Introduction of EU Export Control Regime

Introduction of theEU Export Control Regime for Dual-Use Items Council Regulation (EC) No 1334/2000Council Joint Action 2000/401/CFSP : 

Introduction of theEU Export Control Regime for Dual-Use Items Council Regulation (EC) No 1334/2000Council Joint Action 2000/401/CFSP - legal basis, definitions, scope © Svetoslav P. Apostolov, 2007

Slide 2: 

© Svetoslav P. Apostolov, 2007 All rights reserved. Reproduction is authorized under the Use Agreement terms and conditions.

Which of the following can be used for more than one purposes? : 

Which of the following can be used for more than one purposes? axe bat LSD satellite radio nuclear fission gene engineering

Slide 4: 

bat hunting entertainment violence

Slide 5: 

axe logging killing building construction

Slide 6: 

milk meat

Slide 7: 

showing time killing

Slide 8: 

Greek Fire – picture from the Chronicle of Ioannis Skylitzis, mid-12th mid-13th century, Biblioteca Nacional, Madrid (source: http://www.geocities.com/indunna/skylmiltary) warming up cooking killing and destruction killing and destruction Aborigines Using Fire to Hunt Kangaroos (by Joseph Lycett, c.1820) (source: http://www.nla.gov.au/exhibitions/countryandlandscape/artistworks-joseph_lycett.html)

Slide 9: 

radio military communication and navigation news and entertainment civil communication

Slide 10: 

satellite news and entertainment navigation navigation guiding missiles espionage

Slide 11: 

Lysergic acid diethylamide (LSD), synthesized by Albert Hofmann in 1938. (source: http://en.wikipedia.org/wiki/LSD) LSD recreational and spiritual uses therapeutic agent for psychotherapy

Slide 12: 

Ammonium nitrate (source: http://en.wikipedia.org/wiki/Ammonium_nitrate) Fertilizer ANFO (ammonium nitrate/fuel oil explosive) (source: http://en.wikipedia.org/wiki/ANFO) Dimension Stone Quarry (source: http://en.wikipedia.org/wiki/Image:Dimension_Stone_QuarryUSGOV.jpg) BLU-82/B bomb (source: http://en.wikipedia.org/wiki/BLU-82) Alfred P. Murrah Federal Building, 19 April 1995 (source: http://en.wikipedia.org/wiki/Oklahoma_City_bombing)

Slide 13: 

Leibstadt nuclear power plant, Switzerland(source: http://www.iaeste.ch/Trainees/Events/2006/IndustrialSightLeibstadt/) nuclear fission electricity production weapon of mass destruction Mushroom cloud of the atomic bombing of Nagasaki, Japan, 1945 (source: http://en.wikipedia.org/wiki/Atomic_bomb) A post-war "Fat Man" model (source: http://en.wikipedia.org/wiki/Fat_Man)

Slide 14: 

geneticengineering medicine improve agricultural qualities of crops weapon of mass destruction

Slide 15: 

Practically any item and technology can be used for more than one purpose and, therefore, can be referred to as a dual-, triple- or multiple-use item, resp. – technology.

Slide 16: 

2. Global Control Mechanisms 3. EU Policy for Dual-Use Control 4. Regulation (EC) No 1334/2000 7. Conclusions PresentationOutlines 5. Trade-off 6. User-friendliness 1. The Basics

The Basics : 

What are “dual-use” itemsand technologies? The contemporary “dual use” concept evolved in the years after the Second World War, and the term“dual-use” refers to items or technologies, the features of which enable them to serve both civilian and military purposes with few or no modifications. The Basics

Slide 18: 

Served 2 main goals: - limit the diffusion of advanced technology Advanced technology is a technology, the development and use of which provides a significant (an order of magnitude or more) increase in the functional, economical and technical parameters of technical systems (items) or allows for the creation of conceptually new systems (items) that possess new and unprecedented capabilities (Rogozin, D. (ed.). 2004. War and Piece in Terms and Definitions. PoRog, Moscow). The Basics (cont.)

The Basics (cont.) : 

The Basics (cont.)

