wk05669-en18
Dieses Dokument ist Teil der Anfrage „working papers dual-use regulation“
Brussels, 14 May 2018
WK 5669/2018 INIT
LIMITE
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CFSP/PESC
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WORKING PAPER
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CONTRIBUTION
From: DE Delegation
To: Working Party on Dual-Use Goods
Subject: German comments to the Commission proposal for recast of Reg. 428/2009 (Dual-
use)
With a view to the 16 + 17 May Dual Use meeting, delegations will find attached German comments on
cluster 4 of the Commission proposal for Reg. 428/2009 (recast).
WK 5669/2018 INIT
LIMITE EN
1 09.05.2018
German comments to the COM proposal for recast of Reg. 428/2009 (Dual-use)
Germany hereby submits proposals for changes to the articles contained in the 4th cluster. Germany reserves the right for further comments.
COM proposal EP text DE text
Article 4 – catch-all
1. An authorisation shall be required for the export
Accept COM proposal.
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, Accept COM 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 country Accept COM proposal.
or country of destination is subject to an arms
embargo;
3. (c) An authorisation shall also be required for the Accept COM proposal.
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
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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 responsible (d) with regard to cyber-surveillance (d) for use by persons complicit in or
for directing or committing serious violations of items, for use by natural or legal responsible for directing or committing serious
human rights or international humanitarian law in persons in connection with violations of violations of human rights or international
situations of armed conflict or internal repression in international human rights law or humanitarian law in situations of armed conflict
the country of final destination, as identified by international humanitarian law in or internal repression in the country of final
countries where serious violations of destination, as identified by relevant public
relevant public international institutions, or
human rights have been identified by international institutions, or European or
European or national competent authorities, and the competent bodies of the UN, the national competent authorities, and where
where there is evidence of the use of this or similar Council of Europe, the Union, or there is evidence of the use of this or similar
items for directing or implementing such serious national competent authorities, and there items for directing or implementing such
violations by the proposed end-user; is reason to suspect that this or similar serious violations by the proposed end-user;
items may be used for the purpose of
directing or implementing such violations
by the proposed end-user;
(e) for use in connection with acts of terrorism. deleted (e) for use in connection with acts of terrorism.
42. If an exporter, under his obligation to exercise
2. If an exporter, becomes aware while 42. If an exporter, becomes aware while
due diligence,is aware that dual-use items which
exercising due diligence that dual-use exercising under his obligation to exercise
he proposes to export, not listed in Annex I, are
items not listed in Annex I which he or due diligence, is aware that dual-use items
intended, in their entirety or in part, for any of the
she proposes to export, may be not listed in Annex I A which he proposes to
uses referred to in paragraphs 1, 2 and 3, he must
intended, in their entirety or in part, for export, not listed in Annex I, are intended, in
notify the competent authority authorities
any of the uses referred to in paragraph their entirety or in part, for any of the uses
referred to in paragraph 1, which will decide
1, he or she must notify the competent referred to in paragraphs 1, 2 and 3, he must
whether or not it is expedient to make the export
authority of the Member State in which notify the competent authority authorities
concerned subject to authorisation.
he or she is established or resident in, referred to in paragraph 1, which will decide
which will decide whether or not it is whether or not it is expedient to make the
expedient to make the export concerned export concerned subject to authorisation.
subject to authorisation.
5. A Member State may adopt or maintain national
3. Authorisations for the export of non- Accept COM proposal.
legislation imposing an authorisation requirement
listed items shall be granted for specific
on the export of dual-use items not listed in Annex I Explanation: This can be regulated by MS on
items and end-users. The authorisations
if the exporter has grounds for suspecting that
3 09.05.2018
those items are or may be intended, in their entirety shall be granted by the competent basis of art. 8.
or in part, for any of the uses referred to in authority of the Member State where the
paragraph 1. 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 be valid for two years, and may be
renewed by the competent authority.
3. Authorisations for the export of non-listed items
3. Authorisations for the export of non-listed
shall be granted for specific items and end-users.
items shall be granted for specific items and
The authorisations shall be granted by the
end-users. The authorisations shall be granted
competent authority of the Member State where the
by the competent authority of the Member
exporter is resident or established or, in case when
State where the exporter is resident or
the exporter is a person resident or established
established or, in case when the exporter is a
outside the Union, by the competent authority of
person resident or established outside the
the Member State where the items are located. The
Union, by the competent authority of the
authorisations shall be valid throughout the Union.
Member State where the items are located.
The authorisations shall be valid for one year, and
The authorisations shall be valid throughout
may be renewed by the competent authority.
the Union. The authorisations shall be valid for
one year, and may be renewed by the
competent authority.
Explanation: This is already regulated in art.
