wk02685-re03-en18
Dieses Dokument ist Teil der Anfrage „working papers dual-use regulation“
Brussels, 13 April 2018
WK 2685/2018 REV 3
LIMITE
CONOP
COMER
CFSP/PESC
ECO
UD
ATO
WORKING PAPER
This is a paper intended for a specific community of recipients. Handling and
further distribution are under the sole responsibility of community members.
NOTE
From: Presidency
To: Working Party on Dual-Use Goods
Subject: Overview of Member State Positions
With a view to the 19 April Dual Use meeting, delegations will find attached an overview of Member
State positions on Review Issue 1. Upgrade and new key control definitions and concepts and Review
Issues 2 and 3. Optimisation of EU licensing architecture / harmonisation of licensing processes - Part 1
and Part 2. Included are comments just received from Germany and Finland.
WK 2685/2018 REV 3
LIMITE EN
OVERVIEW MSs POSITIONS
Review Issue 1. Upgrade and new key control definitions and concepts
Review Issue 2. Optimisation of EU licensing architecture / harmonisation of licensing processes - Part 1
Review Issue 3. Optimisation of EU licensing architecture / harmonisation of licensing processes - Part 2
Commission Proposal EP Position MSs Proposals MSs Positions
Article 2.1
1.‘dual-use items’ shall mean items, 1.‘dual-use items’ shall mean items, 1.‘dual-use items’ shall mean items, including For keeping the
including software and technology, including software and technology, software and technology, which can be used for existing text in 1 (a):
which can be used for both civil and which can be used for both civil and both civil and military purposes, and shall include
items which can be used for the design, AT, BE, CY, DE, EE,
military purposes, and shall include: military purposes, and shall include:
development, production or use of nuclear, FI, FR, HR, IE, MT,
chemical and biological weapons and their means of NL, PL, RO, SE, SI,
(a) items which can be used (a) traditional dual-use items
delivery, including all goods which can be used for UK, DK
for the design, meaning items, including both non-explosive uses and assisting in any way in
development, production or software and hardware, which the manufacture of nuclear weapons or other
use of nuclear, chemical can be used for the design, nuclear explosive devices.
and biological weapons and development, production or use of
their means of delivery, nuclear, chemical and biological If the option of a separate legal framework to cyber- PT
including all goods which weapons and their means of surveillance items could not be supported by the
majority of Member States, then Portugal would
can be used for both non- delivery, including all goods which
prefer to have a separate definition of cyber
explosive uses and assisting in can be used for both non-explosive surveillance items, outside the dual use definition.
any way in the manufacture of uses and assisting in any way in the
nuclear weapons or other manufacture of nuclear weapons or
nuclear explosive devices; other nuclear explosive devices;
(b) cyber-surveillance (b) cyber-surveillance items Prefer to reformulate: AT, CY, DE, FR, HR,
technology which can be including hardware, software MT, NL, DK
used for the commission of and technology, which are - either keep a definition of cyber-
serious violations of human specially designed to enable the surveillance items in the dual use items
rights or international covert intrusion into definition
humanitarian law, or can information and - or to have a definition of cyber-surveillance
pose a threat to telecommunication systems items but separately from dual use items
international security or and/or the monitoring, definition
the essential security exfiltrating, collecting and - Some MS are still undecided
Page 1 of 32
interests of the Union and analysing of data and/or Prefer to be deleted BE, EE, FI, IE, PL, RO,
its Member States. incapacitating or damaging the SE, SI, UK
targeted system without the
specific, informed and
unambiguous authorisation of
the owner of the data, and
which can be used in
connection with the violation
of human rights, including the
right to privacy, the right to
free speech and the freedom of
assembly and association, or
which can be used for the
commission of serious violations of
human rights law or international
humanitarian law, or can pose a
threat to international security or
the essential security of the Union
and its Members. Network and
ICT security research for the
purpose of authorised testing
or the protection of
information security systems
shall be excluded.
