Legal provisions of COM(2016)616 - Union regime for the control of exports, transfer, brokering, technical assistance and transit of dual-use items (recast)

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dossier COM(2016)616 - Union regime for the control of exports, transfer, brokering, technical assistance and transit of dual-use items (recast).
document COM(2016)616 EN
date May 20, 2021

Contents

CHAPTER I - SUBJECT AND DEFINITIONS


Article 1

This Regulation establishes a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items.

Article 2

For the purposes of this Regulation, the following definitions apply:

(1)‘dual-use items’ means items, including software and technology, which can be used for both civil and military purposes, and includes items which can be used for the design, development, production or use of nuclear, chemical or biological weapons or their means of delivery, including all items which can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices;

(2)‘export’ means:

(a)an export procedure within the meaning of Article 269 of the Union Customs Code;

(b)a re-export within the meaning of Article 270 of the Union Customs Code; a re-export also occurs if, during a transit through the customs territory of the Union according to point (11) of this Article, an exit summary declaration has to be lodged because the final destination of the items has been changed;

(c)an outward processing procedure within the meaning of Article 259 of the Union Customs Code; or

(d)transmission of software or technology by electronic media, including by fax, telephone, electronic mail or any other electronic means to a destination outside the customs territory of the Union; it includes making available in an electronic form such software and technology to natural or legal persons or to partnerships outside the customs territory of the Union; it also includes the oral transmission of technology when the technology is described over a voice transmission medium;

(3)‘exporter’ means:

(a)any natural or legal person or any partnership that, at the time when the export declaration or the re-export declaration or an exit summary declaration is accepted, holds the contract with the consignee in the third country and has the power to determine the sending of the items out of the customs territory of the Union; where no export contract has been concluded or if the holder of the contract does not act on its own behalf, exporter means the person who has the power to determine the sending of the items out of the customs territory of the Union; or

(b)any natural or legal person or any partnership that decides to transmit software or technology by electronic media, including by fax, telephone, electronic mail or by any other electronic means to a destination outside the customs territory of the Union or to make available in an electronic form such software and technology to natural or legal persons or to partnerships outside the customs territory of the Union.

Where the benefit of a right to dispose of the dual-use item belongs to a person resident or established outside the customs territory of the Union pursuant to the contract on which the export is based, the exporter shall be considered to be the contracting party resident or established in the customs territory of the Union;

(c)where point (a) or (b) is not applicable, any natural person carrying the dual-use items to be exported where these dual-use items are contained in the person’s personal baggage within the meaning of point (a) of Article 1(19) of Commission Delegated Regulation (EU) 2015/2446 (13);

(4)‘export declaration’ means an act whereby any natural or legal person or any partnership indicates, in the prescribed form and manner, the wish to place dual-use items specified in point (1) under an export procedure;

(5)‘re-export declaration’ means an act within the meaning of Article 5(13) of the Union Customs Code;

(6)‘exit summary declaration’ means an act within the meaning of Article 5(10) of the Union Customs Code;

(7)‘brokering services’ means:

(a)the negotiation or arrangement of transactions for the purchase, sale or supply of dual-use items from a third country to any other third country; or

(b)the selling or buying of dual-use items that are located in third countries for their transfer to another third country.

For the purposes of this Regulation, the sole provision of ancillary services is excluded from this definition. Ancillary services are transportation, financial services, insurance or re-insurance, or general advertising or promotion;

(8)‘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;

(9)‘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;

(10)‘provider of technical assistance’ means:

(a)any natural or legal person or any partnership that provides technical assistance from the customs territory of the Union into the territory of a third country;

(b)any natural or legal person or any partnership resident or established in a Member State that provides technical assistance within the territory of a third country; or

(c)any natural or legal person or any partnership resident or established in a Member State that provides technical assistance to a resident of a third country temporarily present in the customs territory of the Union;

(11)‘transit’ means a transport of non-Union dual-use items entering and passing through the customs territory of the Union with a destination outside the customs territory of the Union where those items:

(a)are placed under an external transit procedure according to Article 226 of the Union Customs Code and only pass through the customs territory of the Union;

(b)are trans-shipped within, or directly re-exported from, a free zone;

(c)are in temporary storage and are directly re-exported from a temporary storage facility; or

(d)were brought into the customs territory of the Union on the same vessel or aircraft that will take them out of that territory without unloading;

(12)‘individual export authorisation’ means an authorisation granted to one specific exporter for one end-user or consignee in a third country and covering one or more dual-use items;

(13)‘global export authorisation’ means an authorisation granted to one specific exporter in respect of a type or category of dual-use items which may be valid for exports to one or more specified end-users and/or in one or more specified third countries;

(14)‘large project authorisation’ means an individual export authorisation or a global export authorisation granted to one specific exporter, in respect of a type or category of dual-use items which may be valid for exports to one or more specified end-users in one or more specified third countries for the purpose of a specified large-scale project;

(15)‘Union general export authorisation’ means an export authorisation for exports to certain countries of destination that is available to all exporters who respect the conditions and requirements listed in Sections A to H of Annex II;

(16)‘national general export authorisation’ means an export authorisation defined by national legislation in accordance with Article 12(6) and Section C of Annex III;

(17)‘customs territory of the Union’ means the customs territory of the Union within the meaning of Article 4 of the Union Customs Code;

