wk07360-en18
Dieses Dokument ist Teil der Anfrage „working papers dual-use regulation“
Brussels, 15 June 2018
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WORKING PAPER
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CONTRIBUTION
From: NL Delegation
To: Working Party on Dual-Use Goods
Subject: Netherlands comments on the commission’s proposal for a revised dual-use
regulation - Working document
With a view to the Dual Use meeting of 20 and 21 June and the articles that will be discussed at these
meetings, delegations will find attached comments from the Netherlands.
WK 7360/2018 INIT
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Netherlands comments on the commission’s proposal for a revised dual-use regulation.
Working document.
Written comments by the Netherlands regarding articles 2 paragraph 8 and 9, article 7 and article 11 for discussion in the Dual Use Working Party
in June 2018. The Netherlands keeps its right to change comments and writing at a later stage.
Article 2 paragraph 8 – definition of technical assistance
Commissions proposal (recast) European Parliament – January 2018 Netherlands
'technical assistance' shall mean any -
technical support related to repairs, Can accept the proposal made by the
development, manufacture, assembly, Commission.
testing, maintenance, or any other technical
service, and may take forms such as
instruction, advice, training, transmission of
working knowledge or skills or consulting
services, including verbal forms of
assistance.
Main rationale:
- The Netherlands can support the proposal to have a clear definition in the main body of the new regulation and finds this preferable over the
kind of hidden definition in the technical note in annex I of the current regulation.
- The proposed text by the Commission is identical with this definition used in a few sanctions regulations. This definition has proven to be helpful
in and the Netherlands believes it could be helpful in the new dual-use regulation as well.
Article 2 paragraph 9 – definition of supplier of technical assistance
Commissions proposal (recast) European Parliament – January 2018 Netherlands
‘supplier of technical assistance’ means any - Needs further discussion.
natural or legal person or partnership
resident or established in a Member State of
the Union, or a legal person or partnership
owned or controlled by such person, or
another person which supplies technical
assistance from the Union into the territory
of a third country.
Main rationale:
- In line with our comments regarding the Commission’s proposal for the definition of broker in article 2.7 of the recast, The Netherlands has
questions about the scope of the proposed definition in article 2.9. For the sake of completeness and clarity, we repeat our questions and
remarks made as follows:
- The terminology ‘ownership and control’ is used in sanctions regulations and is known and described. Would the Commission suggest to abide by
the known terminology used in sanctions? Does this terminology include more than just parent/daughter companies?
- Extra territoriality (ETT) is a highly debated concept. Does the Commission believe it introduces a form of Extraterritorial effect with this
proposal? If not, could the Commission elaborate on the purpose of this proposal in light of ETT?
- Also the Netherlands wonders how this article will be enforced, the Netherlands believes there is a risk that customs and law enforcement will
not be able to effectively use this article if the broker is not established in the EU.
Article 7 – authorisation for technical assistance
Commissions proposal (recast) European Parliament – January 2018 Netherlands
1. An authorisation shall be required for the 1. 1. An authorisation shall be required for 1. An authorisation shall be required for the
provision, directly or indirectly, of technical the provision, directly or indirectly, of provision, directly or indirectly, of technical
assistance related to dual-use items, or technical assistance related to dual-use assistance related to dual-use items, or
related to the provision, manufacture, items, or related to the provision, cyber surveillance technology, or related
maintenance and use of dual-use items, if manufacture, maintenance and use of dual- to the provision, manufacture, maintenance
the supplier of technical assistance has been use items, if the supplier of technical and use of dual-use items, or of cyber
informed by the competent authority that assistance has been informed by the surveillance technology if the supplier of
the items in question are or may be competent authority that the items in technical assistance has been informed by
question are or may be intended, in their the competent authority that the items in
intended, in their entirety or in part, for any entirety or in part, for any of the uses question are or may be intended, in their
of the uses referred to in Article 4. referred to in paragraph 1 of Article 4 . entirety or in part, for any of the uses
referred to in Article 4.
2. If a supplier of technical assistance is 2. If a supplier of technical assistance is
aware that the dual-use items for which he aware that the dual-use items for which he 2. If a supplier of technical assistance, is
proposes to supply technical assistance are or she proposes to supply technical aware that the dual-use items or the cyber
intended, in their entirety or in part, for any assistance are intended, in their entirety or surveillance technology, for which he
of the uses referred to in Article 4, he must in part, for any of the uses referred to in proposes to supply technical assistance are
notify the competent authority which will paragraph 1 of Article 4, he or she must intended, in their entirety or in part, for any
decide whether or not it is expedient to notify the competent authority which shall of the uses referred to in Article 4, he must
make such technical assistance subject to make such technical assistance subject to notify the competent authority which will
authorisation. authorisation.
decide whether or not it is expedient to
make such technical assistance subject to
authorisation.
