Dual-use items concern a variety of goods, software and technology that can be used for both civilian and military purposes and whose export from the EU is controlled. The relevant provisions for the control of such items are currently laid down in the Dual-use Regulation 428/2009. These rules are being comprehensively revised and adapted.

1. Update of the annexes to the Dual-use Regulation in 2020

With effect from 15 December 2020, the annexes to the Dual-use Regulation 428/2009 have been replaced. The text of Delegated Regulation (EU) 2020/1749, published in the Official Journal of the EU on 14 December 2020, can be found here. The Commission has published the changes to the list of controlled items resulting from the update here and here.

2. General Export Authorisations relating to the Brexit

Against the background of Brexit Annex II a) of the Dual-use Regulation 428/2009 (concerning General Export Authorisations) has been further amended by Regulation (EU) 2020/2171 dated 16 December 2020 which entered into force on 22 December 2020 and applies from 1 January 2021. General Export Authorisation EU001 was extended to include Great Britain (England, Scotland, Wales). Regulation (EU) 2020/2171 can be found  at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32020R2171&from=DE. Shipments of dual-us items from the EU to Northern Ireland, and vice versa, are treated as intra EU-transfers. 
Independently of this, the German national General Export Authorisation 15 (for cases that will not benefit from EU001, in particular to enable economic operators to fulfil contracts concluded before 31 December 2020) will be applicable at the beginning of 2021. A preliminary version is currently published in German on the websites of the German Federal Office for Economic Affairs and Energy (BAFA) https://www.bafa.de/SharedDocs/Downloads/DE/Aussenwirtschaft/afk_genehmigungsarten_agg_agg15.html, which is still being adapted. The final version of General Export Authorization 15 is to be published before 1 January 2021. In addition, intra-EU transfer licences issued before the end of transition period will be reinterpreted as export licences (a preliminary version of such notice has been published in German on BAFA’s website.

3. New Dual-use Regulation in 2021

An important change is to be expected in 2021. Probably in the 3rd quarter of 2021, according to an estimate made by BAFA at the 12th (virtual) Export Control Information Day on 10 December 2020, a new, revised Dual-use Regulation will enter into force and replace the Dual-use Regulation 428/2009, which dates from 2009. A German version has not yet been published, the English language version can be found at: https://data.consilium.europa.eu/doc/document/ST-12798-2020-INIT/en/pdf. 

The preliminary political agreement on the text of the regulation was reached on 9 November 2020 by the EU Commission, the European Parliament and the Council. Negotiations on the new dual-use regulation had previously lasted over four years, with the Commission having published its proposal for a regulation back in September 2016. Since October 2019, the EU Commission, the European Parliament and the Council have been negotiating in the so-called trilogue. The negotiations ended on 9 November 2020 with the preliminary political agreement. Formally, the agreement still has to be approved by the European Parliament and the Council. After the political agreement, however, it is assumed that there will be no more changes to the content of the current text. 

The regulation will bring about the following major changes:

• Stricter control requirements by way of a catch-all clause for exports of non-listed cyber-surveillance items if the exporter has been informed is aware that such are or may be intended for use in connection with internal repression and/or serious human rights violations. The Commission intends to issue further guidance on this in due course.
• Updating and clarification of key terms and definitions (e.g. the term "exporter", which in future should also include persons who make software or dual-use technology available to third parties outside the customs territory of the EU); 
• Possibility for EU Member States to provide for export controls in certain cases on the basis of legislation adopted by another Member State by informing the exporter on a case-by-case basis that the export is subject to an authorisation;
• Provisions on the supply of technical assistance (transfer of intangible knowledge and manual services, e.g. repair, in relation to listed goods) with respect to listed sensitive dual-use items; 
• Creation of two new general export authorizations: for the intra-group export of software and technology to subsidiaries and sister companies for certain items to certain destination countries (EU007) and for encryption items (EU008), whereby the use of the German national General Export Authorization 16 (telecommunications and information security) will still be possible; 
• Creation of a special large project authorization (a specific case of a global export licence) for exports for the purpose of large scale projects, whereby the term "large scale projects" is not defined - but it should cover projects over a period of approximately four or more years; 
• Improving the exchange of information between national licensing authorities and the Commission (enforcement coordination mechanism).

Marian Niestedt, Lawyer
Hamburg