(18)‘non-Union dual-use items’ means items that have the status of non-Union goods within the meaning of Article 5(24) of the Union Customs Code;

(19)‘arms embargo’ means an arms embargo imposed by a decision or a common position adopted by the Council or a decision of the Organisation for Security and Cooperation in Europe (OSCE) or an arms embargo imposed by a binding resolution of the Security Council of the United Nations;

(20)‘cyber-surveillance items’ means dual-use items specially designed to enable the covert surveillance of natural persons by monitoring, extracting, collecting or analysing data from information and telecommunication systems;

(21)‘internal compliance programme’ or ‘ICP’ means ongoing effective, appropriate and proportionate policies and procedures adopted by exporters to facilitate compliance with the provisions and objectives of this Regulation and with the terms and conditions of the authorisations implemented under this Regulation, including, inter alia, due diligence measures assessing risks related to the export of the items to end-users and end-uses;

(22)‘essentially identical transaction’ means a transaction concerning items with essentially identical parameters or technical characteristics and involving the same end-user or consignee as another transaction.

CHAPTER II - SCOPE


Article 3

1. An authorisation shall be required for the export of dual-use items listed in Annex I.

2. Pursuant to Article 4, 5, 9 or 10, an authorisation may also be required for the export to all or certain destinations of certain dual-use items not listed in Annex I.

Article 4

1. An authorisation shall be required for the export of dual-use 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:

(a)for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons;

(b)for a military end-use if the purchasing country or country of destination is subject to an arms embargo; for the purposes of this point, ‘military end-use’ means:

(i)incorporation into military items listed in the military list of Member States;

(ii)use of production, test or analytical equipment and components therefor, for the development, production or maintenance of military items listed in the military list of Member States; or

(iii)use of any unfinished products in a plant for the production of military items listed in the military list of Member States;

(c)for use as parts or components of military items listed in the national military list that have been exported from the territory of a Member State without authorisation or in violation of an authorisation prescribed by the national legislation of that Member State.

2. Where an exporter is aware that dual-use items which he proposes to export, not listed in Annex I, are intended, in their entirety or in part, for any of the uses referred to in paragraph 1 of this Article, the exporter shall notify the competent authority. That competent authority shall decide whether or not to make the export concerned subject to authorisation.

3. A Member State may adopt or maintain national legislation imposing an authorisation requirement on the export of dual-use items not listed in Annex I if the exporter has grounds for suspecting that those items are or may be intended, in their entirety or in part, for any of the uses referred to in paragraph 1 of this Article.

4. A Member State which imposes an authorisation requirement pursuant to paragraph 1, 2, or 3 shall immediately inform its customs authorities and other relevant national authorities and provide the other Member States and the Commission with relevant information on the authorisation requirement in question, in particular as regards the items and end-users concerned, unless it considers that it is not appropriate to do so in light of the nature of the transaction or the sensitivity of the information concerned.

5. Member States shall give due consideration to information received pursuant to paragraph 4 and shall inform their customs authorities and other relevant national authorities thereof.

6. In order to allow for an examination of all valid denials by the Member States, Article 16(1), (2) and (5) to (7) shall apply to cases concerning dual-use items not listed in Annex I.

7. All exchanges of information required pursuant to this Article shall take place in accordance with the legal requirements concerning the protection of personal information, commercially sensitive information or protected defence, foreign policy or national security information. Such exchanges of information shall be made via secure electronic means, including through the system referred to in Article 23(6).

8. This Regulation is without prejudice to the right of Member States to take national measures under Article 10 of Regulation (EU) 2015/479.

Article 5

1. An authorisation 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.

2. Where an exporter is aware, according to its due diligence findings, that cyber-surveillance items which the exporter proposes to export, not listed in Annex I, are intended, in their entirety or in part, for any of the uses referred to in paragraph 1 of this Article, the exporter shall notify the competent authority. That competent authority shall decide whether or not to make the export concerned subject to authorisation. The Commission and the Council shall make available guidelines for exporters, as referred to in Article 26(1).

3. A Member State may adopt or maintain national legislation imposing an authorisation requirement on the export of cyber-surveillance items not listed in Annex I if the exporter has grounds for suspecting that those items are or may be intended, in their entirety or in part, for any of the uses referred to in paragraph 1 of this Article.

4. A Member State which imposes an authorisation requirement pursuant to paragraph 1, 2 or 3 shall immediately inform its customs authorities and other relevant national authorities and shall provide the other Member States and the Commission with relevant information on the authorisation requirement in question, in particular as regards the items and entities concerned, unless it considers that it is not appropriate to do so in light of the nature of the transaction or the sensitivity of the information concerned.

5. Member States shall give due consideration to information received pursuant to paragraph 4 and shall review it in light of the criteria set out in paragraph 1 within 30 working days. They shall inform their customs authorities and other relevant national authorities. In exceptional cases, any Member State may request the extension of that 30-day period. However, the extension shall not exceed 30 working days.

6. Where all Member States notify each other and the Commission that an authorisation requirement should be imposed for essentially identical transactions, the Commission shall publish in the C series of the Official Journal of the European Union information regarding the cyber-surveillance items and, where appropriate, destinations subject to authorisation requirements as notified by Member States for that purpose.

7. Member States shall review the information published pursuant to paragraph 6 at least annually, on the basis of relevant information and analyses provided by the Commission. Where all Member States notify each other and the Commission that the publication of an authorisation requirement should be amended or renewed, the Commission shall promptly and accordingly amend or renew the information published pursuant to paragraph 6 in the C series of the Official Journal of the European Union.

