wk05753-en18
Dieses Dokument ist Teil der Anfrage „working papers dual-use regulation“
OVERVIEW MSs POSITIONS
Review Issue 4. Convergence of catch-all controls, Review of brokering controls, Review of transit controls
Commission Proposal EP Position MSs Proposals MSs Positions
Article 4.1
Accept COM’ s proposal FI, DE, SE
1. An authorisation shall be required for the
export of dual-use items not listed in Annex I
if the exporter has been informed by the
competent authorities authority of the
Member State in which he is established that
the items in question are or may be intended,
in their entirety or in part,:
(a) for use in connection with the
development, production, handling,
operation, maintenance, storage,
detection, identification or
dissemination of chemical, biological or
nuclear weapons or other nuclear
explosive devices or the development,
production, maintenance or storage of
missiles capable of delivering such
weapons.;
Accept COM’ s proposal FI, DE, SE
(b) for a military end-use if the
purchasing country or country of
destination is subject to an arms
embargo;
Accept COM’ s proposal FI, DE, SE
3. (c) An authorisation shall also be
required for the export of dual-use items
not listed in Annex I if the exporter has
been informed by the authorities
referred to in paragraph 1 that the items
in question are or may be intended, in
their entirety or in part for use as parts
or components of military items listed in
the national military list that have been
exported from the territory of that a
Page 1 of 14
Member State without authorisation or
in violation of an authorisation
prescribed by national legislation of that
Member State.;
(d) with regard to cyber-surveillance Deleted/ FI, DE
(d) for use by persons complicit in
or responsible for directing or items, for use by natural or legal
committing serious violations of persons in connection with violations of Cannot accept COM`s proposal SE
human rights or international international human rights law or
humanitarian law in situations of international humanitarian law in
armed conflict or internal Denmark reserves the rights for comments at a later DK
countries where serious violations stage
repression in the country of final of human rights have been identified
destination, as identified by
by the competent bodies of the UN,
relevant public international
institutions, or European or the Council of Europe, the Union, or
national competent authorities, national competent authorities, and there
and where there is evidence of the is reason to suspect that this or similar
use of this or similar items for items may be used for the purpose of
directing or implementing such directing or implementing such violations
serious violations by the proposed by the proposed end-user:
end-user;
Deleted FI, DE
(e) for use in connection with acts
of terrorism. Deleted
Cannot accept COM`s proposal SE
Article 4.2
42. If an exporter, under his obligation to 2. If an exporter, becomes aware while 42. If an exporter, becomes aware while DE
exercise due diligence, is aware that dual- exercising due diligence that dual-use exercising under his obligation to exercise
use items which he proposes to export, not items not listed in Annex I which he or due diligence, is aware that dual-use items not
she proposes to export, may be
listed in Annex I, are intended, in their listed in Annex I A which he proposes to export,
intended, in then entirety or in part, for
entirety or in part, for any of the uses referred any of the uses referred to in paragraph 1. not listed in Annex I, are intended, in their
to in paragraphs 1, 2 and 3, he must notify he or she must notify the competent entirety or in part, for any of the uses referred to in
the competent authority authorities authority of the Member State in paragraphs 1, 2 and 3, he must notify the
referred to in paragraph 1, which will decide which he or she is established or competent authority authorities referred to in
whether or not it is expedient to make the resident in, which will decide whether or paragraph 1, which will decide whether or not it is
export concerned subject to authorisation. not it is expedient to make the export expedient to make the export concerned subject to
concerned subject to authorisation.
authorisation.
Page 2 of 14
4 2. If an exporter, under his obligation to SE
exercise due diligence, is aware that dual-
use items which he proposes to export, not listed
in Annex I, are intended, in their entirety or in
part, for any of the uses referred to in paragraphs
1, 2 and 3, he must notify the competent
authority authorities referred to in paragraph
1, which will decide whether or not it is expedient
to make the export concerned subject to
authorisation
Accept COM proposal DE
5. A Member State may adopt or maintain
national legislation imposing an
Explanation: This can be regulated by MS on
authorisation requirement on the export of
dual-use items not listed in Annex I if the basis of art. 8.
exporter has grounds for suspecting that
those items are or may be intended, in their 5 3 A Member State may adopt or maintain national SE
entirety or in part, for any of the uses referred legislation imposing an authorization requirement
to in paragraph 1. on the export of dual-use items not listed in Annex I
if the exporter has grounds for suspecting that
those items are or may be intended, in their entirety
or in part, for any of the uses referred to in
paragraph 1.
