Proposal for a Council Regulation concerning trade in certain equipment and products which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment
Date: 2002-12-30
Institutions: European Commission
Subjects: cruel and degrading treatment, export licence, human rights, import policy, torture, trade regulations

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 30.12.2002
COM(2002) 770 final

Proposal for a

COUNCIL REGULATION

concerning trade in certain equipment and products which could be used for
capital punishment, torture or other cruel, inhuman or degrading treatment
or punishment

(presented by the Commission)

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

EXPLANATORY MEMORANDUM

The  objective  of  the  attached  proposal  is  to  set  up  a  specific  trade  regime  covering
certain  equipment  and  products  which  could  be  used  for  torture  and  other  cruel,
inhuman or degrading treatment or punishment. The purpose of a regime of this kind
is to contribute to the prevention of the violation of the fundamental human right not
to  be  subjected  to  torture  and  other  cruel,  inhuman  or  degrading  treatment  or
punishment. This is a key aim of the European Union, as underlined in the Guidelines
to  the  EU  Policy  on  Torture  and  Other  Cruel,  Inhuman  or  Degrading  Treatment  or
Punishment, adopted by Council (General Affairs) on 9 April 2001. These Guidelines
make clear the EU position on the prevention of the use and production of, and trade
in, such equipment.

These  Guidelines  also  make  the  point  that  the  prohibition  of  cruel,  inhuman  or
degrading punishment imposes clear limits on the use of the death penalty. As regards
the latter, the Council adopted Guidelines on the EU Policy towards Third Countries
on the Death Penalty on 29 June 1998.

The International Covenant on Civil and Political Rights, the European Convention for
the Protection of Human Rights and Fundamental Freedoms, the 1984 United Nations
Convention  against  Torture  and  Other  Cruel,  Inhuman  or  Degrading  Treatment  or
Punishment, and the Charter of Fundamental Rights of the European Union show that
no  exceptions  can  be  made  to  the  prohibition  of  torture  and  other  cruel,  inhuman  or
degrading treatment or punishment.

The  prohibition  of  torture  and  other  cruel,  inhuman  or  degrading  treatment  or
punishment is part of the public morals of the international community. The proposed
regime restricts trade with a view to preventing violations of that prohibition in cases
where such violations are likely to occur, and is therefore necessary to protect public
morals.

The proposed regime consists of two components. The first component is a ban on all
trade  in  equipment  which  has  no,  or  virtually  no,  practical  use  other  than  for  the
purpose of capital punishment or for the purpose of torture and other cruel, inhuman or
degrading treatment or punishment.

The  second  component  allows  the  competent  authorities  to  control  trade  in  listed
equipment and products, which could be used for the purpose of capital punishment or
for  the  purpose  of  torture  and  other  cruel,  inhuman  or  degrading  treatment  or
punishment,  but  which  also  has  legitimate  uses.  The  competent  authorities  should
impose any conditions they deem appropriate to prevent the equipment  and products
being  used  for  the  purpose  of  capital  punishment  or  for  the  purpose  of  torture  and
other  cruel,  inhuman  or  degrading  treatment  or  punishment.  When  doing  so,  they
should  of  course  take  into  account  all  relevant  factors,  including  reports  on  any
occurrences  in  the  country  of  destination  of  torture  and  other  cruel,  inhuman  or
degrading treatment or punishment.

(7) 

Accordingly,  the  list  of  equipment  consists  of  two  parts.  Annex  I  comprises  both
equipment  which  has  no,  or  virtually  no,  practical  use  other  than  for  the  purpose  of
capital punishment, and equipment which has in fact no, or virtually no, practical use
other than for the purpose of torture and other cruel, inhuman or degrading treatment
or punishment.

2

(8) 

(9) 

(10) 

Annex II comprises equipment and  products which could be used for the purpose of
capital punishment or for the purpose of torture and other cruel, inhuman or degrading
treatment,  which  also  has  other,  legitimate  uses.  In  order  to  avoid  unnecessarily
cumbersome  and  costly  procedures,  Annex  II  is  limited  to  equipment  and  products
which have been designed in such a way that it could easily be abused for the purpose
of  capital  punishment  or  for  the  purpose  of  torture  and  other  cruel,  inhuman  or
degrading treatment or punishment, e.g. because it is capable of inflicting severe pain
or  injury  on  human  beings,  and  to  equipment  and  products  that  are  used  for  law
enforcement purposes, i.e. which are intended for use by law enforcement officers and
similar professionals.

The  proposed  Regulation  also  imposes  restrictions  on  services  relating  to  equipment
included in the list and on brokering  activities.  However,  it does not  restrict  trade in
equipment and products not included in the relevant list.