8. In order to allow for an examination of all valid denials by the Member States, Article 16(1), (2) and (5) to (7) shall apply to cases concerning cyber-surveillance items not listed in Annex I.

9. All exchanges of information required pursuant to this Article shall take place in accordance with the legal requirements concerning the protection of personal information, commercially sensitive information or protected defence, foreign policy or national security information. Such exchanges of information shall be made via secure electronic means, including through the system referred to in Article 23(6).

10. Member States shall consider supporting the inclusion of items published pursuant to paragraph 6 of this Article in the appropriate international non-proliferation regimes or export control arrangements with a view to extending controls. The Commission shall provide analyses of the relevant data gathered pursuant to Article 23(2) and to Article 26(2).

11. This Regulation is without prejudice to the right of Member States to take national measures under Article 10 of Regulation (EU) 2015/479.

Article 6

1. An authorisation shall be required for the provision of brokering services of dual-use items listed in Annex I if the broker has been informed by the competent authority that the items in question are or may be intended, in their entirety or in part, for any of the uses referred to in Article 4(1).

2. Where a broker proposes to provide brokering services of dual-use items listed in Annex I and is aware that those items are intended, in their entirety or in part, for any of the uses referred to in Article 4(1), the broker shall notify the competent authority. That competent authority shall decide whether or not to make such brokering services subject to authorisation.

3. A Member State may extend the application of paragraph 1 to non-listed dual-use items.

4. A Member State may adopt or maintain national legislation imposing an authorisation requirement on the provision of brokering services of dual-use items if the broker has grounds for suspecting that those items are or may be intended for any of the uses referred to in Article 4(1).

5. Article 9(2), (3) and (4) shall apply to the national measures referred to in paragraphs 3 and 4 of this Article.

Article 7

1. The transit of non-Union dual-use items listed in Annex I may be prohibited at any time by the competent authority of the Member State where the items are situated if the items are or may be intended, in their entirety or in part, for any of the uses referred to in Article 4(1).

2. Before deciding whether or not to prohibit a transit the competent authority may, in individual cases, impose an authorisation requirement for the specific transit of dual-use items listed in Annex I if the items are or may be intended, in their entirety or in part, for any of the uses referred to in Article 4(1). If the transit takes place through the territory of multiple Member States, the competent authority of each affected Member State shall be able to prohibit such transit through its territory.

The competent authority may impose the authorisation requirement on the natural or legal person or the partnership that holds the contract with the consignee in the third country and has the power to determine the sending of the items passing through the customs territory of the Union.

If the natural or legal person or the partnership is not resident or established in the customs territory of the Union, the competent authority may impose the authorisation requirement on:

(a)the declarant within the meaning of Article 5(15) of the Union Customs Code;

(b)the carrier within the meaning of Article 5(40) of the Union Customs Code; or

(c)the natural person carrying the dual-use items in transit where those dual-use items are contained in the personal baggage of that person.

3. A Member State may extend the application of paragraph 1 to non-listed dual-use items.

4. Article 9(2), (3) and (4) shall apply to the national measures referred to in paragraph 3 of this Article.

Article 8

1. An authorisation shall be required for the provision of technical assistance related to dual-use items listed in Annex I if the provider of technical assistance has been informed by the competent authority that the items in question are or may be intended, in their entirety or in part, for any of the uses referred to in Article 4(1).

2. Where a provider of technical assistance proposes to provide technical assistance for dual-use items listed in Annex I and is aware that those items are intended, in their entirety or in part, for any of the uses referred to in Article 4(1), the provider of technical assistance shall notify the competent authority. That competent authority shall decide whether or not to make such technical assistance subject to authorisation.

3. Paragraphs 1 and 2 shall not apply if the technical assistance:

(a)is provided within or into the territory of a country listed in Part 2 of Section A of Annex II, or towards a resident of a country listed in Part 2 of Section A of Annex II;

(b)takes the form of transferring information that is in the public domain or basic scientific research within the meaning of the General Technology Note or of the Nuclear Technology Note set out in Annex I;

(c)is provided by authorities or agencies of a Member State in the context of their official tasks;

(d)is provided for the armed forces of a Member State on the basis of the tasks assigned to them;

(e)is provided for a purpose which is cited in the exceptions for items of the Missile Technology Control Regime (MTCR technology) in Annex IV; or

(f)is the minimum necessary for the installation, operation, maintenance (checking) or repair of those items for which an export authorisation has been issued.

4. A Member State may extend the application of paragraph 1 to non-listed dual-use items.

5. A Member State may adopt or maintain national legislation imposing an authorisation requirement on the provision of technical assistance where a provider of technical assistance who proposes to provide technical assistance for dual-use items has grounds for suspecting that those items are or may be intended for any of the uses referred to in Article 4(1).

6. Article 9(2), (3) and (4) shall apply to the national measures referred to in paragraphs 4 and 5 of this Article.

Article 9

1. A Member State may prohibit or impose an authorisation 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.

2. Member States shall notify the Commission and the other Member States of any measures adopted pursuant to paragraph 1 without delay and indicate the precise reasons for the measures. If the measure is the establishment of a national control list, Member States shall also inform the Commission and the other Member States of the description of the controlled items.