10.2 and 10.3.
64. A Member State which imposes an 64. A Member State which imposes an
authorisation requirement, in application of authorisation requirement, in application of
paragraphs 1 to 5, 2 and 3 on the export of a paragraphs 1 and 2 to 5, 2 and 3 on the
dual-use item not listed in Annex I, shall, where export of a dual-use item not listed in Annex I
appropriate, immediately inform the other A, shall,, where appropriate, where
Member States and the Commission and provide appropriate, immediately inform the other
them with the relevant information, in particular Member States and the Commission and
concerning the items and end-users concerned . provide them, as far as possible, with the
The other Member States shall give all due relevant information, in particular concerning
4 09.05.2018
consideration to this information and shall make the items and end-users concerned . The
known within 10 working days any objections they other Member States shall give all due
may have to the imposition of such an authorisation consideration to this information and shall
requirement. In exceptional cases, any Member make known within 10 working days any
State consulted may request an extension of the objections they may have to the imposition of
10-day period. However, the extension may not such an authorisation requirement. In
exceed 30 working days. 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 States If no objections are received, the Member
If no objections are received, the
consulted shall be considered to have no objection States consulted shall be considered to have
Member States consulted shall be
and shall impose authorisations requirements for all no objection and shall impose authorisations
considered to have no objection and
"essentially similar transactions". They shall requirements for all "essentially similar
shall impose authorisations requirements
inform their customs administration and other transactions". They shall inform their
for all ‘essentially similar transactions’
relevant national authorities about the customs administration and other relevant
meaning an item with essentially
authorisations requirements . national authorities about the authorisations
identical parameters or technical
requirements .
characteristics to the same end user
or consignee. They shall inform their
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.
new new
If objections are received from at least
If objections are received from any consulted If objections are received from any consulted
four Member States representing at
Member State, the requirement for authorisation Member State, the requirement for
least 35 % of the population of the
shall be revoked unless the Member State which authorisation shall be revoked unless the
Union, the requirement for authorisation
imposes the authorisation requirement considers Member State which imposes the authorisation
shall be revoked unless the Member
that an export might prejudice its essential security requirement considers that an export might
State which imposes the authorisation
interests. In that case, that Member State may prejudice its essential security interests. In that
requirement considers that an export
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decide to maintain the authorisation requirement. might prejudice its essential security case, that Member State may decide to
This should be notified to the Commission and the interests or its human rights maintain the authorisation requirement. This
other Member States without delay. obligations. In that case, that Member should be notified to the Commission and the
State may decide to maintain the other Member States without delay.
authorisation requirement. This should
be notified to the Commission and the
other Member States without delay.
The Commission and the Member States will The Commission and the Member States will
The Commission and the Member States
maintain an updated register of authorisation maintain an updated register of authorisation
shall maintain an updated register of
requirements in place. requirements in place.
authorisation requirements in place. The
data available in that register shall be
included in the report to the European Explanation: The authorization requirement
Parliament, referred to in paragraph 2 applies to non-listed items in individual
of Article 24, and shall be accessible transactions that shall be reviewed if there are
to the public. concerns about the end-user. However, at the
time of constituting the authorization
requirement, the 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.
75. The provisions of Article 13 15(1), (2) and (5) to
Accept COM proposal.
(7) shall apply to cases concerning dual-use items
not listed in Annex I.
86. This Regulation is without prejudice to the right
Accept COM proposal.
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 impose an
1. A Member State may prohibit or impose 1. A Member State may prohibit or impose an
authorisation requirement on the export of dual-use
an authorisation requirement on the export of authorisation requirement on the export of dual-use
items not listed in Annex I for reasons of public security
dual-use items not listed in Annex I for items not listed in Annex I for reasons of public
or for human rights considerations.
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reasons of public security, for human rights security including for the prevention of acts of
considerations or for the prevention of acts terrorism, or for human rights considerations.
of terrorism.
2. Member States shall notify the Commission
Accept COM proposal.
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
Accept COM proposal.
Commission and the other Member States of
any modifications to measures adopted pursuant to
paragraph 1.
4. The Commission shall publish the measures
Accept COM proposal.
notified to it pursuant to paragraphs 2 and 3 in the
C series of the Official Journal of the European
Union.
Article 2.23 – Terrorist Act
23. ‘terrorist act’ shall mean a terrorist act within Deleted. Acceptance depends on revision of art. 4.1 (e)
the meaning of Article 1(3) of Common Position and 8.1.
2001/931/CFSP.