In  order  to  take  technological  developments  into  account,  the  list  of  equipment  and
products should be kept under review. In this regard, particular attention will have to
be given to law enforcement equipment that is presented as "non-lethal", which could
be more harmful than claimed by its manufacturer and therefore lend itself to abuse for
the purpose of torture and other cruel, inhuman or degrading treatment or punishment.

(11)  The  Guidelines  to  EU  policy  towards  third  countries  on  torture  and  other  cruel,
inhuman  or  degrading  treatment  or  punishment,  adopted  by  the  Council  on  9  April
2001, state that  the  EU  will  urge  third  countries  to  “prevent  the  use,  production  and
trade  of  equipment  which  is  designed  to  inflict  torture  or  other  cruel,  inhuman  or
degrading  treatment  or  punishment”.  The  Commission  considers  that  the  EU  itself
should  take  the  very  measures  that  it  urges  third  countries  to  take.  To  that  end,  it
proposes  to  impose  restrictions  on  trade  with  third  countries  in  equipment  and
products which could be used for the purpose of capital punishment or for the purpose
of torture and other cruel, degrading or inhuman treatment.

(12)  The  proposed  Regulation  does  not  impose  any  restrictions  on  the  use,  production,
marketing  and  sales  within  the  internal  market  of  the  equipment  and  products
concerned.  The  Commission  encourages  Member  States  to  take  supplementary
measures, especially on production of such equipment and products, and expects that
they do so in the short term.

(13)  Finally, it should be noted that the proposed Regulation neither prejudices the export
control  regime  concerning  dual-use  goods  (Council  Regulation  (EC)  No  1334/2000)
and  the  control  regime  concerning  firearms  (Council  Directive  91/477/EC,  which
provides, inter  alia, that Member  States  shall intensify  controls  on  the  possession  of
weapons at  external borders), nor  precludes  the  imposition  of  export  prohibitions  on
other  grounds,  e.g.  in  order  to  prevent  and  condemn  internal  repression  in  a  third
country  (e.g.  Council  Regulations  (EC)  No  1081/2000  concerning  Myanmar/Burma
and No 310/2002 concerning Zimbabwe).

3

Proposal for a

COUNCIL REGULATION

concerning trade in certain equipment and products which could be used for capital
punishment, torture or other cruel, inhuman or degrading treatment or punishment

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 Commission1,

Whereas:

(1)

(2)

(3)

(4)

1

2

3

Pursuant to Article 6 of the  Treaty on  European  Union respect for  human rights and
fundamental freedoms constitutes one of the principles common to the Member States.
In view of this the Community resolved in 1995 to make respect for human rights and
fundamental freedoms an essential element of its relations with third countries. It was
decided to  insert  a  clause to  that  end  in  any  new  trade,  co-operation  and  association
agreement of a general nature that it concludes with third countries.

Article 5 of the Universal Declaration of Human Rights, Article 7 of the International
Covenant on Civil and Political Rights and Article 3 of the European Convention for
the  Protection  of  Human  Rights  and  Fundamental  Freedoms  all  lay  down  an
unconditional,  comprehensive  prohibition  on  torture  and  other  cruel,  inhuman  or
degrading treatment or punishment. Other provisions, in particular the United Nations
Declaration  Against  Torture 2  and  the  1984  United  Nations  Convention  Against
Torture  and  Other  Cruel,  Inhuman  or  Degrading  Treatment  or  Punishment,  place  an
obligation on States to prevent torture.

Article  2(2)  of  the  Charter  of  Fundamental  Rights  of  the  European  Union3  prohibits
executions  and  condemnations  to  the  death  penalty.  On  29  June  1998,  the  Council
approved  "Guidelines  on  EU  Policy  towards  Third  Countries  on  the  Death  Penalty"
and resolved that the European Union would work towards the universal abolition of
the death penalty.

Article  4  of  the  Charter  of  Fundamental  Rights  of  the  European  Union  prohibits
torture  and  inhuman  or  degrading  treatment  and  punishment.  On  9  April  2001,  the
Council  approved  "Guidelines  to  the  EU  Policy  toward  Third  Countries,  on  Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment." These guidelines
refer to both the adoption of the EU Code of Conduct on Arms Exports in 1998, and

OJ C […], […], p. […].
Resolution 3452 (XXX) of 9.12.1975 of the General Assembly of the United Nations.
OJ C 364, 18.12.2000, p. 1.

4

                                                
the prospective introduction  of  controls on  the exports of  paramilitary  equipment,  as
examples of measures to work effectively towards the prevention of torture and other
cruel,  inhuman  or  degrading  treatment  or  punishment.  These  guidelines  also  provide
for  third  countries  to  be  urged  to  prevent  the  use  and  production  of,  and  trade  in,
equipment  designed  for  torture  or  other  cruel,  inhuman  or  degrading  treatment  or
punishment.  They  also  make  the  point  that  the  prohibition  of  cruel,  inhuman  or
degrading punishment imposes clear limits on the use of the death penalty.