3. Member States shall, without delay, notify the Commission and the other Member States of any amendment to measures adopted pursuant to paragraph 1, including any amendment to their national control lists.

4. The Commission shall publish the measures notified to it pursuant to paragraphs 2 and 3 in the C series of the Official Journal of the European Union. The Commission shall publish separately, without delay and in all the official languages of the Union, a compilation of national control lists in force in the Member States. The Commission shall, upon notification by a Member State of any amendment to its national control list, publish, without delay and in all the official languages of the Union, an update to the compilation of national control lists in force in the Member States.

Article 10

1. An authorisation shall be required for the export of dual-use items not listed in Annex I if another Member State imposes an authorisation requirement for the export of those items on the basis of a national control list of items adopted by that Member State pursuant to Article 9 and published by the Commission pursuant to Article 9(4), and 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 uses of concern with respect to public security, including the prevention of acts of terrorism, or to human rights considerations.

2. A Member State which refuses an authorisation required under paragraph 1 shall also inform the Commission and the other Member States of such decision.

3. A Member State which imposes an authorisation requirement pursuant to paragraph 1 of this Article on the export of a dual-use item not listed in Annex I, shall inform its customs authorities and other relevant national authorities about the authorisation requirement without delay and, where appropriate, provide the other Member States and the Commission with the relevant information, in particular concerning the items and end-users concerned. The other Member States shall give due consideration to that information and shall inform their customs authorities and other relevant national authorities thereof.

Article 11

1. An authorisation shall be required for intra-Union transfers of dual-use items listed in Annex IV. Dual-use items listed in Part 2 of Annex IV shall not be covered by a general authorisation.

2. A Member State may impose an authorisation requirement for the transfer of other dual-use items from its territory to another Member State in cases where at the time of transfer:

(a)the operator or the competent authority knows that the final destination of the items concerned is outside the customs territory of the Union;

(b)the export of those items to that final destination is subject to an authorisation requirement pursuant to Article 3, 4, 5, 9 or 10 in the Member State from which the items are to be transferred, and such export directly from its territory is not authorised by a general authorisation or a global authorisation; and

(c)no processing or working as defined in Article 60(2) of the Union Customs Code is to be performed on the items in the Member State to which they are to be transferred.

3. The transfer authorisation referred to in paragraphs 1 and 2 shall be applied for in the Member State from which the dual-use items are to be transferred.

4. In cases where the subsequent export of the dual-use items has already been accepted in the consultation procedures set out in Article 14 by the Member State from which the items are to be transferred, the transfer authorisation shall be issued to the operator immediately, unless the circumstances have substantially changed.

5. A Member State which adopts legislation imposing an authorisation requirement as referred to in paragraph 2 shall, without delay, inform the Commission and the other Member States of the measures it has taken. The Commission shall publish that information in the C series of the Official Journal of the European Union.

6. The application of measures taken pursuant to paragraphs 1 and 2 shall not involve the application of internal frontier controls within the customs territory of the Union, but solely controls which are performed as part of the normal control procedures applied in a non-discriminatory fashion throughout the customs territory of the Union.

7. The application of measures taken pursuant to paragraphs 1 and 2 shall not result in transfers from one Member State to another being subject to more restrictive conditions than those imposed for exports of the same items to third countries.

8. A Member State may, by national legislation, require that, for any intra-Union transfers from that Member State of items listed in Annex I, Category 5, Part 2, which are not listed in Annex IV, additional information concerning those items shall be provided to the competent authority of that Member State.

9. The relevant commercial documents relating to intra-Union transfers of dual-use items listed in Annex I shall indicate clearly that those items are subject to controls if exported from the customs territory of the Union. Such documents include, in particular, any sales contract, order confirmation, invoice or dispatch note.

CHAPTER III - EXPORT AUTHORISATION AND AUTHORISATION FOR BROKERING SERVICES AND TECHNICAL ASSISTANCE


Article 12

1. The following types of authorisations for export may be issued or are established under this Regulation:

(a)individual export authorisations;

(b)global export authorisations;

(c)national general export authorisations;

(d)Union general export authorisations for exports of certain items to certain destinations under specific conditions and requirements for use as set out in Sections A to H of Annex II.

Authorisations issued or established under this Regulation shall be valid throughout the customs territory of the Union.

2. Individual and global export authorisations under this Regulation shall be granted by the competent authority of the Member State where the exporter is resident or established.

Without prejudice to point (3) of Article 2, where the exporter is not resident or established on the customs territory of the Union, individual export authorisations shall be granted under this Regulation by the competent authority of the Member State where the dual-use items are located.

All individual and global export authorisations shall be issued, whenever possible, by electronic means on forms containing at least all the elements of and in the order provided for in the models set out in Section A of Annex III.

3. Individual export authorisations and global export authorisations shall be valid for up to two years, unless the competent authority decides otherwise.

Large project authorisations shall be valid for a duration to be determined by the competent authority, but no longer than four years, except in duly justified circumstances based on the duration of the project.

4. Exporters shall supply the competent authority with all relevant information required for their applications for individual and global export authorisations so as to provide complete information in particular about the end-user, the country of destination and the end-use of the item exported.

Individual export authorisations shall be subject to an end-use statement. The competent authority may exempt certain applications from the obligation of providing an end-use statement. Global export authorisations may be subject to an end-use statement if appropriate.

