Proposal for a COUNCIL REGULATION Amending and updating Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology

(presented by the Commission)

EXPLANATORY MEMORANDUM

Under Council Regulation (EC) No 1334/2000 of 22 June 2000, dual-use items (including software and technology) are subject to control when they are to be exported from the Community.

To ensure that such controls are fully effective and comply with Member States' commitments at multilateral level, in accordance with Article 3 of Regulation (EC) No 1334/2000, an authorisation shall be required for the export of dual-use items listed in Annex I.

Article 11 of Regulation 1334/2000 provides that the lists of dual-use items set out in Annex I and Annex IV shall be updated in conformity with the relevant obligations and commitments, and any modification thereof, that each Member State has accepted as a member of the international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties.

During the course of 2003, the Wassenaar Arrangement (WA), the Missile Technology Control Regime (MTCR) and the Australia Group (AG) have agreed on specific changes to their respective control lists. As a consequence, Annex I to the Regulation needs to be amended. After technical examination, the changes agreed upon in the above three regimes have been integrated into the amended versions of Annex I.

The changes in Annex II (deletion of Czech Republic, Hungary and Poland from the list of countries referred to in the General Community Export Authorisation) reflects the proposal made by the Commission (COM (2004) 148) to adjust Annex II of Regulation 1334/2000 in view of enlargement.

Annex III, which sets out a model form of export authorisation, remains unchanged but is being republished in order to facilitate consultation.

Annex IV, though unchanged, is also republished to ensure that a consolidated legislative document is easily accessible to all interested parties and economic actors.

For ease of reference, the changes made to Annex I are set out in table form below:

Australia Group decisions 2002 and 2003 regarding Annex I, category 1 (materials, chemicals, micro organisms and toxins) and category 2 (materials processing)

1C350.a.43. & .44. // the sub-entries are switched to match the AG list

1C351.a.21. to 32 // AG biological agents: 12 viruses added in conformity with AG plenary 2003 decision

1C351.c.14. and 15. // AG biological agents: 2 bacteria added (AG 2003 plenary decision)

1C352.a.16. & 17. // AG animal pathogens: 2 viruses added in conformity with inter-sessional decision of the AG (plenary June 2003)

1C353 Note

// AG decontrol note added for certain genetic elements following a decision of the AG 2003 plenary (AG/Aug03/CL/Chair/17 revising document AG/Jun02/BW/Chair/51)

2B350.g. // AG components added to valves control (decision made by the AG in December 2002)

2B352.d. // AG chapeau revised and components added (decision made by AG in January 2003)

Wassenaar and MTCR 2003 decisions. Summary of changes to Annex I

Category 1, 2, 3, 4, 5, 6, 7, 9

CATEGORY 1

// Materials, chemicals, micro organisms

And toxins (except those mentioned above and listed in AG)

1A002 // [WA] defined term is actually "specific tensile strength"

1A005 // WA new Nota Bene and Note 1 amended

1B118 // MTCR chapeau and sub-head b revised

1C111 // MTCR control on ferrocene and derivatives clarified

CATEGORY 2

// Materials processing

2B001 // WA chapeau revised and new Note 3 added

2B002 // WA new control on MRF

2B006.b.2.Note // WA " (e.g. laser light)" added after light

2D002 // WA new Note 2 added

Table of Deposition Techniques Note 17 // WA new wording added to end of paragraph

CATEGORY 3

//

Electronics

3A001.b.1. Note 1 // Sub-para. a. - parameter changed to 31.8 GHz

3A001.b.1. Note 2 // Sub-para. b.1. - parameter changed to 31.8 GHz

3A001.b.1.a.1. // Parameter changed to 31.8 GHz

3A001.b.2. // Existing entry rewritten

Note 1 deleted; Existing Note 2 renumbered Note 1

New Notes 2 and 3 added

3A001.b.3. // Existing entry rewritten

New Note added

3A001.b.4. // Existing entry rewritten

New Nota Bene added

New Notes 1 and 2 added

3A001.b.6. // Entry deleted

3A002.d. // Paragraph 1 amended

New paragraph 2 added

Existing paras. 2 and 3 renumbered 3 and 4

New Technical Note added for 'pulse duration'

3A003 // New entry added for spray cooling thermal management systems

3B001.a. // "Stored programme controlled" deleted

3B001.a.1. // Existing entry rewritten, including new sub-paras. a. and b.

