On 19 December 2018, the European Commission presented a proposal for a Regulation to add the United Kingdom to the list of countries for which a general authorisation to export dual-use items is valid throughout the EU.
At the European level, the export control regime of dual-use items is governed by Regulation (EC) No. 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (Dual-Use Regulation). The Dual-Use Regulation is binding and directly applicable in all Member States, including the United Kingdom.
According to the Regulation, dual-use goods are “… items, including software and technology, which can be used for both civil and military purposes. They consist of all goods, including intermediate ones, which may be used for non-explosive purposes, as well as for the manufacture of nuclear weapons or other nuclear explosive devices…”.
The Regulation establishes a common EU control list as well as rules for its implementation. Under the Regulation, an authorisation is required for the export of dual-use items to third countries. This authorisation may be individual, global or general. The Regulation provides for “Union General export authorisations” for the export of certain dual-use items to certain third countries under certain conditions. In particular, Annex IIa to the Regulation provides for a Union General Export Authorisation (“EU001”) for certain low-risk transactions, e.g. exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland (including Liechtenstein), and the United States of America.
According to the Commission, the United Kingdom should be added to the list of EU001 countries since: (i) it is a party to relevant international treaties and a member of international non-proliferation regimes and maintains full compliance with related obligations and commitments; (ii) it maintains full compliance with obligations under sanctions imposed by a decision or a common position adopted by the Council or by a decision of the Organization for Security and Co-operation in Europe (OSCE) or by a resolution of the Security Council of the United Nations; and (iii) it applies proportionate and adequate controls effectively addressing considerations about intended end use and the risk of diversion consistent with the provisions and objectives of the Regulation.
On the same date, the Export Control Joint Unit (ECJU) of the Department for International Trade of the UK Government updated its guidelines on export of controlled goods in case of a no deal Brexit, explaining that, despite the overall system continuing to be the same, changes would occur to some licensing requirements. In particular: (i) the movement of dual-use items from the UK to the EU would require an export licence; (ii) since extant export licences issued in the UK would no longer be valid for exporting dual-use items from EU Member States, a new licence, issued by an EU Member State, will be required; (iii) extant export licences issued by the remaining Member States would no longer be valid for exporting dual-use items from the UK and a new licence, issued by the UK, will be required.
As a result, on 1 February 2019 the ECJU published a new open general export licence (OGEL), coming into force on 29 March 2019 should the UK leave the EU without a deal. The OGEL will allow the export of dual-use items from the UK to EU Member States and the Channel Islands.