Exporters using global export authorisations shall implement an ICP, unless the competent authority considers it unnecessary due to other information it has taken into account when processing the application for a global export authorisation submitted by the exporter.

Reporting and ICP requirements relating to the use of global export authorisations shall be defined by Member States.

At the request of exporters, global export authorisations that contain quantitative limitations shall be split.

5. The competent authorities of the Member States shall process requests for individual or global authorisations within a period of time to be determined by national law or practice.

6. National general export authorisations shall:

(a)exclude from their scope items listed in Section I of Annex II;

(b)be defined by national law or practice; they may be used by all exporters, resident or established in the Member State that issues those authorisations, if they meet the requirements set in this Regulation and in the complementary national legislation; they shall be issued in accordance with the indications set out in Section C of Annex III;

(c)not be used 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 any of the uses referred to in Article 4(1), or if the exporter is aware that the items are intended for such uses.

National general export authorisations may also apply to items and destinations listed in Sections A to H of Annex II.

Member States shall notify the Commission immediately of any national general export authorisations issued or modified. The Commission shall publish such notifications in the C series of the Official Journal of the European Union.

7. The competent authority of the Member State where the exporter is resident or established may prohibit the exporter from using Union general export authorisations if there is reasonable suspicion about the exporter’s ability to comply with such authorisation or with a provision of the export control legislation.

The competent authorities of the Member States shall exchange information on exporters which are prohibited from using a Union general export authorisation, unless the competent authority of the Member State where the exporter is resident or established determines that the exporter will not attempt to export dual-use items through another Member State. The exchange of information shall be carried out using the electronic system referred to in Article 23(6).

Article 13

1. Authorisations for the provision of brokering services and technical assistance under this Regulation shall be granted by the competent authority of the Member State where the broker or the provider of technical assistance is resident or established. Where the broker or the provider of technical assistance is not resident or established on the customs territory of the Union, authorisations for the provision of brokering services and technical assistance under this Regulation shall be granted by the competent authority of the Member State from where the brokering services or technical assistance will be provided.

2. Authorisations for the provision of brokering services shall be granted for a set quantity of specific items and shall clearly identify the location of the items in the originating third country, the end-user and the exact location of the end-user.

Authorisations for technical assistance shall clearly identify the end-user and the exact location of the end-user.

The authorisations shall be valid throughout the customs territory of the Union.

3. Brokers and providers of technical assistance shall supply the competent authority with all relevant information required for their application for authorisation under this Regulation, in particular details of the location of the dual-use items, a clear description of the items and the quantity involved, third parties involved in the transaction, the country of destination, the end-user in that country and its exact location.

4. The competent authorities of the Member States shall process requests for authorisations for the provision of brokering services and technical assistance within a period of time to be determined by national law or practice.

5. All authorisations for the provision of brokering services and technical assistance shall be issued, whenever possible, by electronic means on forms containing at least all the elements of and in the order provided for in the models set out in Section B of Annex III.

Article 14

1. If the dual-use items in respect of which an application has been made for an individual export authorisation to a destination not listed in Part 2 of Section A of Annex II or to any destination in the case of dual-use items listed in Annex IV are or will be located in one or more Member States other than the one where the application has been made, that fact shall be indicated in the application. The competent authority of the Member State to which the application for authorisation has been made shall immediately consult the competent authorities of the Member States in question and provide the relevant information. That consultation may be carried out using the electronic system referred to in Article 23(6). The Member States consulted shall make known within 10 working days any objections they may have to the granting of such an authorisation, which shall bind the Member State in which the application has been made.

If no objections are received within 10 working days, the Member States consulted shall be regarded as having no objection.

In exceptional cases, any Member State consulted may request the extension of that 10-day period. However, the extension shall not exceed 30 working days.

2. If an export might prejudice its essential security interests, a Member State may request another Member State not to grant an export authorisation or, if such authorisation has been granted, request its annulment, suspension, modification or revocation. The Member State receiving such a request shall immediately engage in consultations of a non-binding nature with the requesting Member State, to be terminated within 10 working days. In the event that the Member State receiving the request decides to grant the authorisation, that Member State shall notify the Commission and the other Member States thereof using the electronic system referred to in Article 23(6).

Article 15

1. In deciding whether or not to grant an authorisation or to prohibit a transit under this Regulation, the Member States shall take into account all relevant considerations, including:

(a)Union and Member States’ international obligations and commitments, in particular the obligations and commitments they have each accepted as members of the relevant international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties;

(b)their obligations under sanctions imposed by a decision or a common position adopted by the Council or by a decision of the OSCE or by a binding resolution of the Security Council of the United Nations;

(c)considerations of national foreign and security policy, including those covered by Common Position 2008/944/CFSP;

(d)considerations about intended end-use and the risk of diversion.

2. In addition to the criteria set out in paragraph 1, when assessing an application for a global export authorisation, Member States shall take into consideration the implementation of an ICP by the exporter.

Article 16

1. The competent authority acting in accordance with this Regulation, may refuse to grant an export authorisation and may annul, suspend, modify or revoke an export authorisation which it has already granted. Where the competent authority refuses, annuls, suspends, substantially limits or revokes an export authorisation or when it has determined that the intended export is not to be authorised, it shall notify the competent authorities of the other Member States and the Commission thereof and share the relevant information with them. In case the competent authority of a Member State has suspended an export authorisation, the final assessment shall be communicated to the competent authorities of the other Member States and the Commission at the end of the period of suspension.

