wk05675-en18
Dieses Dokument ist Teil der Anfrage „working papers dual-use regulation“
Brussels, 14 May 2018
WK 5675/2018 INIT
LIMITE
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CFSP/PESC
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WORKING PAPER
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CONTRIBUTION
From: DK Delegation
To: Working Party on Dual-Use Goods
Subject: Danish comments on the Commission proposal for Regulation 428/2009 (recast)
With a view to the 16 + 17 May Dual Use meeting, delegations will find attached Danish comments.
WK 5675/2018 INIT
LIMITE EN
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
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.;
(b) for a military end-use if the
purchasing country or country
of destination is subject to an
arms embargo;
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
Page 1 of 11
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) with regard to cyber-surveillance Denmark reserves the
(d) for use by persons complicit
in or responsible for directing or items, for use by natural or legal rights for comments at
committing serious violations of persons in connection with violations of a later stage.
human rights or international international human rights law or
humanitarian law in situations international humanitarian law in
of armed conflict or internal countries where serious violations of
repression in the country of final human rights have been identified by
destination, as identified by
the competent bodies of the UN, the
relevant public international
institutions, or European or Council of Europe, the Union, or
national competent authorities, national competent authorities, and there
and where there is evidence of is reason to suspect that this or similar
the use of this or similar items items may be used for the purpose of
for directing or implementing directing or implementing such violations
such serious violations by the by the proposed end-user:
proposed end-user;
(e) for use in connection with
acts of terrorism. Deleted
Article 4.2
42. If an exporter, under his obligation 2. If an exporter, becomes aware while
to exercise due diligence, is aware that exercising due diligence that dual-use
dual-use items which he proposes to items not listed in Annex I which he or
she proposes to export, may be
export, not listed in Annex I, are intended,
intended, in then entirety or in part, for
in their entirety or in part, for any of the any of the uses referred to in paragraph 1.
uses referred to in paragraphs 1, 2 and 3, he or she must notify the competent
he must notify the competent authority of the Member State in
authority authorities referred to in which he or she is established or
paragraph 1, which will decide whether or resident in, which will decide whether or
not it is expedient to make the export not it is expedient to make the export
concerned subject to authorisation.
concerned subject to authorisation.
5. A Member State may adopt or maintain
national legislation imposing an
Page 2 of 11
authorisation requirement 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, FI
process through which enterprises
can identify, prevent, mitigate and Not accept EP’ s proposal BE
account for how they address their
actual and potential adverse To be discussed in conjunction with article 4.2 since SE, FI, RO, FR
impacts as an integral part of 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?
Denmark agrees with the UK.
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.
Page 3 of 11
Article 4.3
3. Authorisations for the export of 3. Authorisations for the export of non-listed Denmark believes that
non-listed items shall be granted for 3. Authorisations for the export of non- items shall be granted for specific items and the deleted text is
specific items and end-users. The listed items shall be granted for specific end-users. The authorisations shall be redundant since the Formatted: Strikethrough
authorisations shall be granted by items and end-users. The authorisations granted by the competent authority of the relevant situations
the competent authority of the shall be granted by the competent Member State where the exporter is resident would be caught by the
Member State where the exporter is authority of the Member State where the or established or, in case when the exporter revised exporter
resident or established or, in case exporter is resident or established or, in is a person resident or established outside definition.
when the exporter is a person case when the exporter is a person resident the Union, by the competent authority of the
resident or established outside the or established outside the Union, by the Member State where the items are located.
Union, by the competent authority of competent authority of the Member State The authorisations shall be valid throughout
the Member State where the items where the items are located. The the Union. The authorisations shall in
are located. The authorisations shall authorisations shall be valid throughout principle be valid for one two years, unless
be valid throughout the Union. The the Union. The authorisations shall be decided differently by the competent
authorisations shall be valid for one valid for two years, and may be renewed authority, and may be renewed by the
year, and may be renewed by the by the competent authority. competent authority.
competent authority.