In  its  Resolution  on  Torture  and  other  Cruel,  Inhuman  or  Degrading  Treatment  or
Punishment, adopted on 25 April 2001 and supported by the EU Member States, the
United Nations Commission on Human Rights, called upon United Nations Members
to take appropriate steps, including legislative measures, to prevent and prohibit, inter
alia, the export of equipment which is specifically designed to inflict torture or other
cruel, inhuman or degrading treatment or punishment. This point was confirmed by a
Resolution adopted on 16 April 2002.

On 3 October 2001, the European Parliament adopted a Resolution 4 on the Council's
second  Annual  Report  according  to  Operative  Provision  8  of  the  European  Union
Code  of  Conduct  on  Arms  Exports,  urging  the  Commission  to  act  swiftly  to  bring
forward  an  appropriate  Community  instrument  banning  the  promotion,  trade  and
export  of  police  and  security  equipment  whose  use  is  inherently  cruel,  inhuman  or
degrading, and to ensure that that Community instrument would suspend the transfer
of  police  and  security  equipment  whose  medical  effects  are  not  fully  known,  and  of
such  equipment  where  its  use  in  practice  has  revealed  a  substantial  risk  of  abuse  or
unwarranted injury.

It is therefore appropriate to lay down Community rules on trade with third countries
in equipment and products which could be used for the purpose of capital punishment
and  in  equipment  and  products  which  could  be  used  for  the  purpose  of  torture  and
other  cruel,  inhuman  or  degrading  treatment  or  punishment.  These  rules  are
instrumental  in  promoting  respect  for  human  life  and  for  fundamental  human  rights,
and thus serve the purpose of protecting public morals. These rules should ensure that
Community  economic  operators  do  not  derive  any  benefits  from  trade  which  either
promotes or otherwise facilitates the implementation of policies on capital punishment
or on  torture  and  other  cruel,  inhuman  or  degrading  treatment  or  punishment,  which
are  not  compatible  with  the  relevant  EU  Guidelines,  the  Charter  of  Fundamental
Rights of the European Union and international conventions and treaties.

For the purpose of this Regulation, it is considered appropriate to apply the definitions
of torture and other cruel, inhuman or degrading treatment or punishment laid down in
the  1984  United  Nations  Convention  Against  Torture  and  Other  Cruel,  Inhuman  or
Degrading  Treatment  or  Punishment.  These  definitions  should  be  interpreted  taking
into  account  the  case  law  on  the  interpretation  of  the  corresponding  terms  in  the
European Convention on Human Rights and the Charter of Fundamental Rights of the
European Union.

(5)

(6)

(7)

(8)

(9)

It is considered necessary to prohibit exports and imports of equipment which has no,
or virtually no, practical use other than for the purpose of capital punishment or for the
purpose of torture and other cruel, inhuman or degrading treatment or punishment. In

4

OJ C 87 E, 11.4.2002, p. 136.

5

                                                
this  regard,  it  should  be  noted  that  Article  33  of  the  United  Nations  Standard
Minimum Rules for the Treatment of Prisoners 5 prohibits the use of chains and irons
as restraints.

(10)

It is  also  necessary to impose controls on exports of certain  equipment  and  products
which could be used not only for the purpose of capital punishment or for the purpose
of torture and other cruel, inhuman or degrading treatment or punishment, but also for
other,  legitimate  purposes.  These  controls  should  apply  to  equipment  that  has  been
designed  in  such  a  way  that  it  could  easily  be  abused  for  the  purpose  of  capital
punishment  or  for  the  purpose  of  torture  and  other  cruel,  inhuman  or  degrading
treatment  or  punishment,  and  to  equipment  and  products  that  are  used  for  law
enforcement purposes.

(11) As regards law enforcement equipment, it should be noted that Article 3 of the Code
of  Conduct  for  Law  Enforcement  Officials 6  provides  that  law  enforcement  officials
may  use  force  only  when  strictly  necessary  and  to  the  extent  required  for  the
performance of their duty. The Basic Principles on the Use of Force and Firearms by
Law  Enforcement  Officials,  adopted  by  the  Eighth  United  Nations  Congress  on  the
Prevention  of  Crime  and  the  Treatment  of  Offenders  in  1990,  provide  that  law
enforcement  officials, in carrying out their  duty, shall,  as  far  as possible,  apply  non-
violent means before resorting to the use of force and firearms.