2. The competent authorities of the Member States shall review denials of authorisations notified under paragraph 1 within three years of their notification and revoke them, amend them or renew them. The competent authorities of the Member States shall notify the results of the review to the competent authorities of the other Member States and the Commission as soon as possible. Denials which are not revoked shall remain valid and shall be reviewed every three years. At the third review, the Member State concerned shall be required to explain the reasoning for maintaining such denial.

3. The competent authority shall notify the competent authorities of the other Member States and the Commission of their decisions to prohibit a transit of dual-use items taken under Article 7 without delay. These notifications shall contain all relevant information including the classification of the item, its technical parameters, the country of destination and the end-user.

4. Paragraphs 1 and 2 of this Article shall also apply to authorisations for the provision of brokering services and technical assistance referred to in Article 13.

5. Before the competent authority of a Member State decides whether or not to grant an authorisation or to prohibit a transit under this Regulation, it shall examine all valid denials or decisions to prohibit a transit of dual-use items listed in Annex I taken under this Regulation to ascertain whether an authorisation or a transit has been denied by the competent authorities of another Member State for an essentially identical transaction. It shall then consult the competent authorities of the Member States which issued such denials or decisions to prohibit the transit as provided for in paragraphs 1, 3 and 4 of this Article.

The competent authorities of the Member States consulted shall make known within 10 working days whether or not they consider the transaction in question to be an essentially identical transaction. If no reaction has been received within 10 working days, the competent authorities of the Member States consulted shall be regarded as not considering the transaction in question to be an essentially identical transaction.

If more information is required to correctly evaluate the transaction in question, the competent authorities of the Member States concerned shall agree on the extension of that 10-day period. However, the extension shall not exceed 30 working days.

If, following such consultation, the competent authority decides to grant an authorisation or allow the transit, it shall notify the competent authorities of the other Member States and the Commission, providing all relevant information to explain the decision.

6. All notifications required pursuant to this Article shall be made via secure electronic means, including through the system referred to in Article 23(6).

7. All information shared pursuant to this Article shall be in compliance with Article 23(5) concerning the confidentiality of such information.

CHAPTER IV - AMENDMENT OF LISTS OF DUAL-USE ITEMS AND DESTINATIONS


Article 17

1. The Commission is empowered to adopt delegated acts in accordance with Article 18 in order to amend the list of dual-use items set out in Annexes I and IV, as follows:

(a)the list of dual-use items set out in Annex I shall be amended in conformity with the relevant obligations and commitments, and any amendment thereof, that Member States and, where applicable, the Union have accepted as members of the international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties;

(b)where the amendment of Annex I concerns dual-use items which are also listed in Annex II or IV, those Annexes shall be amended accordingly.

2. The Commission is empowered to adopt delegated acts in accordance with Article 18 in order to amend Annex II by removing items and by adding or removing destinations from the scope of Union general export authorisations in consultation with the Dual-Use Coordination Group set up pursuant to Article 24 and taking into consideration obligations and commitments under the relevant non-proliferation regimes and export control arrangements, such as amendments to control lists, as well as relevant geopolitical developments. Where imperative grounds of urgency require a removal of particular destinations from the scope of a Union general export authorisation, the procedure provided for in Article 19 shall apply to delegated acts adopted pursuant to this paragraph.

Article 18

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 17 shall be conferred on the Commission for a period of five years from 9 September 2021. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3. The delegation of power referred to in Article 17 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6. A delegated act adopted pursuant to Article 17 shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 19

1. Delegated acts adopted under this Article shall enter into force without delay and shall apply as long as no objection is expressed in accordance with paragraph 2. The notification of a delegated act to the European Parliament and to the Council shall state the reasons for the use of the urgency procedure.

2. Either the European Parliament or the Council may object to a delegated act in accordance with the procedure referred to in Article 18(6). In such a case, the Commission shall repeal the act immediately following the notification of the decision to object by the European Parliament or by the Council.

Article 20

The list of dual-use items set out in Annex IV, which is a subset of Annex I, shall be updated having regard to Article 36 TFEU, namely the public policy and public security interests of the Member States.

CHAPTER V - CUSTOMS PROCEDURES


Article 21

1. When completing the formalities for the export of dual-use items at the customs office responsible for handling the export declaration, the exporter shall furnish proof that any necessary export authorisation has been obtained.

2. A translation of any documents furnished as proof into an official language of the Member State where the export declaration is presented may be required of the exporter.

3. Without prejudice to any powers conferred on it under, and pursuant to, the Union Customs Code, a Member State may also, for a period not exceeding the periods referred to in paragraph 4, suspend the process of export from its territory, or, if necessary, otherwise prevent the dual-use items which are or are not covered by a valid export authorisation from leaving the Union via its territory, where it has:

(a)grounds for suspicion that:

(i)relevant information was not taken into account when the authorisation was granted; or

(ii)circumstances have materially changed since the grant of the authorisation; or

(b)relevant information regarding the potential application of measures under Article 4(1).

