wk03710-en18
Dieses Dokument ist Teil der Anfrage „working papers dual-use regulation“
Brussels, 26 March 2018
WK 3710/2018 INIT
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.
CONTRIBUTION
From: AT, BE, CY, DE, EE, FI, FR, HR, IE, MT, NL, PL, RO, SE, SI and UK Delegation
To: Working Party on Dual-Use Goods
Subject: Commission's Proposal for a Regulation setting up a Union regime for control of
exports, transfer, brokering, technical assistance and transit of Dual-Use items - AT,
BE, CY, DE, EE, FI, FR, HR, IE, MT, NL, PL, RO, SE, SI and UK proposals
Delegations will find attached preliminary proposals from AT, BE, CY, DE, EE, FI, FR, HR, IE, MT,
NL, PL, RO, SE, SI and UK concerning the Commission's Proposal for a Regulation setting up a Union
regime for control of exports, transfer, brokering, technical assistance and transit of Dual-Use items.
WK 3710/2018 INIT
LIMITE EN
Preliminary proposal(s) for cluster 1+2 after an informal consultation between some MSs:
AT, BE, CY, DE, EE, FI, FR, HR, IE, MT, NL, PL, RO, SE, SI, UK (+ DK)
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 text
including software and technology, including software and technology, software and technology, which can be used for 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 AT, BE, CY, DE, EE, FI,
items which can be used for the design, FR, HR, IE, MT, NL, PL,
military purposes, and shall include: military purposes, and shall include:
development, production or use of nuclear, RO, SE, SI, UK + DK
(a) items which can be used for (a) traditional dual-use items chemical and biological weapons and their means of
delivery, including all goods which can be used for
the design, development, meaning items, including
both non-explosive uses and assisting in any way in
production or use of nuclear, software and hardware, which the manufacture of nuclear weapons or other
chemical and biological can be used for the design, nuclear explosive devices.
weapons and their means of development, production or use
delivery, including all goods of nuclear, chemical and biological
which can be used for both non- weapons and their means of
explosive uses and assisting in delivery, including all goods which
any way in the manufacture of can be used for both non-
nuclear weapons or other explosive uses and assisting in any
nuclear explosive devices; way in the manufacture of nuclear
weapons or other nuclear
explosive devices;
(b) cyber-surveillance (b) cyber-surveillance items including Some MSs prefer to reformulate: AT, CY, DE, FR, HR,
technology which can be used hardware, software and MT, NL +DK
for the commission of serious technology, which are specially - either keep a definition of cyber-
violations of human rights or designed to enable the covert surveillance items in the dual use items
international humanitarian law, intrusion into information and definition
or can pose a threat to telecommunication systems - or to have a definition of cyber-surveillance
international security or the and/or the monitoring, items but separately from dual use items
definition
Page 1 of 12
essential security interests of exfiltrating, collecting and - Some MS are still undecided
the Union and its Member analysing of data and/or
States. incapacitating or damaging the
BE, EE, FI, IE, PL, RO,
targeted system without the Some MSs prefer to be deleted
SE, SI, UK
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, FI,
Accept the Commission’s proposal FR, HR, IE, MT, NL, PL,
(a) an export procedure within the RO, SI, UK +DK
meaning of Article 269 of the Union Customs Code needs to be specified by Sweden
Union Customs Code; number and year. Footnote no 22 in recital 28 is not
clear and easy to find. An alternative solution would
Page 2 of 12
be to have “Union Customs Code” defined
accordingly in art 2
(b) a re-export within the
meaning of Article 270(1) of the Accept COM Proposal
Union Customs Code but not DK
AT, BE, CY, DE, EE, FI,
including items in transit; and
(b) a re-export within the meaning of Article FR, HR, IE, MT, (NL)**,
182 270 (1) of that the Union Customs Code but PL, RO, SE, SI, UK
not including items in transit; and [as well as a
Explanation:
transportation according to Article 2.10 sentence
3.]* *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
(c) outward processing Accept the Commission’s proposal AT, BE, CY, DE, EE, FI,
procedure within the meaning FR, HR, IE, MT, NL, PL,
of Article 259 of the Union RO, SE, SI, UK +DK
Customs Code; and
(d) transmission of software or (d) transmission of software or technology by The following MSs
technology by electronic media, electronic media, including by fax, telephone, support to reinsert
including by fax, telephone, electronic mail or any other electronic means to a “making available”
and “oral transmission
electronic mail or any other destination outside the European Community; it
over the telephone” as
electronic means to a includes making available in an electronic form such well as changing “and”
destination outside the software and technology to legal and or natural to “or”:
Page 3 of 12
European Community; it persons or and partnerships outside the Union. AT, BE, CY, DE, EE, FI,
includes making available in an Export also applies to oral transmission of FR, HR, IE, MT, NL, PL,
electronic form such software technology when the technology is described over RO, SE, SI, UK
and technology to legal and the telephone;
The issue of cloud
natural persons and computing remains
partnerships outside the Union. under discussion, see
Export also applies to oral proposals by DE or SE.
transmission of technology d) transmission of software or technology by DE
when the technology is electronic media, including by fax, telephone,
described over the telephone; electronic mail or any other electronic means to
a 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
Page 4 of 12
technology when the technology is described over
the phone.
