wk05689-en18
Dieses Dokument ist Teil der Anfrage „working papers dual-use regulation“
Brussels, 14 May 2018
WK 5689/2018 INIT
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WORKING PAPER
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CONTRIBUTION
From: SE Delegation
To: Working Party on Dual-Use Goods
Subject: Swedish comments regarding articles 2.6-2.7, 2,10, 4.1-4.6, 5, 6 and 8,
Commission Regulation 428/2009 (recast)
With a view to the 16 + 17 May Dual Use meeting, delegations will find attached Swedish written
comments on articles 2.6-2.7, 2,10, 4.1-4.6, 5, 6 and 8, Commission Regulation 428/2009 (recast).
WK 5689/2018 INIT
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The dual-use recast commission proposal.
Written comments by Sweden regarding article 2.6-2.7, 2,10, 4.1-4.6, 5, 6 and 8 (for discussion in the Dual Use Working Party).
Sweden reserves its right to change comments and positions at a later stage.
Art. 2.6 (definition of “brokering services”)
Commissions proposal (Recast) European Parliament - January 2018 Sweden
56. ‘brokering services’ shall mean: Can accept COM:s proposal
(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;
Comments
- No changes compared to Council Regulation (EC) No 428/2009.
Main rationales
Art. 2.7 (definition of “broker”)
Commissions proposal (Recast) European Parliament - January 2018 Sweden
Cannot accept COM:s proposal.
67. ‘broker’ shall mean any natural or legal Sweden proposes the following wording:
person or partnership resident or
established in a Member State of the Community 67. ‘broker’ shall mean any natural or legal person
Union , , or a legal person or or partnership resident or established in a Member
partnership owned or controlled by such person, State of the Community Union , , or a
or another person that carries out legal person or partnership owned or controlled by
brokering services defined under point 5 from such person, or another person that carries out
the Community Union , into the territory brokering services defined under point 5
of a third country; from the Community Union , into the
territory of a third country;
Comments
- Delete the phrase “or a legal person or partnership owned or controlled by such person, or another person” imposing extra territorial jurisdiction.
Main rationales
- The proposed extra territorial control on brokers outside EU will be difficult to enforce from a legal point of view.
- The obligation for MS competent authorities to inform brokers on authorization requirements according article 5.1 will not be adequate if the
broker is outside EU and it is unclear if brokers outside EU delivering brokering services between 3rd countries can apply for a licence at all.
- The obligation for brokers to notify MS competent authorities if they are aware of article 4(1) situations according to article 5.2 will not be
adequate if the broker is outside EU since MS competent authorities lack authority to make the brokering service performed by non-EU brokers
subject to authorization.
- The obligations put on the EU-parent company, i.e. full control of and responsibility for any business transaction performed by a separate legal
entity in a 3rd country, is not proportionate.
- Narrowing down the obligations put on the EU-parent to situations such as when the entity outside EU acts under the direction of the EU-parent
would be more proportionate and relevant, but defining non-EU entities as brokers in the meaning of the regulation would still be in conflict with
the obligations set up in article 5.1 and 5.2.
Art. 2.10 (clarification of the definition of transit)
Commissions proposal (Recast) European Parliament - January 2018 Sweden
710.‘transit’ shall mean a transport of non-
Community non-Union , dual-use items In order to avoid inconsistency with the legal
entering and passing through the customs territory term “transit” as defined in the Union Customs
of the Community Union , with a destination Code, it could be contemplated that the term
“transhipment” is used throughout the
outside the Union , Community; including Regulation.
items:
(a) which are placed under the external transit
(a) which are placed under the external transit procedure, as defined in Article 226 in the Union
procedure and only pass through the customs Customs Code, and only pass through the
territory of the Union; customs territory of the Union;
(b) which are trans-shipped within, or directly re- (b) which are trans-shipped within, or directly
exported from, a free zone; re-exported from, a free zone;
(c) which are in temporary storage and are directly (c) which are in temporary storage and are
re-exported from a temporary storage facility; directly re-exported from a temporary storage
(d) which were brought into the customs territory facility;
of the Union on the same vessel or aircraft that will (d) which were brought into the customs
take them out of that territory without unloading; territory of the Union on the same vessel or
aircraft that will take them out of that territory
without unloading;
Comments
- Swedish Customs promotes the inclusion of references to the Union Customs Code (EU) 952/2013, to avoid confusion in the definition of basic
concepts
- Regarding Article 2.10 (a), the inclusion of a reference to article 226 in the Union Customs Code, (EU) 952/2013, would clarify that 2.10 (a)
refers to the customs procedure transit.