2.23a"due diligence" shall mean the Accept EP’ s proposal NL
process through which enterprises
can identify, prevent, mitigate and Not accept EP’ s proposal BE, FI
account for how they address their
actual and potential adverse To be discussed in conjunction with article 4.2 SE, FI, RO, FR
impacts as an integral part of since they are connected.
business decision-making and risk
management systems; The UK would like further clarification from the UK, DK
Commission about the “obligation to exercise due
diligence” – Article 4(2) – before we can comment
on this definition. Where does this obligation come
from? What does this look like and entail in
practice?
Page 3 of 14
DE
23a. ‘due diligence’ shall mean the risk
analysis and management process through
which enterprises can identify, prevent and,
mitigate risks involved in their transaction
and account for how they address their actual and
potential adverse impacts as an integral part of
business decision-making and risk management
systems;
Note: The term “due diligence” is a highly debated
notion. We consider due diligence to be a part of
compliance through which exporters analyze and
manage risks involved in the transaction.
Article 4.3
3. Authorisations for the export of FI
Accept COM’ s proposal
non-listed items shall be granted for 3. Authorisations for the export of non-
specific items and end-users. The listed items shall be granted for specific
authorisations shall be granted by the items and end-users. The authorisations Can accept COMs proposal with alternative SE
competent authority of the Member shall be granted by the competent simplified wording as follows:
State where the exporter is resident or authority of the Member State where the 3. Export of non-listed dual-use items can only be
established or, in case when the exporter is resident or established or, in subject to individual export authorisation.
exporter is a person resident or case when the exporter is a person
established outside the Union, by the resident or established outside the Union, DE
competent authority of the Member by the competent authority of the Member Delete COM`s proposal
State where the items are located. The State where the items are located. The Explanation: This is already regulated in art. 10.2
authorisations shall be valid authorisations shall be valid throughout and 10.3.
throughout the Union. The the Union. The authorisations shall be
authorisations shall be valid for one valid for two years, and may be renewed DK
year, and may be renewed by the by the competent authority. 3. Authorisations for the export of non-
competent authority. listed items shall be granted for specific
items and end-users. The authorisations
shall be granted by the competent authority
of the Member State where the exporter is
resident or established or, in case when the
exporter is a person resident or established
outside the Union, by the competent
authority of the Member State where the
items are located. The authorisations shall
be valid throughout the Union. The
authorisations shall in principle be valid for
one two years, unless decided differently by
the competent authority, and may be
renewed by the competent authority.
Page 4 of 14
Note: Denmark believes that the deleted text is
redundant since the relevant situations would be
caught by the revised exporter definition.
Article 4.4
4. A Member State which imposes an authorisation FI
64. A Member State which imposes an
authorisation requirement, in application of requirement, in application of paragraphs 1, 2 and 3
paragraphs 1 to 5, 2 and 3 on the export of a on the export of a dual-use item not listed in Annex
dual-use item not listed in Annex I, shall, I, shall immediately inform the other Member
where appropriate, immediately inform the States and the Commission and provide them with
other Member States and the Commission the relevant information, in particular concerning
and provide them with the relevant the items and end-users concerned. The other
information, in particular concerning
Member States shall give all due consideration to
the items and end-users concerned. The
other Member States shall give all due this information and shall inform their customs
consideration to this information and administration and other relevant national
shall make known within 10 working authorities accordingly. The Commission and the
days any objections they may have to Member States will maintain an updated register of
the imposition of such an authorisation requirements in place.
authorisation requirement. In
exceptional cases, any Member State 64. A Member State which imposes an DE
consulted may request an extension of authorisation requirement, in application of
the 10-day period. However, the paragraphs 1 and 2 to 5, 2 and 3 on the export
extension may not exceed 30 working of a dual-use item not listed in Annex I A, shall,,
days. where appropriate, where appropriate,
immediately inform the other Member States
and the Commission and provide them, as far
as possible, with the relevant information, in
particular concerning the items and end-users
concerned . The other Member States shall give
all due consideration to this information and shall
make known within 10 working days any
objections they may have to the imposition of such
an authorisation requirement. In exceptional cases,
any Member State consulted may request an
extension of the 10-day period. However, the
extension may not exceed 30 working days.
