European Union Export Controls

Jurisprudence of the European Court of Justice in the area of dual-use goods 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.

Regulation 428/2009

Applicable in all EU countries, the EU export control regime is governed by Regulation 428/2009 which set up a community regime for the control of exports, transfers, brokering and transit of dual-use items. The Regulation entered into force on August 27, 2009. The list of controlled dual-use items is set out in its Annex. Note that items not listed in Annex I may also be subject to export controls under certain conditions.

Regulation 428/2009 introduced a number of significant changes to the scope of dual-use export controls in the European Union. These include the introduction of controls on brokering activities and transit with regard to dual-use items. The Regulation also updated the list of items controlled prior to export and integrated the decisions taken in the Nuclear Suppliers’ Group, the Wassenaar and MTCR regimes in 2008 as well as 2009 decisions of the Australia Group.

Under the EU regime, controlled items may not leave the EU customs territory without an export authorization.

• Dual-use items Dual-use items are goods, software, technology, documents and diagrams which are normally used for civilian purposes but which may have military applications. They can range from raw materials to components and complete systems, such as aluminium alloys, bearings, or lasers. They can also be items used in the production or development of military goods, such as machine tools, chemical manufacturing equipment and computers. The EU regularly updates the list of controlled items in line with the decisions taken in the export control regimes.
• Export authorizations (licenses) Under the EU regime, controlled items may not leave the EU customs territory without an export authorization. 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 authorizations:

  1. Community General Export Authorizations (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.
  2. National general export authorizations (NGAs) may be issued by individual EU countries, provided 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 authorizations. NGAs are published in the official journal of the issuing country.
  3. Global authorizations are granted by individual EU countries to one exporter and cover one or more items to one or more countries/end users
  4. 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 authorization. Suppliers wishing to apply for authorization should contact the competent national authorities for details of what information must be supplied.
• 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), and can introduce additional checks inside the EU (Article 11).
• EU restrictive measures to third countries Further to the adoption by the UN of Resolution 1929 (2010), the Council 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.
• Additional items may be subject to export controls National authorities may require export controls on unlisted dual-use items (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.

International export control regimes and the EU

The various international export control regimes which are at the origin of the control list implemented in the EU are:

• Wassenaar Arrangement, export control of arms and dual-use technologies
• Australia Group (AG), dual use biological and chemical items
• Missile Technology Control Regime (MTCR)
• Nuclear Suppliers Group (NSG), civil nuclear items

All 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 EU Member States are members of the Missile Technology Control Regime; The European Commission is a member of the Australia Group and is an observer to the NSG.

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