Article 2.2
2.‘export’ shall mean: No amendments AT, BE, CY, DE, EE,
Accept the Commission’s proposal FI, FR, HR, IE, MT,
(a) an export procedure within the NL, PL, RO, SI, UK,
meaning of Article 269 of the DK
Union Customs Code; Union Customs Code needs to be specified by SE
number and year. Footnote no 22 in recital 28 is not
clear and easy to find. An alternative solution would
be to have “Union Customs Code” defined
accordingly in art 2
Accept the Commission's proposal. PT
However, since Germany proposed a new
definition, we wish to make a reserve to analyse this
Page 2 of 32
last proposal further and discuss it together with
the definition of transit.
(b) a re-export within the
meaning of Article 270(1) of the Accept COM Proposal DK
Union Customs Code but not AT, BE, CY, DE, EE,
including items in transit; and (b) a re-export within the meaning of Article FI, FR, HR, IE, MT,
182 270 (1) of that the Union Customs Code (NL)**, PL, RO, SE, SI,
UK
but not including items in transit; and [as well as a
transportation according to Article 2.10 sentence
3.]*
Explanation:
*the sentence covers
transits with a
destination change,
they shall be treated as
re-export; DE will
suggest better
language spelling out
this sentence instead
of only referring to
article 2.10
NL** – proposal needs
to be validated with
customs and HQ
Accept the Commission's proposal. PT
However, since Germany proposed a new
definition, we wish to make a reserve to analyse
this last proposal further and discuss it together
with the definition of transit.
(c) outward processing Accept the Commission’s proposal AT, BE, CY, DE, EE,
procedure within the FI, FR, HR, IE, MT,
meaning of Article 259 of NL, PL, RO, SE, SI,
UK, DK, PT
the Union Customs Code;
and
(d) transmission of software or (d) transmission of software or technology by The following MSs
support to reinsert
Page 3 of 32
technology by electronic media, electronic media, including by fax, telephone, “making available” and
including by fax, telephone, electronic mail or any other electronic means to a “oral transmission
electronic mail or any other destination outside the European Community; it over the telephone” as
well as changing “and”
electronic means to a includes making available in an electronic form
to “or”:
destination outside the such software and technology to legal and or AT, BE, CY, DE, EE,
European Community; it natural persons or and partnerships outside the FI, FR, HR, IE, MT,
includes making available in an Union. Export also applies to oral transmission of NL, PL, RO, SE, SI, UK
electronic form such software technology when the technology is described over
and technology to legal and the telephone; The issue of cloud
natural persons and computing remains
under discussion, see
partnerships outside the Union.
proposals by DE or SE.
Export also applies to oral d) transmission of software or technology by DE
transmission of technology electronic media, including by fax, telephone,
when the technology is electronic mail or any other electronic means to a
described over the telephone; destination outside the European Union unless the
transmission is secured by an end-to-end
encryption and not transmitted to a country of
destination subject to an arms embargo; it includes
making available in an electronic form such
software and technology to legal and natural
persons and partnerships outside the Union.
Export also applies to oral transmission of
technology when the technology is described over
the telephone.
(d) transmission of software or technology by DK
electronic media, including by fax, telephone,
electronic mail or any other electronic means to a
destination outside the European Community; it
includes making available in an electronic form
such software and technology to legal and natural
persons and partnerships outside the Union
Community. A transmission of software or
technology to a digital storage facility is considered
an export when the software or technology is made
accessible to legal and natural persons or
partnerships outside the union. Export also applies
to oral transmission of technology when the
Page 4 of 32
technology is described over the phone.
Article 2.3
AT, BE, CY, DE, EE,
3.‘exporter’ shall mean any natural or legal person
3.‘exporter’ shall mean any natural or No amendments. FI, FR, HR, IE, MT,
legal person or partnership: or partnership: NL, PL, RO, SE, SI, UK
(a) on whose behalf an export or re-export
(a) on whose behalf an export or Explanation:
declaration or, in cases of article 2.2 lit. b, 2nd
re-export declaration is made, (b) the exit summary
that is to say the person who, at alternative, an exit summary declaration is made, declaration is
the time when the declaration is that is to say the person who, at the time when the required in cases
accepted, holds the contract with declaration is accepted, holds the contract with the of destination
the consignee in the third country consignee in the third country and has the power change during
and has the power for for determining the sending of the item out of the transit; DE will
determining the sending of the customs territory of the Union. If no export suggest alternate,
item out of the customs territory less complicated
contract has been concluded or if the holder of the
of the Union. If no export language
contract has been concluded or if contract does not act on its own behalf, the
the holder of the contract does exporter shall mean the person who has the power
not act on its own behalf, the for determining the sending of the item out of the
exporter shall mean the person customs territory of the Union;
who has the power for
determining the sending of the PT
Accept the Commission's proposal.
item out of the customs territory
of the Union; However, since Germany proposed a new
definition, we wish to make a reserve to analyse
this last proposal further and discuss it together
with the definition of transit.
