After almost 5 years since the EU Commission proposed a revision of Regulation 428/2009 on export control on dual-use goods and technologies (“Dual-Use Regulation”), the Council and the EU Parliament have both agreed on the final text of the Recast.
This Dual-use Regulation was part of the EU’s export control system and was first established in 2009. It regulates trade in goods, software and technology that can be used for both civilian and military purposes. Along with the rapid technological and political changes the need increased to modernize the EU’s response to the evolving security risks related to emerging technologies.
This updated regulation includes substantial changes, including a greater focus on cyber surveillance, human rights and terrorism-related considerations. The new rules will enter into force 90 days after the Recast has been signed by the EU Parliament and the Council. Since the Council and the EU Parliament have both agreed on this revised regulation, it is expected that the Recast will be signed in the coming weeks and apply in the last quarter of 2021.
The new rules
The Recast imposes stricter controls on a wider range of emerging technologies and for exporters and brokers the Recast expands the scope of controls, establishes new authorizations and introduces due diligence obligations.
The new rules include, amongst others:
- a requirement for exporters using a global export authorization to have an internal compliance programme (ICP) (unless national authorities deems it unnecessary), along with other due diligence obligations;
- an EU-level coordination mechanism allowing for greater exchange between the Member States and the EU Commission concerning the export of cyber-surveillance items;
- two new general export authorizations: for intra- group technology transfers and exports of controlled encryption items;
- “transmissible controls” whereby national authorities may impose controls on the basis of the national legislation of another Member State, allowing a cross-border effect of national rules;
- An expansion of controls on brokering covering non-EU legal persons that provide brokering services from the EU.
With these changes it is crucial to determine if activities fall under the scope of the EU Dual-Use legal framework, and if so, what the exact implications of the new rules are.
You can find more information here.