(12)

(13)

(14)

(15)

In  view  of  this,  those  Basic  Principles  advocate  the  development  of  non-lethal
incapacitating weapons for use in appropriate situations, while admitting that the use
of  such  weapons  should  be  carefully  controlled.  In  this  context,  certain  equipment
traditionally  used  by  the  police  for  self-defence  and  riot-control  purposes  has  been
modified  in  such  a  way  that  it  can  be  used  to  apply  electric  shocks  and  chemical
substances  to  incapacitate  persons.  There  are  indications  that,  in  several  countries,
such  weapons  are  abused  for  the  purpose  of  torture  and  other  cruel,  inhuman  or
degrading treatment or punishment.

Those Basic Principles stress that law enforcement officials should be equipped  with
equipment  for  self-defence.  Therefore,  this  Regulation  should  not  apply  to  trade  in
traditional equipment for self-defence, such as shields.

This  Regulation  should  also  apply  to  trade  in  the  chemical  substances  used  to
incapacitate persons, including tear gases and riot control agents.

It  should  also  be  noted  that  the  United  Nations  Standard  Minimum  Rules  for  the
Treatment of Prisoners 7 provide that instruments of restraint must never be applied as
a  punishment  and  that  such  instruments  of  restraint  may  only  be  used  either  as  a
precaution  against  escape  during  a  transfer,  on  medical  grounds  as  directed  by  a
medical officer, or, if other methods of control fail, in order to prevent a prisoner from
injuring himself or others, or from damaging property.

5

6

7

Approved by Resolutions 663 C (XXIV) of 31.7.1957 and 2076 (LXII) of 13.5.1977 of the Economic
and Social Council of the United Nations.
Resolution 34/169 of 17.12.1979 of the General Assembly of the United Nations.
Approved by Resolutions 663 C (XXIV) of 31.7.1957 and 2076 (LXII) of 13.5.1977 of the Economic
and Social Council of the United Nations.

6

                                                
(16)

(17)

(18)

(19)

(20)

(21)

(22)

The Guidelines to the EU Policy toward Third Countries, on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment provide, inter alia, that the Heads of
Mission  in  third  countries  will  include  in  their  periodic  reports  an  analysis  of  the
occurrence of torture and other cruel, inhuman or degrading treatment or punishment
in the State of their accreditation, and the measures taken to combat it. The competent
authorities should take these reports and similar reports made by relevant international
organisations, into account when deciding on requests for authorisations. Such reports
should also describe any equipment used in third countries for the purpose of capital
punishment  or  for  the  purpose  of  torture  and  other  cruel,  inhuman  or  degrading
treatment or punishment.

In order to contribute to the abolition of the death penalty in third countries and to the
prevention of torture and other cruel, inhuman or degrading treatment or punishment,
it is considered necessary to impose restrictions on the provision to third countries of
services pertaining to the operation and use of all equipment subject to this Regulation.
For the same reason, restrictions should also be imposed on the provision of services
which  promote  sales  of  equipment  and  products  subject  to  this  Regulation,  such  as
brokerage, irrespective of whether the equipment concerned has been, is or will be in
free circulation in the territory of the Community at any material time.

The measures of this Regulation are intended to prevent both capital punishment and
torture  and  other  cruel,  inhuman  or  degrading  treatment  or  punishment  in  third
countries. They  comprise  restrictions  on  trade  with  third  countries  in  equipment  that
could be used for the purpose of capital punishment or for the purpose of torture and
other  cruel,  degrading  or  inhuman  treatment  or  punishment.  It  is  not  considered
necessary to establish similar controls on transactions within the Community as, in the
Member States, capital punishment does not exist and there  are sufficient safeguards
in  place  to  prevent  torture  and  other  cruel,  inhuman  or  degrading  treatment  or
punishment.

The Guidelines to the EU Policy toward Third Countries, on Torture and Other Cruel,
Inhuman  or  Degrading  Treatment  or  Punishment  state  that,  in  order  to  meet  the
objective  of  taking  effective  measures  against  torture  and  other  cruel,  inhuman  or
degrading  treatment  or  punishment,  measures  to  prevent  the  use  and  production  of
equipment  which  is  designed  to  inflict  torture  or  other  cruel,  inhuman  or  degrading
treatment  or  punishment,  should  supplement  these  restrictions  on  trade  with  third
countries.

In  order  to  take  into  account  new  data  and  technological  developments,  the  list  of
equipment  and  products  covered  by  this  Regulation  should  be  reviewed  within  a
reasonable period of time.

The  Commission  and  the  Member  States  should  inform  each  other  of  the  measures
taken  under  this  Regulation  and  of  other  relevant  information  at  their  disposal  in
connection with this Regulation.