3B001.b. // "Stored programme controlled" deleted

3B001.b.4. // Entry amended

3B001.c. // "Stored programme controlled" deleted

3B001.d. // "Stored programme controlled" deleted

3B001.d.1. // Sub-para. a. was modified and became part of paragraph 1

Sub-para. b. deleted

3B001.d.2. // Sub-para. a. was modified and became part of paragraph 2

Sub-para. b. deleted

3B001.e. // "Stored programme controlled" deleted

3B001.f. // "Stored programme controlled" deleted

3B001.h. // New Note added

3B002.a. // Parameter changed to 31.8 GHz

3B002.b. // Parameter changed to 667 MHz

3B002.b. Tech Note // The article "a" deleted before "non-multiplexed mode"

CATEGORY 3

Continued

// Electronics (continued)

3D002 // Existing entry replaced

3D003 // Existing entry replaced with entry for physics-based simulation "software"

Technical Note replaced

Note 1 deleted, Note 2 renamed just 'Note'

3D004 // New entry

3E001 // New Note 1 added, former Note becoming Note 2

3E001 Note 2 // Sub-para. a. deleted;

Sub-para. b. became part of the chapeau of the Note

3E003.b. // Entry rewritten;

New Note added

3E003.g. // Parameter changed to 31.8 GHz

CATEGORY 4

// Computers

4.A.2. // Entry deleted

CATEGORY 5

// Telecommunications and Information security

Category 5 - Part 1 //

5A101 // MTCR "Ground equipment" and local definition for 'missiles' added

5B001.b. // WA "Stored programme controlled" deleted

5B001.b.1. // WA "Asynchronous Transfer Mode" deleted from text and parameter changed to 15 Gbit/s;

New Technical Note added

5D001.d. // WA "Stored programme controlled" deleted

5D001.d.1. // "Asynchronous Transfer Mode" deleted from text and parameter changed to 15 Gbit/s;

New Technical Note added

5E001.c. // WA "Stored programme controlled" deleted

5E001.c.1. // WA "Asynchronous Transfer Mode" deleted from text and parameter changed to 15 Gbit/s;

New Technical Note added

5E001.c.4.b. // WA Parameter changed to 31.8 GHz

Category 5 - Part 2 //

5A002.a.7. // Control removed, sub-head now "not used"

CATEGORY 6

// Sensors and lasers

6A001.a.2.b.1. // WA Entry amended

6A001.a.2.b.2. Technical Note // WA Reference adjusted to refer to 6A001.a.2.b.1. and .2.

6A003.b.1. // WA 'Any of the following' changed to 'having all of the following';

New chapeau 'a.' added;

Sub-paras. a., b., c. renumbered 1., 2. 3.;

New paragraph b. added;

New Technical Note 2

6A005.b. // WA [Leave Notes 1 and 2 where they are rather than move to chapeau?]

6A005.b.2. // WA 'All of the following' changed to 'any of the following';

Paras. a. and b. rewritten and new para. c. added

6A005.b.3. // WA Entry rewritten, including new para. c.

6A005.b.4. // WA New entry

6A005.b. Technical Note // WA New Technical Notes 2 and 3 added

6A006.a. // WA Entry amended to include 'triaxial fluxgate'

6A108.b. // MTCR local definition for 'missiles' added

6D103 // MTCR local definition for 'missiles' added

6E003.c. // WA Entry amended to refer to 'non-triaxial fluxgate' twice

CATEGORY 7

// Navigation and avionics

7A // WA N.B. 2 deleted

7A003.a. // WA Entry amended

7A003.c. // WA New entry, including sub-paras. 1 and 2

7A003. Notes // WA New Note 3

CATEGORY 9

// Propulsion systems, space vehicles and related equipment

9A115 // MTCR Reference to 9004 and 9A104 removed from the chapeau

9A115.a. // MTCR Reference to 9004, 9A012 and 9A104 added

9A115.b. // MTCR Reference to 9004 and 9A104 added

It is proposed that the entry into force of the changes to Annex I will take place ninety days after the publication of the Regulation in the Official Journal of the European Union. This delay is longer than in the recent past because more time will be needed for the future EU Member States to adjust to this new list which will bind them by May 2004 (most of the future EU Member States are not members of the export control regimes and their candidacies to all the regimes will be under examination by the regimes this year. Certain of the future EU MS have not finalised the translation of the Regulation (EC) N 149/2003, in particular Malta which has never translated into Maltese language these export control lists). The delay of 90 days has been chosen because it was also granted to the Member States at the time of adoption of Regulation 1334/2000 in June 2000 to enable them to adjust to the new situation.