Article 2.3
AT, BE, CY, DE, EE, FI,
3.‘exporter’ shall mean any natural or legal person
3.‘exporter’ shall mean any natural or No amendments. FR, HR, IE, MT, NL, PL,
legal person or partnership: or partnership: RO, SE, SI, UK
(a) on whose behalf an export or re-export
(a) on whose behalf an export or declaration or, in cases of article 2.2 lit. b, 2nd Explanation:
re-export declaration is made, (b) the exit summary
alternative, an exit summary declaration is made,
that is to say the person who, at 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 contract suggest alternate,
item out of the customs territory has been concluded or if the holder of the contract less complicated
of the Union. If no export contract language
does not act on its own behalf, the exporter shall
has been concluded or if the
holder of the contract does not mean the person who has the power for
act on its own behalf, the 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
item out of the customs territory
of the Union;
(b) which decides to transmit or make No amendments (b) which decides to transmit or make available AT, BE, CY, DE, EE, FI,
available software or technology by software or technology by electronic media FR, HR, IE, MT, NL, PL,
electronic media including by fax, including by fax, telephone, electronic mail or by RO, SE, SI, UK
telephone, electronic mail or by any any other electronic means to legal or natural
other electronic means to a persons or partnerships outside the Union
destination legal and natural persons
and partnerships outside the Union.
Page 5 of 12
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, FI,
based, the exporter shall be FR, HR, IE, MT, NL, PL,
considered to be the contracting RO, SE, SI, UK
party resident or established in the
Union.
'Exporter' shall also mean any 'Exporter' shall also mean any natural person AT, BE, CY, DE, EE, FI,
natural person carrying the goods to carrying the goods to be exported where these FR, HR, IE, MT, NL, PL,
be exported where these goods are goods are contained in the person's personal RO, SE, SI, UK
contained in the person's personal baggage within the meaning of Article 1 no. (19)(b)
baggage within the meaning of of Regulation (EU) 2015/2446 of 28 July 2015.
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, FI,
act whereby a person indicates in the FR, HR, IE, MT, NL, PL,
prescribed form and manner the wish RO, SE, SI, UK
to place export dual-use items
specified in point 1 under an export
procedure;
Article 2.5
5. ‘re-export declaration’ shall mean Accept the Commission’s proposal AT, BE, CY, DE, EE, FI,
the act within the meaning of Article FR, HR, IE, MT, NL, PL,
5(13) of the Union Customs Code; RO, SE, SI, UK
5a. ‘end-user’ shall mean any natural
or legal person or entity that is the
final recipient of a dual use item.
Page 6 of 12
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
12. ‘global export authorisation’ shall 12. ‘global export authorisation’ shall mean an AT, BE, CY, DE, EE, FR,
mean an authorisation granted to authorisation granted to one specific exporter in HR, IE, MT, NL, PL, RO,
one specific exporter in respect of a respect of a type or category of dual-use item which SE, SI, UK +DK
type or category of dual-use item may be valid for exports to one or more specified
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
countries;
Article 2.13
Still under discussion AT, BE, CY, DE, EE, FI,
FR, HR, IE, MT, NL, PL,
See below the proposals of some MSs: RO, SE, SI, UK
13. ‘large project authorisation’
13. 'large project authorisation' shall shall mean a global export
mean a global export authorisation authorisation granted to one specific 'large project authorisation' shall mean an
granted to one specific exporter, in exporter, in respect of a type or individual export authorisation or a global export
respect of a type or category of dual- category of dual-use item which may authorisation granted to one specific exporter, in
use item which may be valid for be valid for exports to one or more respect of a type or category of dual-use item which
exports to one or more specified end specified end users in one or more Finland
may be valid for exports to one or more specified
users in one or more specified third specified third countries for a specified end users in one or more specified third countries
countries for the duration of a project. It shall be valid for between
for the duration of a specified project the realisation
specified project the realisation of one and four years, except in duly
which exceeds one year; justified cases based on the duration of which exceeds one year;
of the project, and may be renewed by
the competent authority; 'large project authorisation' shall mean a global Netherlands
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 specified end users in one or more specified
Page 7 of 12
third countries and which exports are for the
purpose of a 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
export authorisation granted to one specific
exporter in respect of a type or category of dual-use
item which may be valid for exports for the purpose
Belgium
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
Sweden
more specified end users in one or more specified
third
countries for the duration of a specified project the
realisation of which exceeds two years
Article 10.1
1. The following authorisations for 1. The following kinds of authorisations for export
export are established under this can be issued or are established under this AT, BE, CY, DE, EE, FI,
Regulation: Regulation: FR, HR, IE, MT, NL, PL,
(a) individual export No amendment. RO, SE, SI, UK
authorisation;
Page 8 of 12
(b) global export (a) individual export authorisation, [including Still under discussion
authorisation, including individual export authorisation for large projects]
global export authorisation
for large projects; b) global export authorisation, [including global
(c) national general export export authorisation for large projects]
authorisation;
c) Accept COM proposal AT, BE, CY, DE, EE, FI,
(d) Union General Export FR, HR, IE, MT, NL, PL,
Authorisations for certain RO, SE, SI, UK
exports as set out in d) Accept COM proposal AT, BE, CY, DE, EE, FI,
Sections Annexes IIa A to
FR, HR, IE, MT, NL, PL,
IIf J of Annex II are
established by this 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, FI,
Member State where the exporter is where the exporter is resident or established shall FR, HR, IE, MT, NL, PL,
resident or established shall be be responsible for deciding whether or not to grant RO, SE, SI, UK
responsible for granting individual
individual and global………
and global authorisations, for issuing
No amendment
national general export
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, FI,
established outside the territory of modified: FR, HR, IE, MT, NL, PL,
the Union, the competent authority RO, SE, SI, UK
of the Member State where the items No amendment When the exporter is resident or established
are located shall be responsible for outside the territory of the Union, the competent
granting individual and global authority of the Member State where the dual use
authorisations, as well as for all other
items are located shall be responsible for granting
Page 9 of 12
