EU: Updated “dual-use” regulation and export control framework

Coordination between EU Member States to support the efficient enforcement of controls across the EU

Coordination between EU Member States to support the efficient enforcement of controls

The recast “dual-use” regulation (Regulation 2021/821) was published in the Official Journal of the European Union in June 2021—almost five years after the European Commission proposed to replace Council Regulation (EC) No. 428/2009.

The new dual-use regulation aims at strengthening controls on a broader spectrum of evolving dual-use items (items that can be used for both civilian and military purposes) and the coordination between EU Member States to support the efficient enforcement of controls across the EU.

Changes include:

  • Two additional union general export authorizations (UGEAs): These concern (1) intra-group export of software and technology, and (2) encryption and are designed to reduce the administrative burden for businesses and the authorities responsible for licensing.
  • New controls on cyber-surveillance technology: The new regulation focuses more on the control of cyber-surveillance items—for example, by introducing a “catch-all” article on the export of cyber-surveillance items not listed in Annex I if the items are or may be intended for “use in connection with internal repression and/or the commission of serious violations of human rights and international humanitarian law.”
  • Obligation for an internal compliance programme (ICP): Contrary to the current dual-use regulation, the new dual-use regulation explicitly mentions that the relevant stakeholders (exporters, brokers, etc.) are to implement an ICP in order to obtain global export authorizations.
  • Technical assistance: The new regulation harmonizes the rules regarding technical assistance within the EU. A new provision is introduced that imposes a licensing requirement on technical assistance related to all dual-use items in Annex I. Technical assistance means “any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service, and may take forms such as instruction, advice, training, transmission of working knowledge or skills or consulting services, including by electronic means as well as by telephone or any other verbal forms of assistance.”

Read a June 2021 report prepared by the KPMG member firm in the Netherlands

 

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