The Basics (cont.) : 

The Basics (cont.) - support national defence National defence is a system of political, military, social, legal and other national measures aimed to prevent an unpunished attack from any aggressor, to provide the state with readiness to defend against armed aggression, as well as to directly defend an aggression, carry a war, protect the population and [its] territory. Usually the military and the military-industrial complex are entrusted with the task to provide national defence (Rogozin, D. (ed.). 2004. War and Piece in Terms and Definitions. PoRog, Moscow).

The Basics (cont.) : 

In some cases these items or technologies have been developed originally for military or related purposes but have proven commercially viable enough to support adaptation and production for civil (industrial or consumer) uses. Some often cited examples are: Internet Microwave ovens Telecom. Satellites Nuclear power The Basics (cont.) Leibstadt nuclear power plant, Switzerland(source: http://www.iaeste.ch/Trainees/Events/2006/IndustrialSightLeibstadt/) Visualization of the various routes through a portion of the Internet (source: http://en.wikipedia.org/wiki/Internet) (source: http://en.wikipedia.org/wiki/Microwave_oven)

The Basics (cont.) : 

In other cases, the items or technologies have been developed originally for civil uses but they are or may be used (i.e., its application is functionally and economically feasible) for military purposes (e.g., production of warfare). The most often cited examples are the composite materials and the flat-panel screens: Golf clubs Tennis racquets Bulletproof vests Flat screen TV Military aircraft The Basics (cont.) (source: http://en.wikipedia.org/wiki/Ballistic_vest) (source: http://en.wikipedia.org/wiki/Golf_club_%28equipment%29) (source: http://en.wikipedia.org/wiki/Tennis_racquet)

The Basics (cont.) : 

Because of their potential for military use and the risk of theft or appropriation by hostile powers, the spread and use of these dual-use items or technologies were subject to special control measures in the years of the Cold War. The Basics (cont.)

The Basics (cont.) : 

Two main approaches to control dual-use items and technologies: a) lower the grade of a product or technology intended for wide access; b) establish export control mechanisms for “strategic” items or technologies. The Basics (cont.)

The Basics (cont.) : 

Three basic types of export control mechanisms: 1) Items on a control list; 2) Entities on a control list; 3) Activities on a control list – “catch-all” control system. The Basics (cont.)

Slide 26: 

1. The Basics 3. EU Policy for Dual-Use Control 4. Regulation (EC) No 1334/2000 7. Conclusions PresentationOutlines 5. Trade-off 6. User-friendliness 2. Global Control Mechanisms

Global Control Mechanisms : 

Global Control Mechanisms The first global mechanism to control dual-use items and technologies was the CoCom (Coordinating Committee on Multilateral Export Controls).The CoCom was found on 22.11.1949, commenced work on 01.01.1950 and operated until 31.03.1994.

Global Control Mechanisms (cont.) : 

Global Control Mechanisms (cont.) The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies was established on 19.12.1995 as the successor to the CoCom and is still in operation.

Global Control Mechanisms (cont.) : 

Global Control Mechanisms (cont.) Along with the Wassenaar Arrangement, several other global mechanisms were put into operation to control the proliferation of weapons of mass destruction: - Australia Group (controls the use of dual-use precursor chemicals, biological agents, chemical and biological equipment, and related technology);- Missile Technology Control Regime (aims at preventing proliferation of unmanned delivery systems for NBC weapons);- Nuclear Suppliers’ Group (aims to prevent the proliferation of nuclear weapons through export controls of nuclear and nuclear-related material, equipment, software and technology); - Zangger Committee (aims to ensure the peaceful use of nuclear material and equipment). International weapon and technology transfer control mechanisms (source: http://www.wassenaar.org/introduction/overview.html)

Slide 30: 

1. The Basics 2. Dual System - Germany 4. Regulation (EC) No 1334/2000 7. Conclusions PresentationOutlines 5. Trade-off 6. User-friendliness 3. EU Policy for Dual-Use Control

EU Policy for Dual-Use Items and Technologies Control : 