Article 2.6 – Brokering Services
56. ‘brokering services’ shall mean: No amendment. Accept COM 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
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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 – Broker
67. ‘broker’ shall mean any natural or legal person
No amendment. 7. ‘broker’ shall mean any natural or legal
or partnership resident or established in a Member
person or partnership resident or established in
State of the Community Union , or a legal
a Member State of the Community Union
person or partnership owned or controlled by such
, or a legal person or partnership owned or
person, or another person that carries out
controlled by such person, or another person
brokering services defined under point 5 from
that carries out brokering services defined
the Community Union into the territory of a
under point 5 from the Community Union
third country;
into the territory of a third country;
Article 5 – Brokering controls
1. An authorisation shall be required for brokering 1. An authorisation shall be required for
No amendment.
services of dual-use items listed in Annex I if the brokering services of dual-use items listed in
broker has been informed by the competent Annex I A if the broker has been informed by
authorities authority of the Member State in the competent authorities authority of the
which he is resident or established that the items in Member State in which he is resident or
question are or may be intended, in their entirety or established that the items in question are or
in part, for any of the uses referred to in Article may be intended, in their entirety or in part, for
4(1). 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.
2. If a broker is aware that the dual-use items listed 2. If a broker is aware that the dual-use items
2. If a broker is aware that the dual-use
in Annex I for which he proposes brokering listed in Annex I listed in Annex I A for which
items for which he or she proposes
services are intended, in their entirety or in part, for he proposes brokering services are intended,
brokering services are intended, in their
any of the uses referred to in Article 4(1), he must in their entirety or in part, for any of the uses
entirety or in part, for any of the uses
notify the competent authorities authority referred to in Article 4(1), he must notify the
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which will decide whether or not it is expedient to referred to in Article 4(1), he or she must competent authorities authority which will
make such brokering services subject to notify the competent authority which decide whether or not it is expedient to make
authorisation. shall make such brokering services such brokering services subject to
subject to authorisation. authorisation.
2. A Member State may extend the application of
2. A Member State may extend the application
paragraph 1 to non-listed dual-use items for uses
of paragraph 1 to non-listed dual-use items for
referred to in Article 4(1) and to dual-use items for
uses referred to in Article 4(1) and to dual-use
military end use and destinations referred to in
items for military end use and destinations
Article 4(2).
referred to in Article 4(2).
3. A Member State may adopt or maintain national
Accept COM proposal.
legislation imposing an authorisation requirement
on the brokering of dual-use items, if the broker has Explanation: This can be regulated by MS on
grounds for suspecting that these items are or may basis of art. 8.
be intended for any of the uses referred to in Article
4(1).
4. The provisions of Article 8(2), (3) and (4) shall
4. The provisions of Article 8(2), (3) and (4)
apply to the national measures referred to in
shall apply to the national measures referred to
paragraphs 2 and 3 of this Article.
in paragraphs 2 and 3 of this Article.
2.10 Transit Definition
10.‘transit’ shall mean a transport of non- No amendment. Germany will submit a seperate paper on this
Community non Union dual-use items issue.
entering and passing through the customs
territory of the Community Union with a
destination outside the Union Community;
including items:
(a) which are placed under the external
transit procedure and only pass through
the customs territory of the Union;
(b) which are trans-shipped within, or
directly re-exported from, a free zone;
9 09.05.2018
(c) which are in temporary storage and are
directly re-exported from a temporary
storage facility;
(d) which were brought into the customs
territory of the Union on the same vessel
or aircraft that will take them out of that
territory without unloading;
Article 6 – Transit controls
1. The transit of non-Community non-Union 1. The transit of non-Community non-
No amendment.
dual-use items listed in Annex I may be prohibited Union dual-use items listed in Annex I A
at any time by the competent authorities may be prohibited at any time by the
authority of the Member State where the competent authorities authority of the
transit occurs the items are situated if the Member State where the transit occurs the
items are or may be intended, in their entirety or in items are situated if the items are or may be
part, for uses referred to in Article 4(1). When intended, in their entirety or in part, for uses
deciding on such a prohibition the Member States referred to in Article 4(1). When deciding on
shall take into account their obligations and such a prohibition the Member States shall
commitments they have agreed to as parties to take into account their obligations and
international treaties or as members of international commitments they have agreed to as parties to
non-proliferation regimes. international treaties or as members of
international non-proliferation regimes.
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.
2. Before deciding whether or not to prohibit a 2. Before deciding whether or not to prohibit a
transit a Member State may provide that its the transit a Member State may provide that its
competent authorities authority may impose in the competent authorities authority of
individual cases an authorisation requirement for the Member State in individual cases an
the specific transit of dual-use items listed in Annex authorisation requirement for the specific
I if the items are or may be intended, in their transit of dual-use items listed in Annex I A
entirety or in part, for uses referred to in Article listed in Annex I if the items are or may be
