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The European Union Export Control Regime: Comment of the Legislation: Article-By-Article

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The European Union Export Control Regime: Comment of the Legislation: Article-By-Article The European Union Export Control Regime: Comment of the Legislation: article-by-article Pr. Dr. Quentin MICHEL March 2011 Please do not hesitate to send any comments, remarks, and questions on the present document to [email protected] European Studies - Political Science Department Faculty of Law and Political Science - Liege University - Belgium Part I: The European Union Export Control Regime of Dual-Use Items Introductive Remark: to facilitate the understandings of the EU export control regime of dual- use items and technology, we have in the present Part mixed together the two Council decisions which constitute the EU regime: - Council Regulation (EC) No 428/2009 (in black in the present text), - Council Joint Action 2000/401/CFSP (in red in the present text). It should be kept in mind that the legal value of both documents is rather different. The Joint Action is an inter-governmental cooperation instrument set up by the Treaty on European Union (EU Treaty). To enter into force, it has to be transcribed by Member States into their national legislation. The Council Regulation is European Community legislation instituted by the Treaty establishing the European Community (EC Treaty) and is therefore directly applicable. Important Remark: The Dual-Use Council Regulation (EC) No 1334/2000 has been largely amended (recasted) by the Council Regulation (EC) No 428/2009, thus in order to simplify the recognition of articles which have been amended we have coloured in grey provisions added or modified by the new regulation the present text. Page 2 of 239 Preamble Text of Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items Official Journal L 134, 29/05/2009 P. 0001 - 0269 Council Joint Action of 22 June 2000 (2000/0401/CFSP) concerning the control of technical assistance related to certain military end- uses Official Journal L 159, 30/06/2000 P. 0216 - 0217 THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof, Complementary information: Article 133 “1. The common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. 2. The Commission shall submit proposals to the Council for implementing the common commercial policy. 3. Where agreements with one or more States or international organisations need to be negotiated, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Community policies and rules. The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee on the progress of negotiations. The relevant provisions of Article 300 shall apply. 4. In exercising the powers conferred upon it by this Article, the Council shall act by a qualified majority. 5. Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6. By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules. Page 3 of 239 Preamble The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement insofar as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6. This paragraph shall not affect the right of the Member States to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements. 6. An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community's internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation. In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. The Community and the Member States shall conclude agreements thus negotiated jointly. The negotiation and conclusion of international agreements in the field of transport shall continue to be governed by the provisions of Title V and Article 300. 7. Without prejudice to the first subparagraph of paragraph 6, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on intellectual property in so far as they are not covered by paragraph 5.” Complementary information: When the Lisbon Treaty will enter into force Article 133 will be replaced and moved to Article 207. Provisions concerning the export policy will be slightly changed, notably any amendment to the regulation will have to be adopted by ordinary procedure. In comparison with the present procedure, it extends the role of the European Parliament who will have to approve and not only being consulted, as it was the case previously. Page 4 of 239 Preamble Having regard to the proposal from the Commission, Whereas: (1) Council Regulation (EC) No 1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual-use items and technology1 has been significantly amended on several occasions. Since further amendments are to be made, it should be recast in the interests of clarity. (2) Dual-use items (including software and technology) should be subject to effective control when they are exported from the European Community. (3) An effective common system of export controls on dual-use items is necessary to ensure that the international commitments and responsibilities of the Member States, especially regarding non-proliferation, and of the European Union (EU), are complied with. (4) The existence of a common control system and harmonised policies for enforcement and monitoring in all Member States is a prerequisite for establishing the free movement of dual-use items inside the Community. (5) The responsibility for deciding on individual, global or national general export authorisations, on authorisations for brokering services, on transits of non-Community dual-use items or on authorisations for the transfer within the Community of the dual-use items listed in Annex IV lies with national authorities. National provisions and decisions affecting exports of dual-use items must be taken in the framework of the common commercial policy, and in particular Council Regulation (EEC) No 2603/69 of 20 December 1969 establishing common rules for exports2. 1 OJ L 159, 30.6.2000, p. 1. 2 OJ L 324, 27.12.1969, p. 25. Page 5 of 239 Preamble (6) Decisions to update the common list of dual-use items subject to export controls must be in conformity with the obligations and commitments that Member States have accepted as members of the relevant international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties. Comment: This Regulation was adopted at a time when all the EU Member States were still not members of the five relevant international export control regimes. The present situation is as follows: - Regarding nuclear items: o All EU Member States are members of the Nuclear Suppliers Group; o Cyprus, Estonia, Latvia, Lithuania, Malta have applied to the Zangger Committee or their intentions are not yet known. - Regarding chemicals and biological items: o All EU Member States are members of the Australia Group. - Regarding missiles technology: o Cyprus, Estonia, Latvia, Lithuania, Malta, Slovenia, Slovakia and Romania have applied to the Missile Technology Control Regime (MTCR). - Regarding the Wassenaar Arrangement (nuclear, biological, chemicals items): o All EU Member States are members of the Wassenaar Arrangement apart from Cyprus that has applied thereto. The participation of all EU Member States in all of export control regimes is a major challenge in ensuring the efficiency of the EU export control regime. Due to the fact that most transfers of dual-use items between Member States are not submitted to authorisation (implementation of the internal market), the efficiency of the EU export control regime could only be maintained if all Member States are bound by the same international export control commitments. Page 6 of 239 Preamble (7) Common lists of dual-use items, destinations and guidelines are essential elements for an effective export control regime. (8) Transmission of software and technology by means of electronic media, fax or telephone to destinations outside the Community should also be controlled.
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