EU Dual-Use Regulation

The Commission adopted its legislative proposal to modernize the EU’s export controls on sensitive dual-use goods and technologies in September 2016. A revision of the 2009 regulation had become necessary to take into account technological developments, new security risks, and emerging technologies. After several years of trilogue negotiations, the Commission, the European Parliament, and the Council finally reached an agreement on a new text for the regulation in November 2020. 

The new regulation incorporates numerous proposals from the Commission aimed at comprehensively improving the system. It is intended to make the EU's existing export control system more effective through the following measures:

• Introducing a new dimension of “human security” to enable the EU to respond to the challenges posed by new dual-use technologies—in particular, cyber-surveillance technologies—that pose a risk to national and international security; this also includes the protection of human rights;
• Updates to key terms and definitions (such as the definition of the term “exporter,” which now also includes individuals and researchers involved in the transfer of dual-use technology);
• Simplifying and harmonizing authorization procedures, as well as enabling the Commission to amend the list of goods or destinations subject to specific forms of control through a “simplified” procedure—that is, delegated acts—thereby making the export control system more flexible and better able to evolve and adapt to changing circumstances;
• Improving the exchange of information between the authorizing authorities and the Commission to ensure more transparent authorization decisions;
• Coordinating and supporting robust enforcement of controls, including improving the secure electronic exchange of information between licensing and enforcement authorities;
• Development of an EU capacity-building and training program for the Member States' licensing and enforcement authorities;
• Providing targeted information to industry and ensuring transparency toward stakeholders in order to build structured relationships with the private sector through specific stakeholder consultations conducted by the relevant Commission working group or experts from the Member States;
• Strengthening dialogue with third countries and working to ensure a level playing field at the global level.

The new framework enables the EU to take important steps to pool expertise and address specific challenges, particularly in the context of cyber surveillance (guidelines on due diligence are still being developed in this regard), but also with regard to emerging dual-use technologies in fields such as biotechnology, artificial intelligence, and advanced computing systems.

The regulation ensures greater transparency by increasing the level of consultation and reporting between the member states and the Commission and by promoting the development of a new EU platform for electronic authorization, which has already been tested in four EU member states.

It also provides a legal basis for EU actions at the multilateral, plurilateral, and bilateral levels — recognizing that the effectiveness of controls depends on the cooperation of the largest technology manufacturers — and builds on the existing multilateral framework for export controls, the Wassenaar Arrangement, which forms the basis for many of the restrictions introduced by the regulation at the EU level.

In addition, the European Commission has also published further information on the entry into force of the EU Dual-Use Regulation, which you can access here.

Further information:
Full press release
Text of the EU Dual-Use Regulation (Regulation (EU) 2021/821)
Memo – Implementation of the Regulation
European Commission information page: Control of trade in dual-use items
Agreement on New Rules for Trade in Dual-Use Items (Press Release, November 9, 2020)
EU Council Press Release: Agreement on New Rules for Trade in Dual-Use Items
EU Commission press release
European Parliament press release
Website on controls on trade in dual-use items

On September 8, 2021, the European Commission’s Directorate-General (TAXUD) published new codes for declaring dual-use goods in accordance with the new Dual-Use Regulation. The new codes are necessary to reflect the new legal framework. However, it will still take some time before they are implemented in ATLAS. Until further notice, therefore, the old codes should be used. The ITZ Bund has summarized the new codes in itsATLAS – Info 0218/21.

On September 9, 2021, the new EU Dual-Use Regulation (EU) 2021/821entered into force. The regulation modernizes the existing rules governing the control of exports, trade and brokering activities, technical assistance, transit, and transfers of dual-use items.

The key changes include, among other things, new licensing requirements for the export of certain digital surveillance goods if they are intended to be used in the recipient country for serious human rights violations [see Art. 5 of Regulation (EU) 2021/821].

In addition, new regulations have been introduced regarding technical assistance in connection with Annex I goods [see Art. 8 of Regulation (EU) 2021/821]. The EU regulation is supplemented in Germany by the national provisions in §§ 49 et seq. of the AWV, which already contained provisions regarding technical assistance. Further changes include stricter controls on brokering activities [see Art. 6 of Regulation (EU) 2021/821] and transit [see Art. 7 of Regulation (EU) 2021/821].

In addition, two new General Authorizations are being introduced: EU007 authorizes the intra-group transfer of software and technology for commercial product development. EU008 concerns the export of encryption goods. Iceland is also being added to EU001 as a privileged recipient country.

To mark the entry into force of the EU Dual-Use Regulation, the Federal Office for Economic Affairs and Export Control has also published two new fact sheets:

• The New EU Dual-Use Regulation (Regulation (EU) 2021/821)
• Fact Sheet on Article 5 of the New EU Dual-Use Regulation (Regulation (EU) 2021/821) 

For export applications submitted before September 9, 2021, the relevant provisions of the former Regulation (EC) No. 428/2009 continue to apply [see Art. 31 of Regulation (EU) 2021/821].
This means that, in principle, these export applications will still be decided on the basis of the old Regulation (EC) No. 428/2009 even if the decision to grant the authorization is made after Regulation (EU) 2021/821 enters into force.

Export licenses issued prior to September 9, 2021, as well as information regarding the list of goods, remain valid. It is not necessary to submit a new application. Similarly, registrations for EU001–006 remain valid. Furthermore, it is not necessary to appoint a new export control officer. The relevant AV notices will be updated [publication in the BAnz to follow]. The notices regarding end-use declarations have already been updated [BAnz AT September 1, 2021, B6, B7]. These updates do not involve any changes to the content.

In the run-up to the entry into force of the Dual-Use Regulation, further amendments were made at the national level to the Foreign Trade Act (AWG) and the Foreign Trade Regulation (AWV). On August 25, 2021, the Federal Cabinet approved the regulation amending the Foreign Trade Act and the Foreign Trade Regulation, which had been submitted by Federal Minister of Economics Altmaier.

The First Ordinance Amending the Foreign Trade Act and the Foreign Trade Ordinance (1st AWG/AWV Amendment Ordinance) of August 25, 2021 (BAnz AT September 7, 2021, V1), references in the Foreign Trade Regulation (AWV) and the Foreign Trade Act (AWG) to the previously applicable Regulation (EC) No. 428/2009 are replaced by references to the new EU Dual-Use Regulation. In addition, the First AWG/AWV Amendment Ordinance contains provisions to treat Northern Ireland as part of the European Union for the purposes of applying licensing requirements. For reasons of legal clarity and legal certainty, the procedural provisions governing the export of goods are also clarified.

The changes took effect on September 9, 2021.

As an EU member state, Austria is subject to various licensing, reporting, and notification requirements. For example, a license from the BMDW (Federal Ministry for Digital and Economic Affairs) is required for listed dual-use goods, and in some cases, this requirement also applies to intra-Community transfers.

The competent authority is theFederal Ministry for Digitalization and Business Location (BMDW), Department III/2 – Export Control

Email:post.III2_19@bmdw.gv.atorexportkontrolle@bmdw.gv.at
Phone: 01/711 00-0

Further information:
Information from the Austrian Chamber of Commerce