斯德哥尔摩国际和平研究所-Implementing-the-2021-Recast-of-the-EU-Dual_16页_470kb

Summary of "Implementing the 2021 Recast of the EU Dual-Use Regulation: Challenges and Opportunities"

I. Introduction

The European Union (EU) has been working since the early 1990s to coordinate and harmonize export controls on dual-use items—goods, software, and technology that can be used for both civilian and military purposes. The first EU legislation on dual-use controls was adopted in 1994, and a significantly updated version, Regulation (EC) 428/2009, was introduced in 2009. In 2011, the EU initiated a review of the 2009 regulation, which culminated in the 2021 recast of the dual-use regulation entering into force on 9 September 2021. The recast was driven by concerns related to the regulatory burden on exporters, uneven national implementation, and the need to control the export of emerging technologies, particularly cybersurveillance items.

II. Key Issues and Proposals

1. Reducing Exporters' Regulatory Burden

• The EU aimed to reduce the administrative burden on exporters by increasing the number of General Export Authorisations (EUGEAs).
• Four new EUGEAs were proposed, covering:
  • Goods using cryptography
  • Intra-company transfers of technology
  • Low-value shipments
  • 'Other dual-use items'
• The European Parliament (EP) supported all proposals but called for the complete removal of export licensing restrictions on cryptography.
• Member states were concerned about the implications of such changes on national security and opted for a more limited approach.
• The 2021 recast includes EUGEAs for cryptography and intra-company transfers, but not for low-value shipments or 'other dual-use items'.
• It also streamlines the amendment process for EUGEAs.
• The EP proposed a 30-day processing deadline for licensing and GEA applications, which was not adopted due to concerns about national implementation capabilities.
• The recast encourages the use of electronic licensing procedures and the development of an electronic licensing platform.

2. Harmonizing National Controls

• The Commission and the EP aimed to standardize the application of dual-use controls across member states by clarifying key terms and promoting uniformity in enforcement.
• Terms such as 'internal compliance programme (ICP)' and exemptions for 'basic scientific research' and 'public domain' information were not clearly defined in the 2009 regulation, leading to varied interpretations.
• The 2021 recast provides a definition for ICP and calls for associated guidelines, but does not define 'basic scientific research' and 'public domain' information.
• The concept of 'deemed exports'—transfers within a country's borders—was not covered by the 2009 regulation or any EU legislation.
• The recast expands controls on 'technical assistance' to include transfers to individuals temporarily present in the EU's customs territory.
• Member states vary in how they interpret and apply catch-all controls, and in the penalties imposed for non-compliance.
• The recast does not harmonize penalties but increases inter-governmental information sharing and expands the scope of enforcement coordination.

3. Controlling Cybersurveillance Items

• Cybersurveillance items are used by intelligence and law enforcement agencies to monitor and exploit data through ICTs.
• After the Arab Spring uprisings in 2011, reports highlighted the role of EU and US companies in supplying such items to repressive regimes in the Middle East and North Africa.
• The EU, through the Commission, Council, and EP, committed to tightening controls on cybersurveillance items.
• The recast includes expanded controls on cybersurveillance items, particularly those used for monitoring and tracking via telecommunications.
• The 2021 recast also includes new controls on 'technical assistance' related to these items.
• NGOs and EP members argued that existing controls were not sufficient and called for broader coverage, including facial recognition and biometric systems.

4. Responding to Emerging Technologies

• The EU has increasingly focused on controlling emerging technologies such as 3D printing, artificial intelligence (AI), and cyber-surveillance systems.
• The 2021 recast expands the scope of unlisted items, allowing for more flexible control mechanisms.
• It includes provisions for monitoring and controlling unlisted items that could be used for WMD programs, military end use, or as components in illegal military items.
• The EU also seeks to align its export controls with multilateral regimes such as the Wassenaar Arrangement (WA), the Australia Group (AG), and the Missile Technology Control Regime (MTCR).

III. Key Changes in the 2021 Recast

1. Enforcement Coordination Mechanism:

   • A new mechanism enables information sharing between enforcement agencies and licensing authorities.
   • This is intended to improve coordination and consistency in enforcement across the EU.

2. Controls on Cybersurveillance Items:

   • The 2021 recast expands the scope of dual-use controls to include cybersurveillance technologies.
   • It includes specific controls on items like mobile telecommunications interception equipment, intrusion software, and IP network surveillance systems.
   • The recast also introduces new controls on 'technical assistance' related to these items.

3. Public Transparency:

   • A new public report is required for all exports of dual-use items, enhancing transparency.
   • This report is intended to support accountability and provide data for policy development.

4. Expanded Control of Unlisted Items:

   • The recast includes a more flexible mechanism for controlling unlisted items, particularly emerging technologies.
   • This allows for the inclusion of items that may not be listed but could contribute to WMD programs or have military end use.

IV. Conclusion and Recommendations

• The 2021 recast represents a significant update to the EU's dual-use export control framework.
• It addresses key challenges such as regulatory burden, national implementation, and the control of emerging technologies.
• The paper highlights the need for effective implementation and greater coherence in the EU's broader export control and non-proliferation efforts.
• Recommendations include the development of clear guidelines, improved enforcement coordination, and enhanced public transparency.
• The EU must continue to balance security objectives with the facilitation of non-sensitive exports, while addressing the concerns of member states regarding national sovereignty and implementation capacity.