2008/0249(COD)

Dual-use items and technology: Community regime for the control of exports (amend. Regulation (EC) No 1334/2000)

Procedure completed

2008/0249(COD) Dual-use items and technology: Community regime for the control of exports (amend. Regulation (EC) No 1334/2000)
RoleCommitteeRapporteurShadows
Opinion AFET BÜTIKOFER Reinhard (Verts/ALE)
Lead INTA LEICHTFRIED Jörg (S&D) CASPARY Daniel (EPP), RINALDI Niccolò (ALDE), CZARNECKI Ryszard (ECR), HIGGINS Joe (GUE/NGL)
Lead committee dossier: INTA/7/02426
Legal Basis TFEU TFEU 207-p2
Subjects
Links

Activites

  • 2011/12/08 Final act published in Official Journal
  • 2011/11/16 Final act signed
  • 2011/11/16 End of procedure in Parliament
  • 2011/10/27 Act adopted by Council after Parliament's 1st reading
  • #3121
  • 2011/10/27 Council Meeting
  • 2011/09/29 CSL Final Agreement
  • 2011/09/27 Text adopted by Parliament, 1st reading/single reading
    • T7-0406/2011 summary
    • Results of vote in Parliament
  • 2011/09/27 Commission response to text adopted in plenary
  • 2011/04/05 Text adopted by Parliament, partial vote at 1st reading/single reading
    • T7-0125/2011 summary
  • 2011/04/04 Debate in Parliament
  • 2011/02/07 Committee report tabled for plenary, 1st reading/single reading
  • 2011/01/26 Vote in committee, 1st reading/single reading
  • 2010/11/09 Prev Adopt in Cte
  • 2010/10/15 Deadline Amendments
  • 2010/08/23 Committee draft report
  • 2010/03/11 Committee referral announced in Parliament, 1st reading/single reading
  • 2010/03/01 EP officialisation
  • 2009/12/02 Additional information
  • 2008/12/16 Legislative proposal
    • COM(2008)0854 summary
    • DG Trade, DE GUCHT Karel

Documents

AmendmentsDossier
100 2008/0249(COD) Dual-use items and technology: Community regime for the control of exports (amend. Regulation (EC) No 1334/2000)
2010/05/12 AFET 24 amendments...
source: PE-441.312
2010/06/18 AFET 14 amendments...
source: PE-443.041
2010/08/23 INTA, INTA 45 amendments...
source: PE-443.007
2010/10/20 INTA 17 amendments...
source: PE-450.923

History

(these mark the time of scraping, not the official date of the change)

2012-02-09
activities added
  • date
    2008-12-16
    docs
    • url
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      text
      • PURPOSE: to achieve uniform and consistent application of controls of exports of dual-use items and technology throughout the Community in order to avoid unfair competition among Community exporters and ensure efficiency of the security controls in the Community.

        PROPOSED ACT: Council Regulation.

        BACKGROUND: Council Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology requires dual-use items (including software and technology) to be subject to effective control when they are exported from the Community. Dual-use items (including software and technology) are civil items which can be used for military purposes. They are subject to control when they are to be exported from the European Union. These controls are designed in particular to prevent the proliferation of  weapons of mass destruction.

        To ensure that such control is fully effective and complies with Member States' commitments at multilateral level, authorisation is required under Article 3 of Regulation (EC) No 1334/2000 for export of the dual-use items listed in Annex I. There are four types of export authorisations:

        1) Community General Export Authorisation (CGEA) No EU001, as referred to in Article 6 of Regulation 1334/2000, covers most of the exports of controlled items to seven countries (United States of America, Canada, Japan, Australia, New Zealand, Switzerland and Norway);

        2) for all other exports for which an authorisation is required under the Regulation, it leaves to the national authorities the final decision as to whether to grant a national general, global or individual export licence.

        National general export authorisations are created by individual EU Member States and are valid in principle across the EU. However, in spite of the requirements of Regulation (EC) No 1334/2000, there is a lack of transparency across Member States regarding both the scope and conditions of use of national general export authorisations and the list of exporters denied access to national general export authorisations. As a result, the chances of infringement of the Regulation are significant. This leads to regulatory treatment of certain exports that benefits businesses established in one Member State at least partly at the expense of businesses established in and national security interests of other Member States, and is not in the best interests of the Community as a whole.

        In its Communication of 18 December 2006, the Commission put forward the idea of the creation of new Community General Export Authorisations in a bid to simplify the

        current legal system, enhance the industry's competitiveness and establish a level playing field for all Community exporters when they export certain items to certain

        destinations.