Need for new legislation - individual Member States measures: insufficient. - integrated system for export control: effective protection. - new Community legislation: joint action, effective export control, free movement of goods within the Community. EU Policy for Dual-Use Items and Technologies Control

EU Policy for Dual-Use Items and Technologies Control : 

Early Legislation The “cornerstone” legal acts of the regulating the export of dual-use items from the European Community were: Council Decision 94/942/CFSP on the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union concerning the control of exports of dual-use goods (OJ L 367, 31.12.1994), which introduced a list of dual-use goods and control of technology transfer. Council Regulation (EC) No 3381/94 setting up a Community regime for the control of exports of dual-use goods (OJ L 367, 31.12.1994). EU Policy for Dual-Use Items and Technologies Control

EU Policy for Dual-Use Items and Technologies Control : 

Contemporary Legislation Currently the EU legal act controlling the export of dual-use items and technologies is Council Regulation (EC) No 1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual-use items and technology (OJ L 159, 30.6.2000). The implementation of Regulation (EC) No 1334/2000 is supported by Council Joint Action of 22 June 2000 concerning the control of technical assistance related to certain military end-uses (2000/401/CFSP) (OJ L 159, 30.6.2000). EU Policy for Dual-Use Items and Technologies Control

Slide 34: 

1. The Basics 2. Global Control Mechanisms 7. Conclusions PresentationOutlines 5. Trade-off 6. User-friendliness 3. EU Policy for Dual-Use Control 4. Regulation (EC) No 1334/2000

Council Regulation (EC) No 1334/2000 : 

Goal The Council Regulation (EC) No 1334/2000 of 22 June 2000 setting up a Community regime for the control of exports of dual-use items and technology sets up a Community system of controls for dual-use items and technologies exported from the Community. Instrument An authorisation (licensing) procedure for certain exports based on the “catch-all” principle. Council Regulation (EC) No 1334/2000

Council Regulation (EC) No 1334/2000 (cont.) : 

Definitions Art. 2 of the Regulation defines the following terms related to the control of dual-use items and technologies: ‘dual-use items’, ‘export’, ‘exporter’, and ‘export declaration’. Dual-use items: items, including software and technology, which can be used for both civil and military purposes, as well as all goods which can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices. Export: (i) an export procedure within Art. 161 of the Community Customs Code; (ii) a reexport within Art. 182 of the Community Customs Code; (iii) transmission of software or technology by electronic media, fax or telephone to a destination outside the Community. Council Regulation (EC) No 1334/2000 (cont.)

Council Regulation (EC) No 1334/2000 (cont.) : 

Scope The scope of application of the Regulation is described in its Chapter II. Art. 3 (1) impose an authorisation requirement on the export of all dual-use items and technologies listed in Annex I to the Regulation. In addition to the mandatory authorisation procedure required by Art. 3 (1), Art. 3 (2) provides that an authorisation may also be required for the export to all or certain destinations of certain dual-use items and technologies not listed in Annex I. Council Regulation (EC) No 1334/2000 (cont.)

Council Regulation (EC) No 1334/2000 (cont.) : 

Scope The list of dual-use items, the export of which is subject to authorisation, is divided into the following ten categories: Cat. 0 – Nuclear materials, facilities and equipment Cat. 1 – Materials, chemicals, “microorganisms” and “toxins” Cat. 2 – Materials processing Cat. 3 – Electronics Cat. 4 – Computers Cat. 5 – Telecommunications and “information security” Cat. 6 – Sensors and lasers Cat. 7 – Navigation and avionics Cat. 8 – Marine Cat. 9 – Propulsion systems, space vehicles and related equipment Council Regulation (EC) No 1334/2000 (cont.)

