Updates on the 2019 Dual-Use Control List and the modernization of the Dual-Use Regulation

On 17 October 2019, the European Commission updated the dual-use export control list in Annex 1 to Regulation 428/2009 (‘Dual-Use Regulation’). The updated list will come into force in approximately two months, provided that the Council and European Parliament raise no objections. The main changes will be described below.

The majority of the changes to the updated list result from amendments agreed at the Wassenaar Arrangement and Missile Technology Control Regime. These include:

  • New entries for certain microwave transistors, signal generators, software designed to restore operation of microcomputers/microprocessors, masks and reticles designed for optical sensors, and air-launch platforms for space launch vehicles.
  • Amendments concerning gear machine tool, digital-to-analogue converter, multi-layer mask control, cryptographic activation token, certain hydrophones, underwater submersible vehicles.
  • Deletion of technology for gas turbine engine components.

Other changes include new decontrol notes concerning “information security items” for civil industry application, certain lasers and open-cell foam (materials absorbing electromagnetic wave), as well as editorial changes.

The European Commission has published a detailed overview of the changes, which can be found here 

As regards the modernization of the Dual-Use Regulation, the European Commission, European Parliament and Council officially began the trilogue process, with the first trilogue discussion on 21 October 2019 already behind us.

Back in 2016, the European Commission published its proposal for the recast of the regulation. It particularly focused on:

  • Introducing a “human security dimension” in export control, requiring human rights and terrorism to be taken into account for authorisations and]catch-all controls,
  • Introducing definition of cyber-surveillance technology and category for certain cyber-surveillance technologies subject to controls,
  • Introducing new Union General Export Authorisations for encryption, low-value shipments, intra-company technology transfers and ‘other dual-use’ items, a new authorization for large projects, and general authorisation for intra-EU transfers,
  • New ICP requirement for global authorisations,
  • Strengthening controls on technology transfers, technical assistance, brokering, and transit,
  • Convergence of catch-all controls and enhanced cooperation between the Member States and the European Commission.

In January 2018, the European Parliament published its report on the proposal. The European Parliament’s proposed amendments generally support and expand the Commission’s proposal, and mainly focus on stricter controls, especially concerning human rights and cyber-surveillance, and reducing the administrative burden, particularly for SME’s. In June 2019, the Council published its amendments to the Commission’s proposal, largely rejecting a number of the key elements in the Commission’s proposals, including elements concerning cyber-surveillance technology, and maintaining much of the current text.

The European Commission, the European Parliament and the Council in the trilogue process have to seek if they can find an agreement on the text of the recast. The discussions will mainly concern cyber-surveillance technology, human rights, definition of key concepts and information sharing/cooperation. While they agree on the need to consider these issues, there are still significant differences in their respective positions. It was, however, reported that the first trilogue was constructive, with all parties stressing their willingness to reach an agreement. It is not clear when a conclusion to the trilogue can be expected, but reportedly the plan is that the new recast will be adopted in 2020.