The  substantive  measures  necessary  for  the  implementation  of  this  Regulation  are
management  measures  within  the  meaning  of  Article  2  of  Council  Decision
1999/468/EC  of  28  June  1999  laying  down  the  procedures  for  the  exercise  of

7

implementing powers conferred on the Commission 8. They should be adopted by use
of the management procedure provided for in Article 4 of that Decision.

(23) Member States should lay down rules on penalties applicable to infringements of the
provisions  of  this  Regulation  and  ensure  that  they  are  implemented.  Those  penalties
must be effective, proportionate and dissuasive.

(24)

This  act  respects  the  fundamental  rights  and  observes  the  principles  recognised  in
particular by the Charter of Fundamental Rights of the European Union,

HAS ADOPTED THIS REGULATION:

Chapter I

Subject matter, scope and definitions

Article 1
Subject matter and scope

This  Regulation  lays  down  Community  rules  governing  trade  with  third  countries  in
equipment and products that could be used  for the purpose of capital punishment  or for the
purpose  of  torture  and  other  cruel,  degrading  or  inhuman  treatment  or  punishment,  and  in
related services.

For the purposes of this Regulation:

Article 2
Definitions

(a)

(b)

"torture"  means  any  act  by  which  severe  pain  or  suffering,  whether  physical  or
mental, is intentionally inflicted on a person for such purposes as obtaining from that
person or from a third person information or a confession, punishing that person for
an  act  that  either  that  person  or  a  third  person  has  committed  or  is  suspected  of
having  committed,  or  intimidating  or  coercing  that  person  or  a  third  person,  or  for
any  reason  based  on  discrimination  of  any  kind,  when  such  pain  or  suffering  is
inflicted either by or at the instigation of, or  with the consent or acquiescence of, a
public  official  or  other  person  acting  in  an  official  capacity.  It  does  not,  however,
include  pain  or  suffering  arising  only  from,  inherent  in  or  incidental  to  the  proper
application  of  lawful  penalties,  it  being  understood  that  for  the  purpose  of  this
Regulation capital punishment is not a lawful penalty;

"other  cruel,  inhuman  or  degrading  treatment  or  punishment"  means  any  act  by
which  significant  pain  or  suffering,  whether  physical  or  mental,  is  intentionally
inflicted  on  a  person,  when  such  pain  or  suffering  is  inflicted  either  by  or  at  the
instigation  of,  or  with  the  consent  or  acquiescence  of,  a  public  official  or  other
person acting in an official capacity. It does not, however, include pain or suffering

8

OJ L 184, 17.7.1999, p. 23.

8

                                                
arising  only  from,  inherent  in  or  incidental  to  the  proper  application  of  lawful
penalties,  it  being  understood  that  for  the  purpose  of  this  Regulation  capital
punishment is not a lawful penalty;

"law  enforcement  authority"  means  any  authority  responsible  for  preventing,
detecting,  investigating,  combating  and  punishing  criminal  offences,  including,  but
not limited to, the police, any prosecutor, any judicial authority, any public or private
prison authority and, where appropriate, any of the state security forces and military
authorities;

"export transaction" means any export, re-export, sale, transfer, delivery or shipment,
whether directly or indirectly, to any person, entity or body in a third country or to
any person, entity or body for the purpose of any business carried on in, or operated
from, the territory of any third country;

"import  transaction"  means  any  introduction  of  goods  into  the  territory  of  the
Community;

"competent authority" means an authority listed in Annex III.

"territory of the Community" means all the territories of the Member States to which
the Treaty establishing the European Community is applicable, under the conditions
laid down in that Treaty.

(c)

(d)

(e)

(f)

(g)

Chapter II

Equipment which has no, or virtually no, practical use other than
for the purposes of capital punishment, torture and other cruel,
inhuman or degrading treatment or punishment

Article 3
Export prohibition

1.

With  respect  to  equipment  listed  in  Annex  I,  any  export  transaction  shall  be
prohibited, irrespective of the origin of such equipment.

Any grant, sale, supply or transfer to any person, entity or body in a third country or
to any other person, entity or body for the purpose of any business carried on in, or
operated  from,  the  territory  of  any  third  country,  whether  directly  or  indirectly,  of
technical  advice,  assistance  or  training  related  to  the  functioning,  use,  production,
composition or transformation of equipment listed in Annex I, shall be prohibited.

The  provision  of  brokering  and  similar  activities  with  a  view  to  facilitating  or
promoting any export transaction concerning such equipment, shall be prohibited.

2.

By  way  of  derogation  from  paragraph  1,  a  competent  authority  may  authorise  an
export transaction with respect to equipment listed in Annex I, and the provision of
related  services,  if  it  is  demonstrated  that,  in  the  third  country  to  which  the

9

equipment, will be exported, such equipment will be used for the exclusive purpose
of public display in a museum in view of its historic significance.

Article 4
Import prohibition

1.