Council Regulation (EC) No 1334/2000 (cont.) : 

“Catch-all” provision Art. 4 of the Regulation introduces the “catch-all” principle. The provision applies in the following cases: 1) official information released by the competent authority; 2) unofficial information or suspicions; 3) certain destinations. Council Regulation (EC) No 1334/2000 (cont.) (source: adapted from http://www.livingoceans.org/media/index.shtml)

Council Regulation (EC) No 1334/2000 (cont.) : 

Types of export authorisation The Regulation establishes two major types of export authorisation based on the issuing authority: 1) Community general export authorisation (CGEA) for certain exports as set out in Annex II, issued by the European Community. 2) authorisation for all other exports for which it is required under the Regulation, issued by the competent Member State authorities: = general export authorisation; = global export authorisation; = individual export authorisation. Council Regulation (EC) No 1334/2000 (cont.)

Council Regulation (EC) No 1334/2000 (cont.) : 

Issues to consider The main issues to be considered by the Member States in deciding whether or not to grant an export authorisation are listed in Art. 8 of the Regulation and include: 1) international commitments; 2) considerations of national foreign and security policy; 3) considerations about the intended end-use and the risk of diversion. Council Regulation (EC) No 1334/2000 (cont.)

Council Regulation (EC) No 1334/2000 (cont.) : 

Validity of the authorisation The authorisation is valid in all Member States of the European Community. Implementation Control The export control implementationof the Regulation can be split intotwo main phases: 1) obtaining of the relevant export authorisation (licence); 2) cross-border transfer of the item or technology (physical export). Council Regulation (EC) No 1334/2000 (cont.) Control flowchart for export from the US (source: web site of the British Defence Staff in the United States, http://www.bdsus.mod.uk/defence-materiel/export-flowchart.html)

Council Regulation (EC) No 1334/2000 (cont.) : 

Exceptions Art. 3 (3) states that the Regulation does not apply to the supply of services or the transmission of technology if that supply or transmission involves cross-border movement of natural persons. Art. 3 (4) states that the Regulation does not apply to dual-use items which only pass through the territory of the Community. Council Regulation (EC) No 1334/2000 (cont.)

Council Regulation (EC) No 1334/2000 (cont.) : 

Updates and amendments Art. 11 of the Regulation provides for a procedure to update the lists in Annex I and Annex IV in order to conform with modifications of the relevant international commitments. In addition to the above update procedure, Annex II of the Regulation has been amended in order to adapt to the accession of new Member States. Council Regulation (EC) No 1334/2000 (cont.)

Slide 45: 

1. The Basic 2. Global Control Mechanisms 7. Conclusions PresentationOutlines 6. User-friendliness 3. EU Policy for Dual-Use Control 4. Regulation (EC) No 1334/2000 5. Trade-off

Trade-off : freedom vs. security : 

Art. 21 of the Regulation requires that certain particularly sensitive products (listed in Annex IV to the Regulation) always require an authorisation, including for intra-Community transfers, thus constituting an exception to the principle of the free movement of goods within the Community. Trade-off : freedom vs. security

Slide 47: 

1. The Basic 2. Global Control Mechanisms 7. Conclusions PresentationOutlines 3. EU Policy for Dual-Use Control 4. Regulation (EC) No 1334/2000 5. Trade-off 6. User-friendliness

User-friendliness : 

Providing sufficient information: 1) personal – on a case-by-case basis: - reply to a request form an exporter. 2) general – developing information programmes: - guidelines and tips; - diversion risk screening tools. User-friendliness FREE

User-friendliness (cont.) : 

User-friendliness (cont.)

User-friendliness (cont.) : 

User-friendliness (cont.) (source: adapted from http://www.bis.doc.gov/ExportManagementSystems/pdf/screen3.pdf)

User-friendliness (cont.) : 

Facilitating the authorisation procedure: - web sites; - online application forms; - web-based search tools. User-friendliness (cont.) FREE

Slide 52: 

1. The Basic 2. Dual System - Germany PresentationOutlines 6. User-friendliness 3. Career Days and Counseling 4. Regulation (EC) No 1334/2000 5. Accomplish market needs 7. Conclusions

Slide 53: 

The dual-use items and technologies have a great potential to improve the well-being of humankind; however, their potential for military use and the risk of theft or appropriation by hostile powers call for strict control over their export. Some essential freedoms might need to be limited in order to limit the possibilities for proliferation of weapons of mass destruction or their means of delivery and the dissemination of conventional weapons.

