Dual Use Items: A Whole New Export Regulation in the European Union

Abstract

On 9 September 2021, Regulation (EU) no. 821/2021, of the European Parliament and of the Council, of 20 May 2021, relating to the control of exports, brokering, technical assistance, transit and transfer of dual-use items, i.e., all those products, including software and technologies, which can be used for both civil and military purposes, came into effect. The new Regulation has as its main objective (see in particular ‘Whereas (5)’ in the preamble to the Regulation) that of making the common system for the control of exports of dual-use items even more effective, to ensure compliance with the commitments and responsibilities of the Member States and of the Union, particularly in the fields of non-proliferation, regional peace, security and stability and respect for human rights and international humanitarian law. For these purposes, the definitions of ‘dual-use products’ and ‘exporter’ have been expanded and, moreover, a specific Article (8) is dedicated to the issue of technical assistance, which in the previous Regulation (428/2009) was covered exclusively in certain explanatory notes in the Annexes. The changes in this Regulation also concern the authorizations for the export from the European Union of ‘dual-use’ goods: a whole new ‘large project authorization’ (Article 2 (14) of the Regulation) has been created, which consists of an individual export authorization or a global export authorization granted to one specific exporter for a type or category of dual-use items, which may be valid for exports to one or more specific end-users in one or more specified third countries for the purpose of a specified large-scale project. This permission can relate to intra-group technology transfers and cryptography. Also with regard to the procedures for the export of dual-use items, the European Union decided to make use of the ‘Internal Compliance Programmes’, already present in other legislative sectors of the Union. Dual use export controls, authorizations, civil, military, technologies, compliance, exportation, controls, Regulation