4. In the cases referred to in paragraph 3 of this Article, the Member State referred to in that paragraph shall consult the competent authority of the Member State which granted the export authorisation or which may take action pursuant to Article 4(1) without delay in order that the competent authority may take action pursuant to Article 4(1) or Article 16(1). If that competent authority decides to maintain the authorisation or not to take action pursuant to Article 4(1), it shall reply within 10 working days, which, at its request, may be extended to 30 working days in exceptional circumstances. In such case, or if no reply is received within 10 or 30 working days, as the case may be, the dual-use items shall be released immediately. The competent authority of the Member State which granted the authorisation shall inform the competent authorities of the other Member States and the Commission.

5. The Commission, in cooperation with the Member States, may develop guidance to support interagency cooperation between licensing and customs authorities.

Article 22

1. Member States may provide that customs formalities for the export of dual-use items may be completed only at customs offices empowered to that end.

2. Member States availing themselves of the option set out in paragraph 1 shall inform the Commission of the duly empowered customs offices. The Commission shall publish the information in the C series of the Official Journal of the European Union.

CHAPTER VI - ADMINISTRATIVE COOPERATION, IMPLEMENTATION AND ENFORCEMENT


Article 23

1. Member States shall inform the Commission without delay of the laws, regulations and administrative provisions adopted in implementation of this Regulation, including:

(a)a list of the competent authorities of the Member States empowered to:

—grant export authorisations for dual-use items,

—grant authorisations under this Regulation for the provision of brokering services and technical assistance,

—prohibit the transit of non-Union dual-use items under this Regulation;

(b)the measures referred to in Article 25(1).

The Commission shall forward the information to the other Member States and shall publish the information in the C series of the Official Journal of the European Union.

2. Member States, in cooperation with the Commission, shall take all appropriate measures to establish direct cooperation and exchange of information between the competent authorities with a view to enhance the efficiency of the Union export control regime and to ensure the consistent and effective implementation and enforcement of control throughout the customs territory of the Union. The information exchange may include:

(a)relevant licensing data, provided for each authorisation issued (e.g. value and types of licence and related destinations, number of users of general authorisations);

(b)additional information regarding the application of controls, including information on the application of criteria set out in Article 15(1), the number of operators with an ICP and, where available, data on exports of dual-use items carried out in other Member States;

(c)information regarding the analysis underlying additions or planned additions to national control lists pursuant to Article 9;

(d)information regarding the enforcement of controls, including risk-based audits, details of exporters deprived of the right to use the national or Union general export authorisations, and, where available, number of violations, seizures and application of other penalties;

(e)data on sensitive end-users, actors involved in suspicious procurement activities, and, where available, routes taken.

3. The exchange of licensing data shall take place at least annually in accordance with guidelines to be drawn up by the Dual-Use Coordination Group established pursuant to Article 24 and with due consideration to legal requirements concerning the protection of personal information, commercially sensitive information or protected defence, foreign policy or national security information.

4. Member States and the Commission shall regularly examine the implementation of Article 15 based on information submitted pursuant to this Regulation and analyses of such data. All participants of these exchanges shall respect the confidentiality of the discussions.

5. Council Regulation (EC) No 515/97 (14), and in particular its provisions on the confidentiality of information, shall apply mutatis mutandis.

6. A secure and encrypted system shall be developed by the Commission, in consultation with the Dual-Use Coordination Group set up pursuant to Article 24, to support direct cooperation and exchange of information between the competent authorities of the Member States and, where appropriate, the Commission. The system shall, where feasible, be connected by the Commission to the electronic licensing systems of the competent authorities of the Member States to the extent necessary for the purpose of facilitating this direct cooperation and exchange of information. The European Parliament shall be informed about the system’s budget, development and functioning.

7. The processing of personal data shall be in accordance with the rules laid down in Regulations (EU) 2016/679 and (EU) 2018/1725.

Article 24

1. A Dual-Use Coordination Group chaired by a representative of the Commission shall be set up. Each Member State shall appoint a representative to this Group. It shall examine any question concerning the application of this Regulation which may be raised either by the chair or by a representative of a Member State.

2. The Dual-Use Coordination Group shall, whenever it considers it to be necessary, consult exporters, brokers, providers of technical assistance and other relevant stakeholders concerned by this Regulation.

3. The Dual-Use Coordination Group shall, where appropriate, set up technical expert groups composed of experts from Member States to examine specific issues relating to the implementation of controls, including issues relating to the updating of the Union control lists set out in Annex I. Technical expert groups shall, where appropriate, consult exporters, brokers, providers of technical assistance and other relevant stakeholders concerned by this Regulation.

4. The Commission shall support a Union licensing and enforcement capacity-building programme, including by developing, in consultation with the Dual-Use Coordination Group, common training programmes for officials of the Member States.

Article 25

1. Each Member State shall take appropriate measures to ensure the proper enforcement of this Regulation. In particular, it shall lay down the penalties applicable to infringements of the provisions of this Regulation or of those adopted for its implementation. Those penalties shall be effective, proportionate and dissuasive.

2. The Dual-Use Coordination Group shall set up an enforcement coordination mechanism to support exchange of information and direct cooperation between competent authorities and enforcement agencies of the Member States (the ‘Enforcement Coordination Mechanism’). Under the Enforcement Coordination Mechanism, the Member States and the Commission shall exchange relevant information, where available, including on the application, nature and effect of the measures, taken under paragraph 1, on enforcement of best practices and unauthorised exports of dual-use items and/or infringements of this Regulation and/or relevant national legislation.