Article 4.4
Delete Denmark believes that
64. A Member State which imposes an
article 4.4 is irelevant
authorisation requirement, in application
and should be deleted.
of paragraphs 1 to 5, 2 and 3 on the export
We further believe that
of a dual-use item not listed in Annex I,
the proposed text will
shall, where
add significant
appropriate, immediately inform the
administrative
other Member States and the Commission
burdens on the
and provide them with the relevant
authorities with not
information, in particular
enough security
concerning the items and end-users
benefits. Information
concerned. The other Member States
obout catch-all denials
shall give all due consideration to this
is currently shared and
information and shall make known
should of course be
within 10 working days any
continued.
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
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period. However, the extension may
not exceed 30 working days.
If no objections are received, the Member
States consulted shall be considered to
If no objections are received, the have no objection and shall impose
Member States consulted shall be authorisations requirements for all
considered to have no objection and "essentially similar transactions"
shall impose authorisations meaning an item with essentially
requirements for all "essentially identical parameters or technical
similar transactions". They characteristics to the same end user
shall inform their customs administration or consignee. They shall inform their
and other relevant national customs administration and other relevant
authorities about the authorisations national authorities about the
requirements . 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.
If objections are received from at least
If objections are received from any four Member States representing at
consulted Member State, the least 35 % of the population of the
requirement for authorisation shall Union, the requirement for authorisation
be revoked unless the Member State shall be revoked unless the Member State
which imposes the authorisation which imposes the authorisation
requirement considers that an requirement considers that an export
export might prejudice its essential might prejudice its essential security
security interests. In that case, that interests or its human rights
Member State may decide to obligations, hi that case, that Member
maintain the authorisation State may decide to maintain the
requirement. This should be notified authorisation requirement. This should be
to the Commission and the other notified to the Commission and the other
Member States without delay. Member States without delay.
The Commission and the Member States
The Commission and the Member shall maintain an updated register of
States will maintain an updated authorisation requirements in place. The
Page 5 of 11
register of authorisation data available in that register shall
requirements in place. be included in the report to the
European Parliament, referred to in
Article 24(2), and shall be accessible
to the public.
Article 4.5
75. The provisions of Article 13 15(1), (2)
and (5) to (7) shall apply to cases
concerning dual-use items not listed in
Annex I.
Article 4.6
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
1. A Member State may prohibit or impose
impose an authorisation requirement on
an authorisation requirement on the
the export of dual-use items not listed in
export of dual-use items not listed in
Annex I for reasons of public security, for
Annex I for reasons of public security or
human rights considerations or for the
for human rights considerations.
prevention of acts of terrorism.
2. Member States shall notify the
Commission and the other Member
States of any measures adopted pursuant
to 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
Member States of any modifications to
measures adopted pursuant to paragraph
1.
Page 6 of 11
4. The Commission shall publish the
measures notified to it pursuant to
paragraphs 2 and 3 in the C series of the
Official Journal of the European Union.
Article 2.6
56. ‘brokering services’ shall mean:
No amendments.
(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;
Page 7 of 11
Article 2.7
67. ‘broker’ shall mean any natural or No amendments.
legal person 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 the
Community Union into the territory of a
third country;
Article 5
Page 8 of 11
Delete
1. An authorisation shall be required for
brokering services of dual-use items listed
in Annex I 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).
2. If a broker is aware that the dual-use
items listed in Annex I for which he
proposes brokering services are intended,
in their entirety or in part, for any of the Denmark sees no need
uses referred to in Article 4(1), he must
notify the competent authorities to make any changes
authority which will decide whether or to the current articles
not it is expedient to make such brokering concerning brokering
services subject to authorisation. 2. If a broker is aware that the dual- controls. We see no
use items for which he or she proposes need to expand the
2. A Member State may extend the
brokering services are intended, in their current controls also to
application of paragraph 1 to non-listed
entirety or in part, for any of the uses include non-listed
dual-use items for uses referred to in
referred to in Article 4(1), he or she must
Article 4(1) and to dual-use items for items.
notify the competent authority which
military end use and destinations referred
shall make such brokering services
to in Article 4(2).
subject to authorisation.
3. A Member State may adopt or maintain
national legislation imposing an
authorisation requirement on the
brokering of dual-use items, if the broker
has grounds for suspecting that these items
are or may be intended for any of the uses
referred to in Article 4(1).
4. The provisions of Article 8(2), (3) and
(4) shall apply to the national measures
referred to in paragraphs 2 and 3 of this
Article.
Article 2.10
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