The changes to part 3 of Annex II (which lists the countries to which EC exports are covered by the Community General Export Authorisation) have already been the subject of a Commission proposal (COM (2004) (148) final) amending Regulation (EC) No 1334/2000. This Regulation should be adopted by the Council prior to 1 May 2004. However, given that the number of this Regulation is not known at the time of preparation of this new proposal, it is left empty and will be filled in by the Council Secretariat at the time when it is transmitted to the Council for adoption.

Commission proposal

In the light of the above considerations it is necessary to replace Annex I to Regulation (EC) n° 1334/2000.

2004/0112 (ACC)

Proposal for a COUNCIL REGULATION Amending and updating Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof,

Having regard to the proposal from the Commission [1],

[1] OJ C ..., ..., p. ...

Whereas:

(1) Council Regulation (EC) No 1334/2000 [2] requires dual-use items (including software and technology) to be subject to effective control when they are exported from the Community.

[2] OJ L 159, 30.6.2000, p.1. Regulation as last amended by Regulation (EC) No 149/2003 (OJ L 30, 5.2.2003, p.1)

(2) In order to enable the Member States and the Community to comply with their international commitments, Annex I of Regulation (EC) No 1334/2000 establishes the common list of dual-use items and technology referred to in Article 3 of that Regulation, which implements internationally agreed dual-use controls, including the Wassenaar arrangement, the Missile Technology Control Regime (MTCR), the Nuclear Suppliers Group (NSG), the Australia Group and the Chemical Weapons Convention (CWC).

(3) Article 11 of Regulation (EC) No 1334/2000 provides for Annex I and Annex IV to be updated in conformity with the relevant obligations and commitments, and any modifications thereof that each Member State has accepted as a member of the international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties.

(4) Annex I to Regulation (EC) No 1334/2000 should be amended in order to take account of changes adopted by the Wassenaar Arrangement, the Australia Group and the Missile Technology Control Regime since that Regulation was last amended by Regulation No 149/2003 on 27 January 2003).

(5) By Council Regulation (EC) No .... [3], part 3 of Annex II to Regulation (EC) No 1334/2000 has been amended in order to suppress the Czech Republic, Hungary and Poland from the current list of countries for which the Community Export Authorisation applies. For ease of reference for export control authorities and operators, it is necessary to publish an updated and consolidated version of the Annexes to Regulation (EC) No 1334/2000, taking into account all the amendments accepted by the Member States in international fora during the period covering December 2002-December 2003.

[3] OJ L.......

(6) Regulation (EC) No 1334/2000 should be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

The Annexes to Regulation (EC) No 1334/2000 shall be replaced by the text in the Annex to this Regulation.

Article 2

This Regulation shall enter into force on the ninetieth day following its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the Council

The President

FINANCIAL STATEMENT

1. TITLE OF OPERATION: Proposal for a Council Regulation (EC) amending and updating Regulation (EC) N° 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology

2. BUDGET HEADING(S) INVOLVED: none

3. LEGAL BASIS: Article 133 of the EC Treaty

4. DESCRIPTION OF OPERATION:

4.1 General objective: Technical amendment of annexes I, II and IV to Council Regulation (EC) No 1334/2000 (dual-use); annex III unchanged

4.2 Period covered and arrangement for renewal.

Indefinite

5. CLASSIFICATION OF EXPENDITURE OR REVENUE: not applicable

6. TYPE OF EXPENDITURE OR REVENUE: not applicable

7. FINANCIAL IMPACT: not applicable

8. FRAUD PREVENTION MEASURES: not applicable

9. ELEMENTS OF COST-EFFECTIVENESS ANALYSIS: not applicable

10. ADMINISTRATIVE EXPENDITURE (SECTION III, PART A OF THE BUDGET): not applicable. The EU MS are responsible for the implementation of the regulation in particular the granting of export licences for all the items in the annex (considerant 6 which reads as follows "the responsibility for deciding on applications for export authorisations lies with national authorities, article 3 and 6 of the regulation 1334/2000)