On 26 June 2013, the Irish European Union Presidency and the European Commission hosted the 2013 Strategic Export Control Conference, which focused on modernisation of the EU dual-use export control regulation (428/2009). Ways to regulate new technologies, particularly communication technologies, was high on the agenda, as was amending the system to make it more understandable and industry friendly.
While the discussion of how to amend, or supplement, the EU dual-use regulation is ongoing, we are keenly on the lookout for developments regarding the following drivers and recommendations for modernisation.
Driving factors for modernisation
- Further non-proliferation goals: Ten years ago, nuclear weapons dominated the discourse but with the events in Syria, chemical weapons are back on the agenda, and biological weapons continue to be almost absent from the discussion. Different types of weapons pose different risks, are produced and traded by different actors, and operate within new national and international frameworks.
- Innovation and new technology: Communication technologies, 3D printing, cloud computing, and intangible technology transfers have the potential to increase productivity, but, if not properly regulated, may be turned into threats or Electronic Armies that use mass surveillance, mass censorship, and tracking of dissidents to repress people at home.
- Need for a level playing field: Variations between the dual-use policies of individual Member States and variations between the EU dual-use regulation and the US Commerce Control List make EU exporters less competitive.
- Clarification for industry: Industry representatives sent a clear message that they need clarification of the language and application of the EU dual-use regulation. Companies operate under real world business constraints and therefore must go through a cost-benefit analysis when deciding whether to export dual-use goods. Increased clarity would lower the costs in this analysis, providing access to profit streams from dual-use exports.
- Delegate 428/2009 to the European Commission: The EU is lagging approximately three years behind the latest Wassenaar Agreement amendments and this is making EU exporters less competitive. There is a proposal to delegate updating 428/2009 to the European Commission, which should be decided by the end of 2013.
- New regulating instruments: The idea was floated of creating new regulating instruments for new types of weapons and new types of technology. The question was posed, can we regulate new technologies in the same way we have regulated traditional dual-use goods?
- International cooperation: Non-proliferation goals could be strengthen through international non-proliferation systems and prevention. Universalization of non-proliferation treaties is key, as is providing appropriate funding for high priority item programs such as WMDs.
- Capacity building programs: It is time to shift the training focus from outside the EU to industry at home and start providing “inreach” training for EU industry. The increased range of activities subject to regulation (for example, transit, trans-shipment, brokering, financing) and new actors (for example, trade forwarders, financiers) has created a need for updated training programs and attention to industry within the EU.
- Coordination between Member States: To successfully implement the dual-use regulation, Member States need to increase information sharing and cooperation. While States and industries like the flexibility that individual Member State policies allow, States cannot operate in a vacuum. There must be some consistency between regulations, which will lead to industrial predictability.
- Low value shipments EU General Export Authorization: There is a proposal for a new EU General Export Authorization for low value shipments. Such an authorization is already in place in some Member States.
- Catch-all controls: Industry needs transparency. In the case of catch-all notifications, the identification of the product, the country, and the end-user is not clear and leaves Member States with seemingly unlimited discretion. Industry is calling for the establishment of an institutional memory, where it can find decisions on previous catch-all notifications and therefore identify early whether a product, destination country, or end-user will raise red flags.
- EU general licenses for intra-EU transfers: It was suggested that the list of items subject to licenses for intra-EU transfer should be reduced to reflect only sensitive items and international obligations. To the extent that an item may not be delisted, simplification of controls through an intra-EU general authorization was suggested.
- New approach proposal by end of 2013: A proposal for a new or amended approach to the regulation of dual-use goods is expected by the end of 2013.