(b) which decides to transmit or No amendments (b) which decides to transmit or make available AT, BE, CY, DE, EE,
make available software or software or technology by electronic media FI, FR, HR, IE, MT,
technology by electronic media including by fax, telephone, electronic mail or by NL, PL, RO, SE, SI, UK
including by fax, telephone, any other electronic means to legal or natural
electronic mail or by any other persons or partnerships outside the Union
electronic means to a destination
legal and natural persons and
partnerships outside the Union.
Page 5 of 32
Where the benefit of a right to
dispose of the dual-use item belongs
to a person resident or established
outside the Union pursuant to the
contract on which the export is Accept the Commission’s proposal AT, BE, CY, DE, EE,
based, the exporter shall be FI, FR, HR, IE, MT,
considered to be the contracting NL, PL, RO, SE, SI,
party resident or established in the UK, PT
Union.
'Exporter' shall also mean any 'Exporter' shall also mean any natural person AT, BE, CY, DE, EE,
natural person carrying the carrying the goods to be exported where these FI, FR, HR, IE, MT,
goods to be exported where goods are contained in the person's personal NL, PL, RO, SE, SI,
UK, PT
these goods are contained in the baggage within the meaning of Article 1 no. (19)(b)
person's personal baggage of Regulation (EU) 2015/2446 of 28 July 2015.
within the meaning of Article
1(19)(b) of Regulation (EU)
2015/2446 of 28 July 2015.
Article 2.4
4.‘export declaration’ shall mean the No amendments. Accept the Commission’s proposal AT, BE, CY, DE, EE,
act whereby a person indicates in the FI, FR, HR, IE, MT,
prescribed form and manner the NL, PL, RO, SE, SI,
wish to place export dual-use items UK, PT
specified in point 1 under an
export procedure;
Article 2.5
5. ‘re-export declaration’ shall Accept the Commission’s proposal AT, BE, CY, DE, EE,
mean the act within the FI, FR, HR, IE, MT,
meaning of Article 5(13) of the NL, PL, RO, SE, SI,
Union Customs Code; UK, PT
5a. ‘end-user’ shall mean any
natural or legal person or entity
that is the final recipient of a dual
use item.
5.a. Exit summary declaration shall mean the act Subsequent change.
within the meaning of Article 5(10) of the Union
Customs Code.
Article 2.12
Page 6 of 32
12. ‘global export authorisation’ shall 12. ‘global export authorisation’ shall mean an AT, BE, CY, DE, EE,
mean an authorisation granted to authorisation granted to one specific exporter in FR, HR, IE, MT, NL,
one specific exporter in respect of a respect of a type or category of dual-use item which PL, RO, SE, SI, UK,
type or category of dual-use item may be valid for exports to one or more specified DK
which may be valid for exports to one No amendment. end users and/or in one or more specified third
or more specified end users and/or in countries;
one or more specified third Accept the Commission’s proposal PT
countries;
Article 2.13
Accept the Commission’s proposal
PT
Still under discussion AT, BE, CY, DE, EE,
FI, FR, HR, IE, MT,
See below the proposals of some MSs: NL, PL, RO, SE, SI, UK
'large project authorisation' shall mean an
individual export authorisation or a global export
authorisation granted to one specific exporter, in
13. ‘large project authorisation’ shall respect of a type or category of dual-use item which
13. 'large project authorisation' shall mean a global export authorisation FI
may be valid for exports to one or more specified
mean a global export authorisation granted to one specific exporter, in
granted to one specific exporter, in respect of a type or category of dual-use end users in one or more specified third countries
respect of a type or category of dual- item which may be valid for exports to for the duration of a specified project the realisation
use item which may be valid for one or more specified end users in one of which exceeds one year;
exports to one or more specified end or more specified third countries for a
users in one or more specified third specified project. It shall be valid for 'large project authorisation' shall mean a global
countries for the duration of a between one and four years, export authorisation granted to one specific
specified project the realisation of except in duly justified cases exporter, in respect of a type or category of dual-use
which exceeds one year; based on the duration of the item which may be valid for exports to one or more
project, and may be renewed by specified end users in one or more specified third
