This month, the European Union formally adopted a new set of regulations that will govern the export of certain dual-use items. This marks one of the most significant changes to the bloc's export control mechanisms in a decade and will mean exporters of these goods need to familiarize themselves with stricter rules.
The regulations follow on from earlier legislation that requires the EU to reform its policies with a greater focus on human rights. The text was finalized in November of 2020 and approved by the European Parliament on March 26th 2021, before being adopted on May 10th.
Speaking at the passage of the regulations, EU rapporteur Markéta Gregorová described the reforms as a "win for human rights", noting it gives the EU full transparency on the export of key items that may be used by authoritarian regimes elsewhere in the world.
"We still do not have a level playing field among EU countries, but several new provisions allow for autonomous controls, better enforcement and coordination. I expect that member states' obligation to uphold human rights and their own security will be the foundation of further work ahead," she continued.
What do the new rules say?
The regulations govern the export of dual-use items - those that may have both civilian and military applications. They introduce new export controls on goods related to cyber and biometric surveillance that may be used in violation of human rights outside the EU.
Among the categories of dual-use goods that are now covered by the regulations are tools such as facial recognition software.
While it does not add specific items to the Dual-Use Control List of Annex I, it creates a 'catch-all' prohibition of any unlicensed export of cyber-surveillance items if the exporter has been informed that they are wholly or partly intended for use in activities that violate international human rights laws, regardless of whether or not the items are listed.
It also brings in a new coordination mechanism that should make it easier for EU member states to exchange information concerning the export of cyber surveillance items and new public reporting rules to further boost transparency.
What will exporters need to be aware of?
The rules will require exporters of such goods to conduct thorough due diligence to determine the intended uses of their items. If these activities highlight the potential for the abuse of human rights, exporters must notify their competent authority - usually the export licensing authority of the relevant EU member state. These bodies will then decide whether or not to make the export subject to an authorization requirement.
These due diligence processes will be expected to follow guidance to be set out by the European Commission and the Council of the European Union, as well as by individual member states, which will also be able to impose their own additional export license requirements for cyber surveillance items not on the Dual-Use Control List.
It also sets out new regulations regarding technical assistance for any goods on the Dual-Use List, which will harmonize rules that were previously the domain of individual member states.
Provisions of technical assistance for listed dual-use goods will now be subject to notification requirements if they are related to weapons of mass destruction, intended for a military end-use in embargoed countries or in relation to goods exported from the EU without the proper authorization.
The new regulations also seek to simplify some activities required by exporters. For example, a new EU-wide general license will be available for intra-group transfers of technology, as well as for exports of dual-use items and software that uses encryption.
Bernd Lange, head of the EU's negotiating delegation, said the new rules will ensure that respect for human rights is now a standard part of the bloc's export controls.
"It is an EU milestone, as export rules for surveillance technologies have been agreed for the first time," he stated, adding: "Economic interests must not take precedence over human rights."
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