Explanatory Memorandum to COM(2011)704 - Amendment of Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items - Main contents
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| dossier | COM(2011)704 - Amendment of Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and ... |
|---|---|
| source | COM(2011)704  |
| date | 07-11-2011 |
Updates of the EU control list (Annex I of Regulation 428/2009)
Decisions to control the export of dual-use items are taken by consensus in international export control regimes (Australia Group (AG) for biological and chemical items; Nuclear Suppliers Group (NSG) for civil nuclear items, the Missile Technology Control Regime (MTCR) and the Wassenaar Arrangement (WA) for conventional arms and dual-use goods and technologies). The purpose of these export control regimes is to limit the risk of sensitive dual-use items being used for military purposes and/or in proliferation programmes. With a view to making export controls as effective as possible, the international export control regimes bring together the major suppliers of dual-use items. By agreeing to control trade in specific items, they effectively work together to limit the proliferation risk, while ensuring that legitimate trade is not hindered.
Technological progress in today's world means that there is a need to regularly update the list of controlled items. While decisions of these international regimes are not legally binding, Article 15 of the Regulation specifies that 'the list of dual-use items set out in Annex I shall 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'.
The international export control regimes take control list decisions approximately 4 times per year. These updates need to be integrated into EU legislation on a regular and timely basis due to their security and trade implications. On the one hand, a decision by international export control regimes to add new items to the control lists means that these additional items also need to be controlled consistently by the entire EU for security reasons. On the other hand, a decision by international export control regimes to stop controlling certain items needs to be translated into EU legislation as quickly as possible in order to allow EU exporters to compete on the global market.
Currently, any update of Regulation (EC) No 428/2009 including of Annex I requires the use of the ordinary legislative procedure. At the same time, given the technical nature of these amendments and the fact that these changes need to be in conformity with decisions taken in the international export control regimes, there is little margin for manoeuvre for introducing modifications to the amendments agreed in the regimes.
Consequently, it is necessary to introduce delegated acts in order to update Annex I of Regulation (EC) No 428/2009 on a regular basis. This approach would allow the Commission to make the necessary updates as and when required.
Necessary modifications to EU General Export Authorisations (Annex II of Regulation (EC) No 428/2009)
EU General Export Authorisations, as set out in Article 9 i and Annex II of Regulation (EC) No 428/2009, have proven to be highly successful tools facilitating lower risk exports of certain items to certain destinations. A single EU General Export Authorisation (EU001) has existed for many years allowing for facilitated exports of most controlled items to seven low-risk destinations (Australia, Canada, Japan, New Zealand, Norway, Switzerland and USA). The Commission proposed in December 2008 to introduce six new EU General Export Authorisations i. An agreement concerning these new Authorisations was reached in mid-2011.
The contents of existing and future EU General Export Authorisations need to be continuously monitored in order to ensure that only low-risk transactions are covered by the Authorisations. Given the fast pace of developments around the world, there is a need to ensure that existing EU General Export Authorisations can be modified rapidly as regards their destination and item scopes, so that changing global circumstances can be properly reflected in the EU export control system.
Consequently, it is necessary to introduce delegated acts in order to allow the Commission to rapidly remove destinations and/or items from the scope of existing EU General Export Authorisations.
Existing legislative proposals on dual-use export control issues
The European Parliament and the Council are currently dealing with two legislative proposals that will amend Regulation (EC) No 428/2009:
1. The first proposal (COM(2008) 854) aims at introducing new EU General Export Authorisations. The European Parliament voted in favour of the proposal on 27 September 2011. Once adopted, this amending Regulation will also modify the terminology used in Regulation (EC) No 428/2009 (references to Community will whenever possible be changed to Union).
2. The second proposal (COM(2010) 509) aims at updating the EU control list by introducing modifications agreed in the international export control regimes in 2009. The European Parliament voted in favour of the proposal on 13 September 2011.
Commission proposal
In the light of the above considerations it is necessary to amend Regulation (EC) No 428/2009.