Main rationale:
- The Netherlands wonders if the Commission sees an overlap between the technology note and the proposed article 7. Technology and technical
assistance are not the same things, but there could be overlap. If so, what would this mean for the wording of the GTN and article 7. Since the
technology note already provides for a license obligation for technology and thus some forms of technical assistance related to listed dual-use
items and the proposed article 7 intends to tackle technical assistance to both listed and non-listed dual-use items. Could the Commission
explain its choice for this wording.
- In line with the Dutch comments on article 5 (brokering services), the Netherlands considers dual-use items and cyber surveillance technology
two separate groups of goods, not necessarily being in the same domain. In order to include cyber surveillance technology in this article, it
should be mentioned explicitly.
- In line with our comments regarding the EP proposal on article 5 (brokering services), the Netherlands cannot accept the proposal of the EP
regarding the word ‘shall’. The Netherlands has no strong feelings about the use of the word ‘he’ in this regulation and prefers to keep the text
as legible as possible.
Article 11 – regarding authorisations for brokering services and technical assistance
Commissions proposal (recast) European Parliament – January 2018 Netherlands
1. 1. - 1.
- Authorisations for brokering services and - NLD can accept COM proposal.
technical assistance under this Regulation
shall be granted by the competent authorities
authority of the Member State where the
broker or supplier of technical assistance
is resident or established.
- NLD wants to further discus.
- Where the broker or the supplier of - Where the broker or the supplier of
technical assistance is not resident or technical assistance is not resident or
established on the territory of the established on the territory of the Union,
Union, authorisations for brokering authorisations for brokering services and
services and technical assistance under technical assistance under this Regulation
this Regulation shall be granted, shall be granted by the competent authority
alternatively, by the competent of the Member State from where the
authority of the Member State where brokering services or technical assistance will
the parent company of the broker or be supplied. This includes brokering
supplier of technical assistance is services and the supply of technical
established, or from where the assistance by subsidiaries or joint
brokering services or technical ventures established in third countries
assistance will be supplied. but owned or controlled by companies
established on the territory of the Union.
2. Authorisations for brokering services and 2. NLD has clarification question.
technical assistance shall be granted for a
set quantity of specific items moving between
two or more third countries. The location of
the items in the originating third country, the
end-user and its exact location must be
clearly identified. The authorisations shall be
valid throughout the Union Community.
3. Brokers and suppliers of technical
3. NLD can accept COM proposal.
assistance shall supply the competent
authorities authority with all relevant
information required for their application for
authorisation under this Regulation for
brokering services, in particular details of
the location of the dual-use items in the
originating third country, a clear description
of the items and the quantity involved, third
parties involved in the transaction, the third
country of destination, the enduser in that
country and its exact location.
4. The competent authorities of the Member 4. NLD cannot accept COM proposal with
States shall process requests for regards to the referral to article 10.5 since
authorisations for brokering services and article 10.5 in the recast is also including
technical assistance within a period of reporting on average processing times.
time to be determined by national law or
practice and under the conditions as set out
in Article 10(5).
5. All authorisations for brokering
services and technical assistance shall 5. NLD can accept COM proposal.
be issued, whenever possible, by
electronic means on forms containing at
least all the elements and in the order
set out in the models which appear in
Section B of Annex III.
Main rationale:
- The Netherlands finds the wording of paragraph 1, second part, a bit complicated. Should the wording be restricted to parent company? Could
the EU bound company also have another relation with the extra-EU broker?
- The Netherlands would like to clarify if paragraph 2 is to be interpreted that only 1 end-user could be named on the license for brokering services
and technical assistance. If so, is this a realistic scenario? Also regarding paragraph 2 – the Netherlands wonders if technical assistance and
brokering services could be granted to a set quantity of specific items, since the character of both activities is hard to match with measurable
quantities (also current text).
- The Netherlands cannot support the Commission’s proposal under paragraph 4 regarding the referral to article 10.5. We are not in favor of the
additional reporting on processing times, mentioned in article 10.5. Furthermore we want to make clear that the time to take a decision on a
license application is linked to our Dutch national administrative law (Algemene wet bestuursrecht).
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