Delete - Denmark believes that article 4.4 is DK
irelevant and should be deleted. We further believe
that the proposed text will add significant
administrative burdens on the authorities with not
enough security benefits. Information obout catch-
all denials is currently shared and should of course
Page 5 of 14
be continued.
64. A Member State which imposes an SE
authorisation requirement, in application of
paragraphs 1 to 5, 2 and 3 on the export of a
dual-use item not listed in Annex I, shall, where
appropriate, immediately inform the other
Member States and the Commission and provide
them with the relevant information, in particular
concerning the items and end-users
concerned . The other Member States shall give
all due consideration to this information
and shall make known within 10 working days
any objections they may have to the imposition of
such an authorisation requirement. In exceptional
cases, any Member State consulted may request an
extension of the 10-day period. However, the
extension may not exceed 30 working days.
If no objections are received, the Member If no objections are received, the Member States DE, SE
If no objections are received, the
States consulted shall be considered to consulted shall be considered to have no objection
Member States consulted shall be
have no objection and shall impose and shall impose authorisations requirements for
considered to have no objection and
authorisations requirements for all
shall impose authorisations all "essentially similar transactions". They
"essentially similar transactions"
requirements for all "essentially shall inform their customs administration and
meaning an item with essentially
similar transactions". They shall inform other relevant national authorities about the
identical parameters or technical
their customs administration and other authorisations requirements .
characteristics to the same end user
relevant national authorities about the
or consignee. They shall inform their
authorisations requirements .
customs administration and other
relevant national authorities about the
authorisations requirements. The
Commission shall publish in the
Official Journal of the European
Union a short description of the
case, the reasoning of the decision
and indicate, if applicable, the new
authorisation requirement in a new
Section E of Annex II.
Page 6 of 14
If objections are received from any If objections are received from at least Delete COM proposal DE, DK, SE
consulted Member State, the four Member States representing at
requirement for authorisation shall be least 35 % of the population of the
revoked unless the Member State Union, the requirement for authorisation
which imposes the authorisation shall be revoked unless the Member State
requirement considers that an export which imposes the authorisation
might prejudice its essential security requirement considers that an export
interests. In that case, that Member might prejudice its essential security
State may decide to maintain the interests or its human rights
authorisation requirement. This obligations, hi that case, that Member
should be notified to the Commission State may decide to maintain the
and the other Member States without authorisation requirement. This should be
delay. notified to the Commission and the other
Member States without delay.
Delete COM proposal DE, DK, SE
The Commission and the Member The Commission and the Member States
States will maintain an updated shall maintain an updated register of Explanation: The authorization requirement
register of authorisation requirements authorisation requirements in place. The applies to non-listed items in individual
in place. data available in that register shall transactions that shall be reviewed if there are
be included in the report to the
concerns about the end-user. However, at the time
European Parliament, referred to in
Article 24(2), and shall be accessible of constituting the authorization requirement, the
to the public. transaction has not been fully assessed yet. Hence,
there is no added value yet in imposing such
authorization requirement across all EU-MS.
Instead, this would create administrative burden
and bureaucratic procedures. In case of critical
transactions, denials are issued.
Article 4.5
75. The provisions of Article 13 15(1), (2) and Accept COM’ s proposal FI,DE, SE
(5) to (7) shall apply to cases concerning
dual-use items not listed in Annex I.
Article 4.6
Page 7 of 14
Accept COM’ s proposal FI, DE, SE
86. This Regulation is without prejudice to
the right of Member States to take national
measures under Article 11 10 of Regulation
(EU) 2015/479 (EEC) No 2603/69.
