, 2012, organizes the conditions for the export and the exchange of dual-use items and technologies.
As early as 2014, a consensus has been reached by the European Parliament, the Council and the Commission on the importance of constantly strengthening the effectiveness and coherence of the EU’s export control regime. This consensus led to a Commission proposal in 2016. The Parliament has adopted the INTA Commission’s report, thus mandating negotiators to enter into discussions with the Council.
While the Council has long been reluctant to accept the proposals of the Parliament and the Commission, the news of a tripartite agreement was announced on November 13, 2020.
A consensus has finally been reached and the Regulation will have to go through the ordinary legislative procedure of Article 294 TFEU (first and second reading before the Parliament and the Council). The final Regulation shall be published in the Official Journal around May 2021 and an entry into force is to be expected around September 2021.
- A redefinition of the key terms of export control.
The notion of dual-use items will be extended. Cyber-surveillance technologies will now be subject to export controls. They are defined in Article 1 of the draft Regulation as goods “designed to enable the covert surveillance of natural persons through the control, extraction, collection or analysis of data from information and telecommunications systems”. It should be noted that the European authorities have limited the scope of application of this notion to products monitoring natural persons, without mentioning legal persons.
Moreover, the very object of the regulation is extended. It should be noted that the Regulation is aimed at preventing the misuse of dual-use items in the context of acts of terrorism or human rights violations. The prevention of human rights violations becomes, first of all, a criterion for assessing the need to include any goods or technology in the list in Annex 1 of the Regulation and in the national control lists of member states. Secondly, it will become a reason for implementing the catch-all clause for certain cyber-surveillance technologies not listed in Annex 1.
The notion of exporter is also extended since it will also concern operators re-exporting European products. Natural persons are explicitly included in the definition of exporter. They may therefore be directly responsible for the transmission or provision of goods. The communication in electronic or oral format of these goods is also included in the scope of the directive. The rules imposed on operators in cases of technical assistance, transit and brokerage related to dual-use goods are also clarified.
- More integrated and harmonized controls
Generally speaking, there is a desire to simplify the administrative procedures required for granting authorizations and to harmonize them at the European level.
The definitions of authorizations and licensing conditions are harmonized. For example, all individual or global export licenses will be valid for a maximum of two years. The requirement for an internal compliance program and its terms and conditions as a condition for the granting of a global license will be implemented at the national level.
The introduction of a single license for large projects covering all exports related to the project concerned also provides an element of administrative flexibility. These authorizations will be valid for a maximum of four years (a longer period of validity may be granted if certain circumstances are met).
New general export authorizations will also be introduced, including for encrypted data, shipments below a certain value, intra-group transmission of software and technology.
The implementation of electronic licensing systems shall also be organized in all Member States.
- Uniform application of the “catch-all” clause
The agreement provides for the creation by each Member State of a “National Control List” including items not listed in Annex 1 for which the State in question has nevertheless considered that their export requires an authorization. An authority may therefore take national control measures for unlisted items, but it must identify them and communicate them to the Commission, which will be responsible for publishing them in the Official Journal of the EU. We also note the possibility for national authorities to rely on the “national control list” of another Member State to make the export of non-Annex I items subject to an authorization. This novelty will harmonize the practices regarding the catch-all clause and will serve to limit any export control shopping within the EU.
- Clarifications on internal compliance programs
While operators are generally encouraged to adopt an internal compliance policy (ICP), these will not be mandatory, except for global licensing. To this end, the Commission envisages setting up internal control programmes for the implementation of such ICPs.
The Customs and International Trade team of DS Avocats is at your disposal to provide you with any further information you may require.