Dual-Use Items
Dual-use items are goods (including products, software, and technology) that can be used for both civilian and military use due to their technical specifications.
The export of dual-use items to third countries, and in certain cases their transfer within the EU, as well as the brokering, transit, and technical assistance related to dual-use goods, is subject to controls. These measures aim to implement the Member States' international obligations and commitments in the areas of non-proliferation of weapons of mass destruction and prevention of destabilising accumulations of arms.
Since 1995, this area has been governed by a regulation of the European Union (formerly the European Community). Regulation (EU) 2021/821 on dual-use items (Dual-Use Regulation) entered into force on 9 September 2021, replacing Regulation (EC) No 428/2009.
On 7 November 2024, the Commission Delegated Regulation (EU) 2024/2547 of 5 September 2024 amending Regulation (EU) 2021/821 was published in the Official Journal L237/1.
The Dual-Use Regulation comprises two lists of controlled items: Annex I specifies which items require authorisation for export to third countries (non-EU states, including EEA and EFTA states); Annex IV lists particularly sensitive items, for which authorisation is also required for transfers between EU Member States. These lists are updated annually by the European Commission.
In exceptional cases, items not listed in Annex I of the Dual-Use Regulation, as well as brokering, transit, or technical assistance, may also be subject to an authorisation requirement under the "catch-all" provision.
What Are “Catch-all” provisions?
Article 4 of the Dual-Use Regulation establishes the EU's "catch-all" provision. It allows EU Member States to impose authorisation requirements for the export of non-listed items (i.e., not listed in Annex I of the Dual-Use Regulation). Two conditions must be met for this to apply:
- a critical end-use
- knowledge of the critical end-use.
If an exporter is aware that the items to be exported are intended for military use in a country under an arms embargo, or if there is reason to believe of end-use related to chemical, biological, or nuclear weapons or their means of delivery, this must be reported to the Ministry of Economy, Energy and Tourism prior to export.
Article 5 of the Dual-Use Regulation introduces a specific catch-all provision for the export of non-listed cyber surveillance items. These items are defined in Article 2(20) of the regulation as products specifically designed to enable the covert surveillance of natural persons through the monitoring, interception, collection, or analysis of data from information and telecommunications systems.
If an exporter has reason to believe that such items are wholly or partially intended for use in internal repression and/or the commission of serious violations of human rights and international humanitarian law, this must be reported to the Ministry of Economy, Energy and Tourism prior to export.
Advice
Notice
On 16 October 2024, Commission Recommendation (EU) 2024/2659 of 11 October 2024 on guidelines for the export of cyber surveillance items was published in the Official Journal of the European Union.
Controlled Items
The list of controlled items in Annex I of the Dual-Use Regulation is based on control lists developed within the framework of informal international cooperation under the four export control regimes:
- The Wassenaar Arrangement, which regulates goods that can be used for conventional military applications.
- The Nuclear Suppliers Group (NSG), which controls items that can be used in the nuclear fuel cycle or for nuclear weapons.
- The Australia Group (AG), which addresses items that could be related to biological or chemical weapons.
- The Missile Technology Control Regime (MTCR), which governs items related to missile technology.
Austria is a member of all these regimes and actively participates in drafting the respective control lists.
The Dual-Use Regulation also regulates cooperation between the competent authorities of EU Member States in cross-border cases and risk assessment. In addition, it harmonises the criteria that authorities must take into consideration in the licensing process. These criteria are based not only on international legal obligations, such as arms control and disarmament treaties (e.g. the Non-Proliferation Treaty and the Chemical Weapons Convention) and the rules of the export control regimes, but also on the criteria set out in Common Position 2008/944/CFSP, which establishes common rules governing the control of exports of military technology and equipment.