With  respect  to  equipment  listed  in  Annex  I,  any  import  transaction  shall  be
prohibited, irrespective of the origin of such equipment.

Any grant, sale, supply or transfer to any person, entity or body in the Community or
to any other person, entity or body for the purpose of any business carried on in, or
operated  from,  the  territory  of  the  Community,  whether  directly  or  indirectly,  of
technical  advice,  assistance  or  training  related  to  the  functioning,  use,  production,
composition or transformation of equipment listed in Annex I, shall be prohibited.

The  provision  of  brokering  and  similar  activities  with  a  view  to  facilitating  or
promoting any import transaction concerning such equipment, shall be prohibited.

2.

By  way  of  derogation  from  paragraph  1,  a  competent  authority  may  authorise  an
import  with  respect  to  equipment  listed  in  Annex  I,  and  the  provision  of  related
services,  if  it  is  demonstrated  that,  in  the  Member  State  of  destination  ,  such
equipment will be used for the exclusive purpose of public display in a museum in
view of its historic significance.

Chapter III

Equipment and products that could be used for the purpose of
capital punishment, torture or other cruel, inhuman or degrading
treatment or punishment

Article 5
Export authorisation requirement

1.

2.

For any export transaction concerning equipment and products listed in Annex II, an
authorisation shall be required, irrespective of the origin of such equipment.

With respect to equipment and products listed in Annex II, an authorisation shall be
required for the following activities:

(a)

negotiating  or  arranging  a  contract  or  agreement  concerning  the  purchase,
transfer, delivery or shipment of such equipment, if

(i)

such contract or agreement would be concluded either by or on behalf of
a person, entity or body in a third country, or by or on behalf of any other
person, entity  or body  for  the  purpose  of  any  business  carried  on  in,  or
operated from, the territory of any third country,

10

(ii)

such contract or agreement would require that equipment listed in Annex
II be put at the disposal of that person, entity or body, and

(iii)

the  person,  entity  or  body  engaging  in  brokering  or  similar  activities  is
established in the territory of the Community;

(b)

granting,  selling,  supplying  or  transferring,  whether  directly  or  indirectly,
technical  advice,  assistance  or  training  related  to  the  functioning,  use,
production,  composition  or  transformation  of  such  equipment,  to  any  person,
entity or body in a third country or to any other person, entity or body for the
purpose  of  any  business  carried  on  in,  or  operated  from,  the  territory  of  any
third country.

Article 6
Applications for authorisations

An authorisation for export transactions and activities referred to in Articles 5(1) and
5(2)(b), may be granted only by the competent authority of the Member State where
the exporter, seller, service provider or transferring party is established.

An authorisation for activities referred to in Article 5(2)(a), may be granted only by
the  competent  authority  of  the  Member  State  where  the  negotiating  or  arranging
person, entity or body is established.

Applicants shall supply the competent authority with all relevant information on the
activities  for  which  an  authorisation  is  required.  For  export  transactions  this  shall
include, in particular :

(a)

a precise statement on the country of destination, the end-user and the intended
end-use; and

(b)

full information on the shipment route and intermediaries.

The  competent  authority  may  request  any  additional  information  it  considers
necessary in order to make a decision on the application.

An  authorisation  may  be  subject  to  such  requirements  and  conditions  as  the
competent authority deems appropriate in order to prevent the equipment concerned
being  used  for  the  purpose  of  capital  punishment  or  for  the  purpose  of  torture  and
other  cruel,  inhuman  or  degrading  treatment,  such  as  an  obligation  to  provide  a
statement signed by the end-user or acceptance of a commitment not to re-export.

Without prejudice to Article 14(2), the competent authority shall make a decision on
the  application  for  an  authorisation  within  two  months.  It  shall  without  delay
communicate  its  decision  to  the  applicant  and,  where  appropriate,  to  the  Member
State in whose territory the export declaration will be presented.

Unless  an  authorisation  for  an  export  transaction  stipulates  otherwise,  such
authorisation  implies  an  authorisation  for  the  applicant  and  for  those  entering  into
contractual  relations  with  the  applicant,  to  sell,  transfer,  deliver  and  ship  the
equipment  referred  to  in  the  request,  to  a  specific  person,  entity  or  body  in  a  third
country.

11

1.

2.

3.

4.

5.

6.

Authorisations shall be valid throughout the Community. The period of validity of an
authorisation  shall  be  six  months,  unless  the  competent  authority  decides  that  this
period must be shorter.

Article 7
Decisions on authorisations for export transactions

Subject to Articles 8 to 11, decisions on applications for authorisation for export transactions
concerning  any  equipment  and  products  listed  in  Annex  II  shall  be  taken  by  the  competent
authority on a case by case basis, taking into account all relevant considerations, including the
enforcement of restrictions on the transfer of the equipment concerned, if any, by the country
of destination, and the acceptance of international obligations and commitments in this regard.