Under the Enforcement Coordination Mechanism, the Member States and the Commission shall also exchange information on best practices of national enforcement authorities regarding risk-based audits, the detection and prosecution of unauthorised exports of dual-use items and/or possible other infringements of this Regulation and/or relevant national legislation.

Exchange of information under the Enforcement Coordination Mechanism shall be confidential.

CHAPTER VII - TRANSPARENCY, OUTREACH, MONITORING, EVALUATION


Article 26

1. The Commission and the Council shall, where appropriate, make available guidelines and/or recommendations for best practices for the subjects referred to in this Regulation to ensure the efficiency of the Union export control regime and the consistency of its implementation. The provision of guidelines and/or recommendations for best practices to exporters, brokers and providers of technical assistance shall be the responsibility of the Member States where they are resident or established. In those guidelines and/or recommendations for best practices, the information needs of SMEs in particular shall be taken into account.

2. The Commission shall, in consultation with the Dual-Use Coordination Group, submit an annual report to the European Parliament and the Council on the implementation of this Regulation, and on the activities, examinations and consultations of the Dual-Use Coordination Group. That annual report shall be public.

The annual report shall include information on authorisations (in particular number and value by types of items and by destinations at Union and Member State levels), denials and prohibitions under this Regulation. The annual report shall also include information on the administration (in particular staffing, compliance and outreach activities, dedicated licensing or classification tools), and enforcement of controls (in particular the number of infringements and penalties).

With regard to cyber-surveillance items, the annual report shall include dedicated information on authorisations, in particular on the number of applications received by item, the issuing Member State and the destinations concerned by those applications, and on the decisions taken on those applications.

The information contained in the annual report shall be presented in accordance with the principles set out in paragraph 3.

The Commission and the Council shall make available guidelines on the methodology for data gathering and processing for the preparation of the annual report, including the determination of the types of items and the availability of enforcement data.

3. Member States shall provide to the Commission all appropriate information for the preparation of the report with due consideration given to legal requirements concerning the protection of personal information, commercially sensitive information or protected defence, foreign policy or national security information. Regulation (EC) No 223/2009 of the European Parliament and of the Council (15) on European statistics applies to information exchanged or published under this Article.

4. Between 10 September 2026 and 10 September 2028, the Commission shall carry out an evaluation of this Regulation and report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. After 10 September 2024, the Commission shall carry out an evaluation of Article 5 and report on the main findings to the European Parliament, the Council and the European Economic and Social Committee.

CHAPTER VIII - CONTROL MEASURES


Article 27

1. Exporters of dual-use items shall keep detailed registers or records of their exports, in accordance with the national law or practice in force in the Member State concerned. Such registers or records shall include in particular commercial documents such as invoices, manifests and transport and other dispatch documents containing sufficient information to allow the following to be identified:

(a)a description of the dual-use items;

(b)the quantity of the dual-use items;

(c)the name and address of the exporter and of the consignee;

(d)where known, the end-use and end-user of the dual-use items.

2. In accordance with national law or practice in force in the Member State concerned, brokers and providers of technical assistance shall keep registers or records for brokering services or technical assistance so as to be able to prove, on request, the description of the dual-use items that were the subject of brokering services or technical assistance, the period during which the items were the subject of such services, the destination of such items and services, and the countries concerned by those services.

3. The registers or records and the documents referred to in paragraphs 1 and 2 shall be kept for at least five years from the end of the calendar year in which the export took place or the brokering services or technical assistance were provided. They shall be produced, on request, to the competent authority.

4. Documents and records of intra-Union transfers of dual-use items listed in Annex I shall be kept for at least three years from the end of the calendar year in which a transfer took place and shall be produced, on request, to the competent authority of the Member State from which these items were transferred.

Article 28

In order to ensure that this Regulation is properly applied, each Member State shall take all necessary measures to permit its competent authorities:

(a)to gather information on any order or transaction involving dual-use items;

(b)to establish whether the export control measures are being properly applied, which may include in particular the power to enter the premises of persons with an interest in an export transaction or brokers involved in the provision of brokering services under circumstances set out in Article 6, or providers of technical assistance under the circumstances set out in Article 8.

CHAPTER IX - COOPERATION WITH THIRD COUNTRIES


Article 29

1. The Commission and the Member States shall, where appropriate, maintain dialogues with third countries, with a view to promoting the global convergence of controls.

The dialogues may support regular and reciprocal cooperation with third countries, including exchange of information and best practices, as well as capacity-building and outreach to third countries. The dialogues may also encourage the adherence of third countries to robust export controls developed by multilateral export control regimes as a model for international best practice.

2. Without prejudice to the provisions on mutual administrative assistance agreements or protocols in customs matters concluded between the Union and third countries, the Council may authorise the Commission to negotiate with third countries on agreements providing for the mutual recognition of export controls of dual-use items covered by this Regulation.

Those negotiations shall be conducted in accordance with the procedures established in Article 207(3) TFEU and in the Treaty establishing the European Atomic Energy Community, as appropriate.

CHAPTER X - FINAL PROVISIONS


Article 30

This Regulation applies without prejudice to the Commission Delegated Decision of 15 September 2015 supplementing Decision No 1104/2011/EU.

Article 31

Regulation (EC) No 428/2009 is repealed.

However, for authorisation applications made before 9 September 2021, the relevant provisions of Regulation (EC) No 428/2009 shall continue to apply.

References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex VI.

Article 32

This Regulation shall enter into force on the ninetieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.