The International Business Transactions Blog

EU’s New Export Regulation on Dual-Use Items

By BethEl Nager, Law Student Editor
and Aaron Fellmeth, Faculty Co-Editor

A new European Union (EU) Export Control Regulation was enacted on September 9, 2021. Through this rule, the European Commission (EC) strengthened the EU’s power over exports of “dual-use” goods. The dual-use classification applies to items that can be used by ordinary civilians but also have a technology component for use by military or security experts. These include such items as surveillance technologies, navigation and tracking equipment, lasers, encryption software, and toxic chemicals.  These new controls are intended to enhance protection for human rights in countries lacking appropriate safeguards.

The EU began the modernization of the export regulations in 2016 by replacing its prior regulations, dating to 2009 and adopted pursuant to consultations with the Wassenaar Arrangement, which was established in December of 1995. This arrangement coordinates dual-use export policy among 42 countries with advanced technological and manufacturing capabilities. The Wassenaar Arrangement works to protect the making of weapons, avoid the sale of dual-use goods to controversial and dangerous countries, and implement safe export policies. The EU has now assumed control over such export regulations to avoid variance in export policies among EU member states, although member states continue to review and grant exports licenses and to enforce the EU regulations.

The newest 2021 regulation by the EU Council of Ministers and Parliament has several components, with the intention of improving the current regulatory system:

  • The EU Export Control Regulation enhances controls over devices, technology and software not listed as controlled items by requiring a license if the exporter becomes aware that such items are intended for use by the importer for cyber-surveillance.
  • The term “exporters” was broadened to include natural persons and researchers who intend to transmit software or technology to a foreign country by electronic means.
  • The Commission is now authorized to change the list of controlled items by simplified procedures, adding flexibility and making it easier for the EU to respond to new concerns quickly as they arise.
  • Information exchanges between the Commission and the member state licensing authorities are now enhanced, and educational programs, such as the “capacity-building and training programme,” are being implemented to promote EU member state alignment with the regulation.

According to the EU’s Executive Vice-President and Commissioner for EU Trade, the regulation is necessary to respond to “emerging threats in an increasingly volatile world.”  These threats include more sophisticated cyber-surveillance, biotechnology, and more complex artificial intelligence, all of which can be used to violate human rights.

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