Introduction

The Council amended, on 24 October 2008, Council Regulation (EC) No. 1334/2000 (“Dual-Use Regulation”) by adopting Council Regulation (EC) No. 1167/2008 (“Amending Dual-Use Regulation”). The Council amended, on 24th October 2008, Council Regulation (EC) No. 1334/2000 (“Dual-Use Regulation”) by adopting Council Regulation (EC) No. 1167/2008 (“Amending Dual-Use Regulation”). The Amending Dual Use Regulation will enter into force on 3 January 2009 and is directly applicable in all EU Member States.

The Amending Dual-Use Regulation makes a number of changes with regard to Annexes I and IV of the Dual-Use Regulation. However, the Amending Dual-Use Regulation does not provide for a medical exemption for encryption items as stated in the proposal (COM (2008) 541 final to amend Regulation (EC) 1334/2000) of the European Commission.

The Amending Dual-Use Regulation

The Council decided to adopt the amendment in order to take account of changes which have been already adopted in the following non-proliferation regimes:

  • Wassenaar Arrangement (“WA”);
  • Australia Group (“AG”); and
  • Missile Technology Control Regime (“MTCR”).  

In this connection, Annex I and IV have been updated in conformity with the relevant international obligations and commitments of the EU Member States and the European Community. These include amendments made in the control lists of the WA, AG and MTCR.

Annex I refers to items and technologies that are submitted to control prior to export. The most principal changes adopted with regard to Annex I occur in Category 1 (“Materials, chemicals, “microorganisms” and “toxins”), Category 2 (“Materials Processing”), Category 3 (“Electronics”), Category 4 (“Computers”), Category 5 (“Telecommunications and “information security”), Category 6 (“Sensors and lasers”), Category 7 (“Navigation and avionics”) and Category 9 (“Aerospace and Propulsion”). No changes have been adopted with regard to Category 8 (“Marine”).

The lists in Annex IV provide a detailed overview of the items that are controlled prior to being transferred within the European Community. With regard to Annex IV, the most principal changes have been made in relation to items described under headings 1A007, 3A229 and 3A232.

For a full overview of the Amended Dual-Use Regulation comprising changes adopted with regard to Annexes I and IV, please visit the following link.

Medical exemption for encryption items

While the proposal of the European Commission specifically included the medical exemption for encryption items, the Council decided not to adopt this exemption in the Amending Dual-Use Regulation.

It should be emphasised that the medical exemption for encryption items, as stipulated in the WA under (NF(96) DG PL/WP1), has already been implemented in non-EU countries being members of the WA.

Conclusion

The Amended Dual-Use Regulation provides that the Annexes I and IV of the Dual-Use Regulation have been updated in order to be in conformity with the international non-proliferation regimes such as the WA, AG and MTCR.

It can be concluded that the Amended Dual-Use Regulation is not entirely in conformity with the adopted changes in the non-proliferation regimes given the fact that the Council was reluctant to adopt the medical exemption for encryption items, as provided for in the WA.

For a legal background of the European Commission’s proposal to amend the EU Dual-Use Regulation, please visit the following link.