        IMPACT ASSESSMENT: this initiative does not create new administrative burdens for companies. The objective is to provide exporters with a more comprehensive instrument than national authorisations - valid throughout the European Union. Even if it impossible to measure the exact impact,  it is clear that the initiative will have a positive operational impact on exporters, that there will be no negative impact at EU level and that this narrow legislative initiative would have no far-reaching economic, social or environmental impact beyond the dual-use goods regime.

        LEGAL BASIS: please refer to the summary entitled "background note".

        CONTENT: in order to create new Community General Export Authorisations for certain non-sensitive dual-use items to certain non-sensitive countries, the relevant provisions of Regulation (EC) No 1334/2000 need to be amended by the addition of six new Annexes.

        The draft proposal covers six new CGEAs. Compared to the preferences expressed by the Working Party sub-group on new CGEAs, this proposal has added a number of countries and items and made a number of changes to the conditions of use of the authorisations.

        In addition, the draft Regulation states that the competent authorities of the Member State where the exporter is established should be provided with the possibility of not permitting the use of the Community General Export Authorisations foreseen in this Regulation where the exporter has been sanctioned of an export-related offence punishable by the withdrawal of the right to use these authorisations.

        BUDGETARY IMPLICATION: this proposal has no implication on the EU budget.

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    • The Lisbon Treaty, which entered into force on 1 December 2009, amended the EU's two core treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (EC Treaty). The latter was renamed the Treaty on the Functioning of the European Union (TFEU).

      These changes had various consequences for many proposals presented by the Commission, on the basis of the "old" treaties, before that date. For more information, see COM (2009)0665. In some cases, a new legal framework was conferred on certain proposals that had not previously been subject to the interinstitutional decision-making process. The European Parliament would now be involved in any decision on those proposals.

      The proposal in this procedure file is one such case. It was previously based on Article 133 of the EC Treaty, under which the Commission submitted proposals to the Council for implementing the common commercial policy. It now falls under Article 207(2) of the TFEU, under which the European Parliament and the Council adopt measures, under the ordinary legislative procedure (formerly known as the "codecision" procedure), defining the framework for implementing this policy.

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    • The Committee on International Trade adopted the report by Jörg LEICHTFRIED (S&D, AT) on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology.

      It recommended that the European Parliament's position at first reading under the ordinary legislative procedure should be to amend the Commission proposal.

      The main amendments are as follows:

      Title and Regulation (EC) No 428/2009: the title is changed to Regulation of the European Parliament and of the Council amending Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual use items (recast). The Commission proposal had stated that this was a Council Regulation amending Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology.

      Members consider that this amendment clarifies that the institutions agree to amend the latest version of the Regulation. They note that on 17 December 2008, the Commission submitted a proposal to amend Regulation No. 1334/2000 to the Council. Regulation No. 1334/2000 was replaced by a new Dual-Use-Regulation (Recast) No 428/2009 and entered into force on 27 August 2009. The report also recalls that Regulation (EC) No 1334/2000 was repealed with effect from 27 August 2009. The relevant provisions of Regulation (EC) No 1334/2000 continue to apply only for export authorisation applications made before 27 August 2009.

      Objective: an amended recital states that it is desirable to achieve uniform and consistent application of controls throughout the Union in order to avoid unfair competition among Union exporters, and harmonise the scope of general export authorisations and the conditions of their use. The latter objective was not part of the original proposal.

      Transparency: a new recital notes that in the interest of transparency, democracy and efficient implementation of Regulation (EC) No 428/2009, this Regulation should provide for a mechanism that gives stakeholders such as human rights and peace monitoring organisations and trade unions a say in the decision making process that leads to the updating of the countries of destination as well as the updating of goods identified as dual use items.

      Notifications: Members state that all notifications required under the terms of the Regulation will be made via secure electronic means including a secure system that shall be set up. A secure and encrypted system for the exchange of information among Member States and whenever appropriate the Commission shall be set up by the Commission, in consultation with the Dual-Use Coordination Group. The European Parliament shall be informed about the system's budget, development, provisional and final set-up and functioning, and network costs.

      This amendment seeks to oblige the Commission to set up a secure system for the collection, transmission, and storage of notifications. The system would be destined to have access on-line to a database containing e.g. the denials of export authorisations.