Article 8
Criteria for granting export authorisations for end-use by
parties other than law enforcement authorities

As regards export transactions concerning equipment and products listed in Annex II that is
destined  for  end-users  other  than  law  enforcement  authorities,  a  competent  authority  shall
refrain from granting an authorisation, if it is not satisfied that all the following conditions are
met:

(a)

(b)

(c)

the end-user needs such equipment for a legitimate purpose;

the end-user will effectively use this equipment for such purpose;

the equipment will not be sold, transferred or delivered by the end-user to any other
person, entity or body, including in particular law enforcement authorities, in a third
country where torture or other cruel, inhuman or degrading treatment or punishment
is reported to occur.

Article 9
Criteria for granting export authorisations for end-use by
law enforcement authorities

As regards export transactions concerning equipment and products listed in Annex II destined
for  law  enforcement  authorities,  a  competent  authority  shall  refrain  from  granting  an
authorisation, if

(a)

there  are  indications  that  torture  or  other  cruel,  degrading  or  inhuman  treatment  or
punishment  has  been  or  is  being  practised  by  the  law  enforcement  authority
concerned, and

(b)

the competent authority is not satisfied that the third country concerned:

(i)

(ii)

has  prohibited  torture  and  other  cruel,  degrading  or  inhuman  treatment  or
punishment in law, including criminal law,

is  bringing  the  persons  responsible  for  torture  and  other  cruel,  degrading  or
inhuman treatment or punishment to justice, and

12

(iii)

is  imposing,  in  respect  of  such  acts,  penalties  other  than  capital  punishment,
which  are  both  dissuasive  and  proportionate  to  the  nature  of  the  acts
committed.

It shall refrain from granting an authorisation if it has reason to conclude that the equipment
concerned is likely to be used for judicial corporal punishment.

Article 10
Additional criteria for granting export authorisations for end-use by
law enforcement authorities interrogating individuals

As regards export transactions concerning equipment and products listed in Annex II destined
for law enforcement authorities interrogating individuals, a competent authority shall refrain
from granting an authorisation, if

(a)

(b)

there  are  indications  that  torture  or  other  cruel,  degrading  or  inhuman  treatment  or
punishment have occurred in the third country concerned during interrogations, and

the competent authority is not satisfied that the third country concerned has ensured
that  statements  obtained  through  torture  and  other  cruel,  inhuman  or  degrading
treatment or punishment shall not be invoked as evidence in any proceedings, except
against a person accused of such acts as evidence that the statement was made.

Article 11
Additional criteria for granting export authorisations for end-use by law enforcement
authorities detaining individuals

As regards export transactions concerning equipment and products listed in Annex II destined
for law enforcement authorities detaining individuals, a competent authority shall refrain from
granting an authorisation, if

(a)

(b)

1.

there  are  indications  that  torture  or  other  cruel,  degrading  or  inhuman  treatment  or
punishment  has  occurred  in  a  detention  centre  or  prison  which  either  is  being
managed by, or operates under the authority or supervision of, the law enforcement
authority concerned, and

the  competent  authority  is  not  satisfied  that  the  third  country  concerned  is  both
bringing  the  persons  responsible  for  torture  and  other  cruel,  degrading  or  inhuman
treatment  or  punishment  committed  in  detention  centres  or  prisons  to  justice,  and
imposing  penalties  other  than  capital  punishment,  which  are  both  dissuasive  and
proportionate to the nature of the acts committed.

Article 12
Authorisations for export of services

A competent authority shall refrain from  granting an authorisation for the  activities
referred  to  in  Article  5(2)(a),  if  the  export  transactions  or  the  provision  of  services
implementing the contract or agreement which the applicant intends  to negotiate or
arrange,  would  not  be  authorised  in  accordance  with  this  Regulation,  assuming,

13

where necessary, that such implementing export transaction or provision of services
would be subject to the jurisdiction of the Community.

2.

A competent authority shall refrain from  granting an authorisation for the  activities
referred to in Article 5(2)(b), if the equipment to which the services relate, would not
be authorised for export from the Community to the end-user concerned, assuming,
where necessary, that such export transaction would be subject to the jurisdiction of
the Community.

Chapter IV

General and final provisions

Article 13
Amendment of data regarding competent authorities

The data regarding competent authorities in Annex III shall be amended by the Commission
on the basis of information supplied by the Member States.

Article 14
Exchange of information

1.

