by Gregor Pannike

EU dual use regulation reform

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)

On May 10, 2021, the EU adopted its new, revised version of Regulation (EC) No 428/2009.
This Regulation aims to ensure that in the area of dual-use items, the Union and its Member States fully take into account all relevant considerations. Relevant considerations include international obligations and commitments, obligations under relevant sanctions, considerations of national foreign and security policy, among them human rights, and considerations about intended end-use and the risk of diversion.

This Regulation also aims to strengthen the guidance to be given to exporters, in particular to small and medium- sized enterprises (SMEs), regarding responsible practices, yet without impairing the global competitiveness of exporters of dual-use items or other associated industry or academia which are resident or established in a Member State.


1. Strengthen controls on a broader range of emerging dual-use technologies:
This includes stricter controls on cyber-surveillance items which could be used in connection with violation of human rights. An authorization shall be required for the export of cyber-surveillance items not listed in Annex I if the exporter has been informed by the competent authority that the items in question are or may be intended, in their entirety or in part, for use in connection with internal repression and/or the commission of serious violations of human rights and international humanitarian law. Article 5(3) allows individual Member States to impose their own additional export license requirements for cyber-surveillance items not on the Dual-Use Control List. Articles 5(4) and 5(6) create an EU-level coordination mechanism providing for notification of other Member States when one Member State decides to impose a licensing requirement under Article 5(1), 5(2) or 5(3).

2. Enhance coordination between EU Member States and the European Commission regarding effective enforcement of controls of dual-use goods throughout the EU.
Art. 9 (1) of the regulation stipulates that a Member State may prohibit or impose an authorization requirement on the export of dual-use items not listed in Annex I for reasons of public security, including the prevention of acts of terrorism, or for human rights considerations. Member States shall notify the Commission and other Member States without delay of any amendment to measures adopted pursuant to Art. 9 (1), including any amendment to their national control list. In addition to this, an authorization shall be required for the export of dual use items not listed in Annex I of the regulations and if another Member State imposes an authorization requirement for the export of those items on the bases of a national list of items adopted by a Member State and published by the Commission. In essences this means that an export restriction imposed on national level by a Member State can be adopted by another Member State so that the same prohibition applies.

3. Provide an important role to companies in addressing risks to international security that may be posed by dual-use items and introduce due diligence obligations for producers:
Companies dealing with dual-use items are obliged to complying with strategic trade control requirements and related trade restrictions. They shall develop internal controls and measures to conduct a risk assessment / due diligence on dual use items. In this regard the European Commission published a non-binding guidance with recommendations on internal compliance programs (ICPs) for dual-use trade controls.

4. Arrange for better coordination between the EU and partner countries for enhanced international security via export controls at the global level:
Member States shall support each other by sharing information amongst themselves and with the European Commission. A mechanism should be introduced to enable Member States to coordinate their responses when a new risk is identified. Such coordination should be followed by initiatives to introduce equivalent controls at the multilateral level in order to broaden the response to the identified risk.

5. Expansion of brokering regulation:
The regulation re-defined the term “broker”. According to the new definition ‘broker’means any natural or legal person or any partnership that provides brokering services from the customs territory of the Union into the territory of a third country. Broker according to the new definition is a company or individual not resident or established in any Member State but provides brokering services from the custom territory of member state.

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