      Establishment of Dual-Use Coordination Group: a Dual-Use Coordination Group chaired by a representative of the Commission shall be set up. Each Member State shall appoint a representative to this Group. It shall examine any question concerning the application of this Regulation which may be raised either by the chair or by a representative of a Member State. The Chair of the Dual-Use Coordination Group or the Coordination Group shall, whenever it considers it to be necessary, consult exporters, brokers and other relevant stakeholders concerned by this Regulation. The Chair of the Dual-Use Coordination Group shall submit an annual report to the European Parliament on its activities, questions examined and consultations as well as a list of exporters, brokers and stakeholders that have been consulted. 

      Review and reporting: every three years the Commission shall review the implementation of this Regulation and present a comprehensive implementation and impact assessment report to the European Parliament and the Council on its application, which may include proposals for its amendment. Member States shall provide to the Commission all appropriate information for the preparation of the report. Special sections of the report shall deal with: a) the Dual-Use Coordination Group and cover its activities, questions examined and consultations as well as a list of exporters, brokers and stakeholders that have been consulted; (b) the implementation of provisions on the secure and encrypted system for the exchange of information among Member States and the Commission; (c) the implementation of the provision which provides for Annex I to be updated in conformity with the relevant obligations and commitments, and any modification thereof, that Member States have accepted as members of the international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties, including the Australia Group, the Missile Technology Control Regime (MTCR), the Nuclear Suppliers Group (NSG), the Wassenaar Arrangement and the Chemical Weapons Convention (CWC); (d) the implementation of provisions which provides for Annex IV, as a subset of Annex I, to be updated with regard to Article 36 of the Treaty on the Functioning of the European Union, namely the public policy and public security interests of the Member States.

      A further special section of the report shall provide comprehensive evidence on penalties, including criminal penalties for serious infringements of the provisions of the Regulation, such as intentional exports intended for use in a programme for the development or manufacture of chemical, biological, nuclear weapons or of missiles capable of their delivery without the authorisation required under this Regulation, or the falsification or omission of information with a view to obtaining an authorisation that would otherwise have been denied.

      The European Parliament or the Council may invite the Commission to an ad hoc meeting of the competent committee of Parliament or of the Council to present and explain any issues related to the application of this Regulation.

      International cooperation: the Commission may negotiate with third countries agreements providing for the mutual recognition of export controls of dual-use items covered by the Regulation, in particular to eliminate authorisation requirements for re-exports within the territory of the Union. When appropriate and when projects financed by the Union are at stake, the Commission can make proposals, in the relevant legislative frameworks of the Union or in the arrangements with third countries, so that an ad hoc committee involving all competent authorities of the Member States can be set up and be entitled to decide on the granting of the necessary export authorisations to ensure the proper functioning of those projects involving dual-use items or technologies.

      This amendment seeks to establish a legal basis on international cooperation to contribute to solving current situations such as e.g. where exporters in third countries and in the EU are obliged to apply controls to transfers of dual-use items in the single market (when third countries' laws impose re-export rules within the single market of dual-use items imported), to allow for mutual recognition of export authorisations and therefore to greatly facilitate joint industrial projects or research projects in particular with third countries members of international export control regimes or listed in the current GEA, and to allow for the adoption of EU-wide specific export control rules that would be applicable to the technologies developed in the EU in the context of EU-financed international programmes involving third countries and would also cover access through intangible means to those technologies.

      Amendments to the Annexes:these amendments seek to:

      • contribute to the formulation of the proposed GEAs;
      • increase the protection offered by the definition of low value shipments, and to protect against the selling price being artificially lowered in order to meet the conditions of the 'low value shipments' export authorisation;
      • introduce an ex-ante notification and registration requirement to the Member States and the Commission, thus raising transparency, to introduce additional safeguards for export authorisation in relation to Annexes IId (Temporary Export for Exhibition or Fair), IIf (Telecommunications), and IIg (Chemicals);
      • prohibit GEAs of items that could be used for launching of cyber-attacks, or of any other means of politically motivated hacking to conduct sabotage or espionage, to deface web pages, or to use denial-of-service attacks to take web pages down;
      • prohibit GEAs to items that can be used by governments or business to violate fundamental human rights.

      Low Value shipment: this is defined as items which are comprised in a single export contract and are dispatched by an exporter to a named consignee in one or more consignments the aggregate value of which does not exceed EUR 3000 (rather than EUR 5000). If a transaction or act proves to be part of an integral economic operation, the value of the whole operation shall be considered when calculating the value of this authorisation. Additional costs such as packaging and transport costs may be excluded from the calculation of the value only under certain conditions.