the competent authority; countries and which exports are for the purpose of a NL
specified large scale project of which the duration
will exceed 2 years and has a multidisciplined
character involving dual-use items and/or
technology and/or technical assistance. for the
duration of a specified project the realisation of
which exceeds one
'large project authorisation' shall mean a global BE
export authorisation granted to one specific
exporter in respect of a type or category of dual-use
Page 7 of 32
item which may be valid for exports for the purpose
of a specified large scale project of which the
duration will exceed two years to one or more
specified end users in one or more specified third
countries for the duration of a specified project the
realisation of which exceeds one year;
'large project authorisation' shall mean a global
export authorisation granted to one specific
exporter, in respect of a type or category of dual-use
item which may be valid for exports to one or more SE
specified end users in one or more specified third
countries for the duration of a specified project the
realisation of which exceeds two years
Individual export authorisations and global export
authorisations shall in principle be valid for one
year, unless decided differently by the competent
authority, and may be renewed by the competent LV
authority. Global export authorisations for large
projects shall be valid for a duration to be
determined by the competent authority.
Article 10.1
1. The following authorisations for Accept the Commission’s proposal, but can agree as
export are established under this well with German’s proposal PT
Regulation:
(a) individual export 1. The following kinds of authorisations for export AT, BE, CY, DE, EE,
authorisation; can be issued or are established under this FI, FR, HR, IE, MT,
Regulation: NL, PL, RO, SE, SI, UK
(b) global export
authorisation, including
No amendment. (a) individual export authorisation, [including Still under discussion
global export authorisation
for large projects; individual export authorisation for large projects]
(c) national general export b) global export authorisation, [including global
authorisation; export authorisation for large projects]
(d) Union General Export
Authorisations for certain c) Accept COM proposal AT, BE, CY, DE, EE,
exports as set out in FI, FR, HR, IE, MT,
NL, PL, RO, SE, SI, UK
Page 8 of 32
Sections Annexes IIa A to d) Accept COM proposal AT, BE, CY, DE, EE,
IIf J of Annex II are FI, FR, HR, IE, MT,
established by this NL, PL, RO, SE, SI, UK
Regulation.
All the authorisations shall be valid
throughout the Union Community.
Article 10.2 – Competent authority
2. The competent authority of the The competent authority of the Member State AT, BE, CY, DE, EE,
Member State where the exporter is where the exporter is resident or established shall FI, FR, HR, IE, MT,
resident or established shall be be responsible for deciding whether or not to grant NL, PL, RO, SE, SI, UK
responsible for granting individual
individual and global………
and global authorisations, for issuing
No amendment
national general export
Accept the Commission’s proposal PT
authorisations, as well as for all other
decisions regarding the application of
this Regulation to exporters resident
or established on its territory
When the exporter is resident or Accept the Commission’s proposal slightly AT, BE, CY, DE, EE,
established outside the territory of modified: FI, FR, HR, IE, MT,
the Union, the competent authority NL, PL, RO, SE, SI, UK
of the Member State where the items When the exporter is resident or established outside
are located shall be responsible for the territory of the Union, the competent authority
granting individual and global
of the Member State where the dual use items are
authorisations, as well as for all other
decisions regarding the application of located shall be responsible for granting individual
this Regulation. and global authorisations, as well as for all other
decisions regarding the application of this
Regulation.
No amendment
Accept the Commission’s proposal PT
When the benefit of right to dispose of the dual- use DK
item belongs to a party resident or established
outside the territory of the Union, the competent
authority of the Member State where the items are
located shall be responsible for granting individual
and global authorisations, as well as for all other
decisions regarding the application of this
Page 9 of 32