- It could be contemplated to add “exiting” to the wording “entering, passing through and exiting the customs territory…”) alt. only “passing
through”.
Art. 4.1 (review of the scope of application of catch-all controls)
Commissions proposal (Recast) European Parliament - January 2018 Sweden
1. An authorisation shall be required for the 1. Can accept COM:s proposal
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, (a) Can accept COM:s proposal
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.;
(b) for a military end-use if the purchasing (b) Can accept COM:s proposal
country or country of destination is
subject to an arms embargo;
(c) Can accept COM:s proposal
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 Member
State without authorisation or in violation of an
authorisation prescribed by national legislation
of that Member State.;
(d) for use by persons complicit in or (d) Cannot accept COM:s proposal
responsible for directing or committing serious
violations of human rights or international
humanitarian law in situations of armed conflict
or internal repression in the country of final
destination, as identified by relevant public
international institutions, or European or
national competent authorities, and where there
is evidence of the use of this or similar items for
directing or implementing such serious violations
by the proposed end-user;
(e) for use in connection with acts of terrorism. (e) Cannot accept COM:s proposal
Comments
- Comments on 4.1 (d): Cannot accept COM:s proposal. Delete proposal (d) based on the rationales provided below.
- Comments on 4.1 (e): Cannot accept COM:s proposal. The proposal (e) need to be further discussed see the rationales provided below.
Main rationales for comments on 4.1 (d).
1. The proposal does not live up to the need for legal clarity and predictability. Introducing the “catch all” instrument on HR/IHL would be very
difficult to define and apply. An unpredictable and obscure clause could undermine the respect for the regulation itself.
2. The EU trade policy’s aim is to foster competitiveness and reduce distortions to trade”. An EU catch all-provision that are not in accordance with
internationally applied dual use controls, means distortions to trade for EU companies.
3. Rather than a vague HR/IHL catch all clause in a non-proliferation instrument, the EU should reinforce its Human Rights and IHL diplomacy
strength through enhancing existing EU external policy instruments such as restrictive measures, including imposed restrictions on the export of
equipment for monitoring communications that might be used for internal repression (e.g. Syria, Iran, Venezuela and recently Burma).
Main rationales for comments on 4.1 (e).
- Sweden recognize that all efforts to counter terrorism are of great importance. Article 4.1 (e) in combination with the vague definition of act of
terrorism does however raise major concerns about the vast scope of the control, making it virtually impossible to single out sensitive products to
keep an eye on, and the difficulties to implement the control for authorities and exporters.
Art. 4.2 (exporter's obligation to exercise due diligence)
Commissions proposal (Recast) European Parliament - January 2018 Sweden
4 2. If an exporter, under his obligation to 4 2. If an exporter, under his obligation to
exercise due diligence, is aware that dual-use exercise due diligence, is aware that dual-use
items which he proposes to export, not listed in items which he proposes to export, not listed in
Annex I, are intended, in their entirety or in Annex I, are intended, in their entirety or in
part, for any of the uses referred to in part, for any of the uses referred to in
paragraphs 1, 2 and 3, he must notify the paragraphs 1, 2 and 3, he must notify the
competent authority authorities referred to competent authority authorities referred to
in paragraph 1, which will decide whether or not in paragraph 1, which will decide whether or not
it is expedient to make the export concerned it is expedient to make the export concerned
subject to authorisation. subject to authorisation.
5. A Member State may adopt or maintain 5 3 A Member State may adopt or maintain
national legislation imposing an authorization national legislation imposing an authorization
requirement on the export of dual-use items not requirement on the export of dual-use items not
listed in Annex I if the exporter has grounds for listed in Annex I if the exporter has grounds for
suspecting that those items are or may be suspecting that those items are or may be
intended, in their entirety or in part, for any of intended, in their entirety or in part, for any of
the uses referred to in paragraph 1. the uses referred to in paragraph 1.
Comments
- Cannot accept COM:s proposal. The proposal need to be further discussed.
Main rationales
- The proposal adds burden on industry and lacks legal clarity. The concept of “due diligence” is a debatable notion not legally clear and would not
live up to high demands of foreseeability of a provision that – if breached – triggers penal sanctions.
- “Due diligence” is defined as “an act with a certain standard of care” – not a legal obligation.