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      • The European Parliament amended, under the ordinary legislative procedure, the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology.

        The vote on the legislative resolution was postponed to a later plenary session.

        The main amendments made to the Commission's proposal are as follows:

        Title of the Regulation: Parliament suggests the title is changed to Regulation of the European Parliament and of the Council amending Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual use items (recast). This amendment specifies that the three institutions agree to amend the last version of the regulation establishing the Community regime.

        It is recalled that on 17 December 2008, the Commission presented to the Council a proposal to amend Regulation No 1334/2000. This was replaced by a new Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (recast) which entered into force on 27 August 2009. Accordingly, Regulation (EC) No 1334/2000 was repealed with effect from 27 August 2009. The relevant provisions of Regulation (EC) No 1334/2000 continue to apply only for export authorisation applications made before 27 August 2009.

        Objective: an amended recital states that it is desirable to achieve uniform and consistent application of controls throughout the Union in order to avoid unfair competition among Union exporters, and harmonise the scope of general export authorisations and the conditions of their use. The latter objective was not part of the original proposal.

        Notifications: Members state that all notifications required under the terms of the Regulation will be made via secure electronic means including a secure system that shall be set up. A secure and encrypted system for the exchange of information among Member States and whenever appropriate the Commission shall be set up by the Commission, in consultation with the Dual-Use Coordination Group. The European Parliament shall be informed about the system's budget, development, provisional and final set-up and functioning, and network costs.

        This amendment seeks to oblige the Commission to set up a secure system for the collection, transmission, and storage of notifications. The system would be destined to have access on-line to a database containing e.g. the denials of export authorisations.

        Dual Use Coordination Group: the text stipulates that the Chair of the Dual-Use Coordination Group shall submit an annual report to the European Parliament on its activities, questions examined and consultations as well as a list of exporters, brokers and stakeholders that have been consulted. '

        Review and reporting: every three years, the Commission shall review the implementation of this Regulation and present a comprehensive implementation and impact assessment report to the European Parliament and the Council on its application, which may include proposals for its amendment. Member States shall provide to the Commission all appropriate information for the preparation of the report. Special sections of the report shall deal with: i) the Dual-Use Coordination Group (its activities, questions examined and consultations, as well as a list of exporters, brokers and stakeholders who have been consulted); ii) the implementation of Article 19(4), and shall contain a report on the stage reached in the set-up of the secure and encrypted system for the exchange of information among Member States and the Commission; and iii) penalties, including criminal penalties for serious infringements of the provisions of the Regulation, such as intentional exports intended for use in a programme for the development or manufacture of chemical, biological, nuclear weapons or of missiles capable of their delivery without the authorisation required under this Regulation, or the falsification or omission of information with a view to obtaining an authorisation that would otherwise have been denied.

        The European Parliament or the Council may invite the Commission to an ad hoc meeting of the competent committee of Parliament or of the Council to present and explain any issues related to the application of this Regulation.

        International cooperation: the Commission may negotiate with third countries agreements providing for the mutual recognition of export controls of dual-use items covered by the Regulation, in particular to eliminate authorisation requirements for re-exports within the territory of the Union. When appropriate and when projects financed by the Union are at stake, the Commission can make proposals, in the relevant legislative frameworks of the Union or in the arrangements with third countries, so that an ad hoc committee involving all competent authorities of the Member States can be set up and be entitled to decide on the granting of the necessary export authorisations to ensure the proper functioning of those projects involving dual-use items or technologies.

        Low-value shipments: a "low-value shipment" means items which are comprised in a single export contract and are dispatched by an exporter to a named consignee in one or more consignments the aggregate value of which does not exceed EUR 3 000 (compared to EUR 5 000 in the proposal). This amount should be reviewed each year, from 31 October 2112 onwards. If a transaction or act proves to be part of an integral economic operation, the value of the whole operation shall be considered when calculating the value of this authorisation. Additional costs such as packaging and transport costs may be excluded from the calculation of the value only under certain conditions.

        Amendments to the Annexes:Parliament also introduced the following amendments to the Regulation's annexes:

        • specifiying that items should -only be exported towards countries that have been agreed consensually by the Member States;
        • specifying that all exporters are required to inform the competent authorities of the Member State in which they are established of the first use of the authorisation no later than 30 days after the date of the first exportation or, in accordance with a requirement of the authority of the Member State where the exporter is established, before the first use of the general export authorisation. Each Member State may require exporters established on their territory to register themselves before the first use of the authorisation;
        • introducing additional guarantees for the export authorisation;
        • specifying that computers and related equipment are sensitive items and that they may not be covered by general EU export authorisations;
        • specifying that general export authorisations should not be granted for items that can be used by governments or businesses to violate fundamental human rights.
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    • PURPOSE: to achieve uniform and consistent application of controls of exports of dual-use items and technology throughout the Community in order to avoid unfair competition among Community exporters and ensure efficiency of the security controls in the Community.