Slide 55: 

USE AGREEMENT FOR THE PRESENTATION Introduction of the EU Export Control Regime for Dual-Use Items AGREEMENT REQUIRED TO USE THE PRESENTATION Thank you for your interest in the Introduction of the EU Export Control Regime for Dual-Use Items presentation. The presentation is subject to a disclaimer and a copyright. By continuing working with the presentation, you agree to accept and abide by the terms and conditions specified hereunder. Age and responsibility for Agreement You represent that you are of sufficient legal age to contract or create a binding legal obligation.   Assignment You may not assign, convey, subcontract, give or donate, or delegate your rights, duties or obligations under this Use Agreement.

Slide 56: 

USE AGREEMENT (continued) Disclaimer § 1. General The Introduction of the EU Export Control Regime for Dual-Use Items presentation (hereafter: the presentation) is published by Svetoslav P. Apostolov (hereunder: the Author) with the aim of enhancing public access to information on dual- and multiple-use items and technologies and on certain aspects of the control thereof. The use of the presentation takes place on the basis of these terms and conditions of use. The user accepts these as soon as he/she has been informed of them, has had a reasonable opportunity to read them and continues to use the presentation. This disclaimer is not intended to limit the liability of the Author in contravention of any requirements laid down in applicable national law nor to exclude his liability for matters which may not be excluded under that law.

Slide 57: 

USE AGREEMENT (continued) (4) The Author reserves the right to modify and/or change this Use Agreement at any time without notice. It is the sole responsibility of the user to review this page regularly in order to ensure he/she is familiar with the most up-to-date Use Agreement. The user understands and agrees that if he/she uses the presentation after the date on which the Use Agreement has been updated, his/her use will be treated as acceptance of the updated Use Agreement. (5) The Author reserves the right to suspend or discontinue providing access to the presentation (or any part thereof) at any time without notice. § 2. Responsibility for contents For his own content, which the Author has ready for use, the Author is responsible only in accordance with the general law. (2) The information contained in the presentation is: of a general nature only and is not intended to address the specific circumstances of any particular individual or entity;

Slide 58: 

USE AGREEMENT (continued) not necessarily comprehensive, complete, accurate or up to date; not professional or legal advice (if you need specific advice, you should always consult a suitably qualified professional). (3) The Author shall in no event be held responsible for errors, injuries, damages or losses of any kind (including but not limited to actual losses or lost profits, or missed opportunities) incurred by or in any way connected to the use of the information contained in the presentation. Otherwise the responsibility will be in accordance with the general law. § 3. Technical availability For technical reasons the system providing access to the presentation can from time to time be used only temporarily and/or for only part of the contents. In that case the Author will not be responsible for the Author has no influence on the system. A right to unrestricted access to what is offered does not exist.

Slide 59: 

USE AGREEMENT (continued)   § 4. Exclusion of liability for the system Data or information on the system providing access to the presentation may have been created or structured in files or formats that are not error-free, and the Author cannot guarantee that the service will not be interrupted or otherwise affected by such problems. The Author accepts no responsibility with regard to such problems incurred as a result of using the system, in particular for errors. The same applies for material and software, which are offered on any linked external websites independent of the Author. The Author accepts no responsibility with regard to any possible incompatibility between the system (or its individual elements) providing access to the presentation and the user's specific hardware and software. The Author accepts no responsibility with regard to any possible damages of any kind in the user's hardware or software incurred by or in any way connected to the use of the presentation.

Slide 60: 

USE AGREEMENT (continued) Copyright notice § 1. Copyright law The presentation, including its layout, is protected by the relevant national and international copyright law. The presentation is intended for information and education only and is free to use for non-commercial purposes. A single copy of the presentation may be downloaded for personal, non-commercial, educational or research use and reference. When used for reference, the source must be duly acknowledged. Alterations are forbidden! For any use for commercial purposes, or to make or distribute additional copies, the prior written permission by the Author must be obtained. However, it is permitted to provide any person with the URL [website address] of the presentation or place a hyperlink to the presentation on the maintained by you website(s). Accept and continue reading Decline and exit