Article 8
1. A Member State may prohibit or Accept COM’ s proposal
impose an authorisation requirement on SE
the export of dual-use items not listed in
Annex I for reasons of public security, for
FI may make a proposal depending on the
1. A Member State may prohibit or impose an human rights considerations or for the
prevention of acts of terrorism. discussion on cyber-surveillance technology FI
authorisation requirement on the export of
dual-use items not listed in Annex I for
reasons of public security or for human 1. A Member State may prohibit or impose an
rights considerations. authorisation requirement on the export of dual-use
items not listed in Annex I for reasons of public
DE
security including for the prevention of acts
of terrorism, or for human rights considerations
Accept COM’ s proposal
2. Member States shall notify the
Commission and the other Member
States of any measures adopted pursuant to
DE, SE
paragraph 1 immediately after their adoption
and indicate the precise reasons for the
measures.
3. Member States shall also immediately
notify the Commission and the other Accept COM’ s proposal DE, SE
Member States of any modifications to
measures adopted pursuant to paragraph 1.
4. The Commission shall publish the
measures notified to it pursuant to
Accept COM’ s proposal DE, SE
paragraphs 2 and 3 in the C series of the
Official Journal of the European Union.
Article 2.6
Accept COM’ s proposal FI, DE, SE
56. ‘brokering services’ shall mean:
No amendments.
Page 8 of 14
(a) the negotiation or arrangement of
transactions for the purchase, sale or
supply of dual-use items from a third
country to any other third country, or
(b) the selling or buying of dual-use
items that are located in third
countries for their transfer to another
third country.
For the purposes of this Regulation
the sole provision of ancillary
services is excluded from this
definition. Ancillary services are
transportation, financial services,
insurance or re-insurance, or general
advertising or promotion;
Article 2.7
67. ‘broker’ shall mean any natural or legal No amendments. 7. ‘broker’ shall mean any natural or legal person or FI
person or partnership resident or established partnership resident or established in a Member
in a Member State of the State of the Union that carries out
Community Union , or a legal person or
brokering services from the Union into the territory
partnership owned or controlled by
such person, or another person that of a third country;
carries out brokering services defined
under point 5 from the Community Union 7. ‘broker’ shall mean any natural or legal person or DE
into the territory of a third country; partnership resident or established in a Member
State of the Community Union , or a legal
person or partnership owned or controlled by such
person, or another person that carries out
brokering services defined under point 5 from
the Community Union into the territory of a
third country;
67. ‘broker’ shall mean any natural or legal person SE
or partnership resident or established in a Member
State of the Community Union , , or a legal
person or partnership owned or controlled by such
person, or another person that carries out
brokering services defined under point 5 from
Page 9 of 14
the Community Union , into the territory of a
third country;
Article 5
Accept COM’ s proposal FI
1. An authorisation shall be required for
brokering services of dual-use items listed in
Annex I if the broker has been informed by Delete - Denmark sees no need to make any DK
the competent authorities authority of the
changes to the current articles concerning
Member State in which he is resident or
established that the items in question are or brokering controls. We see no need to expand the
may be intended, in their entirety or in part, current controls also to include non-listed items.
for any of the uses referred to in Article 4(1).
1. An authorisation shall be required for brokering DE
services of dual-use items listed in Annex I A if
the broker has been informed by the competent
authorities authority of the Member State in
which he is resident or established that the items in
question are or may be intended, in their entirety or
in part, for any of the uses referred to in Article 4(1).
Note: Depending on the outcome of discussions on
Annex IB and art. 4, DE reserves the right for
further changes, in particular the inclusion of
cyber-surveillance items. Also, the expansion to
non-listed items is interdependant with the
regulation of art. 4.1
1.An authorisation shall be required for brokering SE
services of dual-use items if the broker has been
informed by the competent authority that the items
in question are or may be intended, in their entirety
or in part, for any of the uses referred to in Article
4(1) a-c.
Note: Can accept COM:s proposal, provided non-
EU brokers are excluded from the definition of
`broker´ in the definition of the regulation and
that Article 4(1) d and e are excluded
Accept COM’ s proposal FI
2. If a broker is aware that the dual-use items
2. If a broker is aware that the dual-
Page 10 of 14
