December 13th, by Dimana Todorova
The EU is currently updating its rules regarding the export control of dual-use items and technologies in order to keep up with new technologies development and prevent authoritarian regimes from having access to products that can be used for military purposes.
For reminder, on 28 September 2016, the Commission adopted a proposal for a new regulation on the export control of dual-use items which will recast the regulation in force since 2009. The Commission’s proposal aims mainly to (i) simplify the administration of controls by optimizing licensing processes, introducing EU General Export Authorizations, and simplifying the controls on technology transfers; (ii) avoid divergent levels of controls throughout the EU by harmonizing the controls on brokering, technical assistance and transit of dual-use items; and (iii) introduce specific provisions preventing the misuse of dual-use items in relation to terrorism or internal conflicts, by extending the scope of the so-called catch-all clause.
From Council side, the Council Working Party on Dual-Use Goods has started to work on the legislative proposal but its records are not publicly available.
In its capacity as co-legislator, the European Parliament must prepare a position on the proposal. The Committee for International Trade (INTA) is responsible for drafting the Parliament’s position. In parallel, the Committee on Foreign Affairs (AFET) has also prepared an opinion on the proposal.
The European Parliament has not yet taken a position on the Commission’s proposal. Members of the INTA Committee, however, adopted their opinion on 23 November 2017. The EU Trade Committee MEPs voted to strengthen export controls and to extend it to goods and technologies designed for civilian use but possibly used for human rights violations.
The new rules would enhance ‘human security’, by adding certain cyber-surveillance tools to the list of items that need the approval of national authorities before being exported. These include devices for intercepting mobile phones, hacking computers, circumventing passwords or identifying internet users, as such dual-use items are widely used to suppress civilians, political opposition and activists around the world. MEPs, however, voted to delete encryption technologies from the list of cyber-surveillance products, as they consider these vital for the self-defence of human rights defenders.
INTA’s key suggestions to the Commission’s proposal include:
- strengthening the protection of the right to privacy, data and, freedom of assembly, by adding clearer criteria and definitions to the regulation,
- exporters of products not listed in the regulation but which could be used for human-rights violations, have to make sure that their goods won’t fall into the wrong hands, by following OECD-based ‘due-diligence’ guidelines,
- the Commission must publish a handbook before the entry into force of the new rules, so that EU businesses will be prepared for the new legislation,
- new risks and technologies have to be included in the regulation, and
- creating more homogenous rules among Member States, by, for example, introducing similar penalties for non-compliance, along with greater transparency of national authorities’ export control decisions.
Despite an unanimous denunciation of the Commission’s proposal by EU businesses, INTA supports the significant and burdensome changes it contains.
The Commission’s proposal will be decided upon by the Council and the European Parliament in the ordinary legislative procedure. The Parliament’s first reading on the proposal is expected on 16 January 2018. The Parliament can begin talks with ministers as soon as EU Member States have agreed their own negotiating position.
Even though it is difficult to predict how long the legislative process will eventually take, an implementation of this new regulation is presumably to be expected before the summer of 2018. This would mean that companies should already start reviewing their export control policies in order to be up to date with these new rules.