      LEGISLATIVE ACT: Regulation (EU) No 1232/2011 of the European Parliament and of the Council amending Council Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items

      CONTENT: following agreement at first reading with the European Parliament the Council adopted a regulation establishing new general export authorisations under the EU's regime for the control of exports of dual-use items.

      The new regulation amends and supplements Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, which requires dual-use items to be controlled when they are exported from or transitted through the EU. These controls are designed in particular to prevent the proliferation of weapons of mass destruction. They meet the objectives set by United Nations Security Council resolution 1540(2004).

      The new rules seek to achieve uniform and consistent application of controls throughout the Union in order to ensure a level playing field for EU exporters. They harmonise the scope of general export authorisations and the conditions of their use and to ensure efficiency of security controls.

      The main points of the Regulation are as follows:

      Prohibition on authorisations: the competent authorities of the Member State where the exporter is established can prohibit the exporter from using these authorisations if there is reasonable suspicion about his ability to comply with such authorisation or with a provision of the export control legislation.

      Notification and registration: any exporter who uses this authorisation must notify the competent authorities of the Member State where he is established of the first use of this authorisation no later than 30 days after the date when the first export took place or, alternatively, and in accordance with a requirement by the competent authority of the Member State where the exporter is established, prior to the first use of this authorisation. A Member State may require the exporters established in that Member State to register prior to the first use of this authorisation.

      Export to a country subject to an arms embargo: the amended Regulation stipulates that the general authorisation does not authorise the export of items where the exporter has been informed by the competent authorities of the Member State in which he is established that the items in question are or may be intended, in their entirety or in part for a military end-use in a country subject to an arms embargo imposed by a decision or a common position adopted by the Council or a decision of the Organisation for Security and Cooperation in Europe or an arms embargo imposed by a binding resolution of the Security Council of the United Nations, or if the exporter, under his obligation to exercise due diligence, is aware that the items in question are intended for such use.

      Telecommunications: the new Regulation forbids EU general authorisations for export to certain countries (South Africa, Argentina, China, South Korea, Croatia, India, Russia, Turkey, Ukraine) for use in connection with a violation of human rights, democratic principles or freedom of speech as defined by the Charter of Fundamental Rights of the European Union, by using interception technologies and digital data transfer devices for monitoring mobile phones and text messages and targeted surveillance of Internet use (e.g. via Monitoring Centres and Lawful Interception Gateways).

      Exchange of information: the competent authorities of Member States shall exchange information on exporters deprived of the right to use a Union General Export Authorisation, unless they determine that the exporter will not attempt to export dual-use items through another Member State. A secure and encrypted system for the exchange of information between Member States and, whenever appropriate, the Commission shall be set up by the Commission, in consultation with the Dual-Use Coordination Group. The European Parliament shall be informed about the system’s budget, development, provisional and final set-up and functioning, and network costs.

      The Commission shall submit an annual report to the European Parliament on the activities, examinations and consultations of the Dual-Use Coordination Group, which shall be subject to Regulation (EC) No 1049/2001 on public access to European Parliament, Council and Commission documents.

      Mutual recognition agreements: without prejudice to the provisions on mutual administrative assistance agreements or protocols in customs matters concluded between the Union and third countries, the Council may authorise the Commission to negotiate with third countries agreements providing for the mutual recognition of export controls of dual-use items covered by this Regulation and in particular to eliminate authorisation requirements for re-exports within the territory of the Union.

      Implementation of the Regulation: every 3 years the Commission shall review the implementation of the Regulation and present a comprehensive implementation and impact assessment report to the European Parliament and the Council, which may include proposals for its amendment. Member States shall provide to the Commission all appropriate information for the preparation of the report.

      No later than 31 December 2013, the Commission shall submit to the European Parliament and to the Council a report evaluating the implementation of this Regulation with a specific focus on the implementation of Annex IIb, Union General Export Authorisation No EU002, accompanied by, if appropriate, a legislative proposal to amend this Regulation, in particular as regards the issue of low-value shipments.

      ENTRY INTO FORCE: 07/01/2012.

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© European Union, 2011 – Source: European Parliament