Art. 4.3 (clarification of catch-all controls: definition and scope)
Commissions proposal (Recast) European Parliament - January 2018 Sweden
3. Authorisations for the export of non-listed Can accept COM:s proposal with alternative
items shall be granted for specific items and simplified wording as follows:
end-users. The authorisations shall be granted
by the competent authority of the Member State 3. Export of non-listed dual-use items can only
where the exporter is resident or established or, be subject to individual export authorisation.
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 be valid for one year, and
may be renewed by the competent authority.
Comments
- Suggest alternative wording.
Main rationales
- Almost all information in COM:s proposal duplicates the text in article 2.11 and article 10. The text may thus be simplified. Validity periods will be
synchronised for all individual export authorisation.
Art. 4.4 (question of consultation procedure and register of catch-all controls)
Commissions proposal (Recast) European Parliament - January 2018 Sweden
64. A Member State which imposes an Cannot accept COM:s proposal.
authorisation requirement, in application of
paragraphs 1 to 5, 2 and 3 on the export of Sweden’s counter proposal:
a dual-use item not listed in Annex I, shall, where
appropriate, immediately inform the other 64. A Member State which imposes an
authorisation requirement, in application of
Member States and the Commission and
paragraphs 1 to 5, 2 and 3 on the export
provide them with the relevant information, in
of a dual-use item not listed in Annex I, shall,
particular concerning the items and end-users
where appropriate, immediately inform
concerned . The other Member States shall give
the other Member States and the Commission
all due consideration to this information
and shall make known within 10 working days
and provide them with the relevant
information, in particular concerning the items
any objections they may have to the imposition of
and end-users
such an authorisation requirement. In exceptional
cases, any Member State consulted may request concerned . The other Member States shall
an extension of the 10-day period. However, the give all due consideration to this information
extension may not exceed 30 working days. and shall make known within 10 working
days any objections they may have to the
imposition of such an authorisation requirement.
If no objections are received, the Member In exceptional cases, any Member State
States consulted shall be considered to have no consulted may request an extension of the 10-
objection and shall impose authorisations day period. However, the extension may not
requirements for all "essentially similar
exceed 30 working days.
transactions". They shall inform their
customs administration and other relevant
national authorities about the authorisations
If no objections are received, the Member
States consulted shall be considered to have no
requirements . objection and shall impose authorisations
requirements for all "essentially similar
If objections are received from any consulted
transactions". They shall inform their
Member State, the requirement for authorisation
customs administration and other relevant
shall be revoked unless the Member State which
imposes the authorisation requirement considers national authorities about the authorisations
that an export might prejudice its essential requirements .
security interests. In that case, that Member
State may decide to maintain the authorisation If objections are received from any consulted
requirement. This should be notified Member State, the requirement for authorisation
to the Commission and the other Member States shall be revoked unless the Member State which
without delay. The Commission and the Member imposes the authorisation requirement considers
States will maintain an updated register of that an export might prejudice its essential
authorization requirements in place. security interests. In that case, that Member
State may decide to maintain the authorisation
requirement. This should be notified
to the Commission and the other Member States
without delay. The Commission and the Member
States will maintain an updated register of
authorization requirements in place.
Comments
- Cannot accept COM:s proposal. The proposal on extended consultation obligation should be deleted.
Main rationales
- SE opposes the mandatory consultation procedure which would mean that SE is bound by other countries' catch all decisions unless objections
are made within 10 days. SE is questioning that this formula of automatically binding other MSs by one single MS’s decision is in accordance with
EU-law and the principle of national competence in issuing individual authorisations based on foreign and security policy risk assessments.
- The extended consultation obligation would create a significant administrative burden for competent authorities and the associated mechanism to
impose authorisations requirements for all essentially similar transactions constitutes a restriction in the Member States' autonomy in licensing
matters. The heavily widened "catch all" rule (4.1) makes Article 4.4 even more inappropriate.
- A MS decision to impose catch all may be based on essential sensitive information, which cannot be shared with other MS competent authorities.
The later would thus be obliged to impose authorisations requirements lacking essential information about the basis of such actions.
- Practical application difficulties could also be foreseen in identifying essentially similar transactions since registers of authorization requirements
cannot be expected to be made public. This is true for catch all denials as well but those cases are less in number, more urgent and competent
authorities, customs administration and other relevant national authorities do already today have full access to the denial information through
DUeS.
- The register would tend to grow out of date as there is no de-listing procedure proposed.