The  Commission  and  the  Member  States  shall  inform  each  other  of  the  measures
taken under this Regulation and supply each other with any relevant information at
their disposal in connection with this Regulation, in particular

(a)

information on authorisations granted and refused;

(b)

information on new law enforcement equipment, including test reports;

(c)

findings and reports on the policies and practices of third countries concerning
capital  punishment  and  torture  and  other  cruel,  inhuman  or  degrading
treatment;

(d)

information in respect of violation and enforcement problems and judgements
handed down by national courts.

2.

A competent authority, which receives an application for an authorisation referred to
in Article 6, shall provide a summary of the application to the competent authorities
of the other Member States and the Commission within two weeks of receipt of the
application.  It shall inform them of the  grounds  on  which  it intends to either reject
the  application  or  grant  an  authorisation,  and  of  any  conditions  that  it  considers
appropriate.

If a reasoned objection is raised by a Member State or  the  Commission within two
weeks  of  receipt  of  the  summary  of  the  application,  the  competent  authority
concerned may make a new proposal within one week.

14

If the competent authority fails to make a new proposal, or if a reasoned objection is
raised  by  a  Member  State  or  by  the  Commission  in  respect  of  any  new  proposal
within one week, the decision on authorisation shall be taken by the Commission in
accordance with the procedure referred to in Article 16(2).

Article 15
Report

Each  competent  authority  shall  make  an  activity  report  to  the  Commission,  providing
information on the number of applications received, on the equipment, products and countries
concerned  by  these  applications,  on  the  decisions  it  has  taken  on  these  applications,  on
interpretation issues that have arisen, and on any organisational or other problems it has faced.
An activity report shall be made for each period of twelve months.

Article 16
Committee

1.

2.

The Commission shall be assisted by the committee on common rules for exports of
products, instituted by Article 4(1) of Regulation (EEC) No 2603/1969. 9

Where  reference  is  made  to  this  paragraph,  Articles  4  and  7  of  Decision
1999/468/EC shall apply.

The  period  laid  down  in  Article  4(3)  of  Decision  1999/468/EC  shall  be  set  at  10
working days.

3.

The Committee shall adopt its rules of procedure.

Article 17
Penalties

1.

2.

The Member States shall lay down the rules on penalties applicable to infringements
of the provisions of this Regulation and shall take all measures necessary to ensure
that  they  are  implemented.  The  penalties  provided  for  must  be  effective,
proportionate and dissuasive.

The  Member  States  shall  notify  those  provisions  to  the  Commission  by  30  April
2003  at  the  latest  and  shall  notify  it  without  delay  of  any  subsequent  amendment
affecting them.

9

OJ L 324, 27.12.1969, p. 25.

15

                                                
Article 18
Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Communities.

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

Done at Brussels, […]

For the Council
The President

16

List of equipment referred to in Articles 3 and 4

ANNEX I

Equipment which has no, or virtually no, practical use other than for the purpose of capital
punishment or for the purpose of torture and other cruel, inhuman or degrading treatment or
punishment.

CN code

Description

ex 4421 90 98
ex 8208 90 00
ex 8543 89 95
ex 9401 79 00
ex 9401 80 00
ex 9402 10 00
ex 9402 90 00
ex 9406 00 39
ex 9406 00 90

ex 8413 81 90
ex 9018 90 50
ex 9018 90 60
ex 9018 90 85
ex 8543 89 95

ex 7326 90 97
ex 8301 50 00
ex 3926 90 99

ex 7326 90 97
ex 8301 50 00
ex 3926 90 99
ex 7326 90 97
ex 8301 50 00
ex 3926 90 99

Gallows and guillotines

Electric  chairs  designed  or  modified  for  the  purpose  of
execution of human beings (output at least 1 000 V)

Air-tight  vaults,  made  of  e.g.  steel  and  glass,  designed  or
modified for the purpose of execution of human beings by the
administration of a lethal gas
Automatic  drug  injection  systems  designed  or  modified  for
the  purpose  of  execution  of  human  beings  by 
the
administration of a lethal chemical substance

Electric-shock  belts  designed  or  modified  for  restraining
human beings by the administration of electric shocks equal to
or exceeding 50 000 V
Leg-irons, gang-chains and shackles, designed for restraining
human  beings,  except  handcuffs  for  which  the  overall
dimension  including  chain,  measured  from  the  outer  edge  of
one cuff  to  the outer edge of  the  other  cuff,  does  not  exceed
240 mm when locked
Individual cuffs or shackle bracelets, designed for restraining
human  beings,  having  a  minimum 
internal  perimeter
exceeding 190 mm when fully locked
Thumb-cuffs  and  thumb-screws,  including  serrated  thumb-
cuffs

Components designed or modified for any of the above

17

List of equipment and products referred to in Article 5

ANNEX II

Equipment and products that could be used for the purpose of capital punishment or for the
purpose of torture and other cruel, inhuman or degrading treatment or punishment.

CN code

Description

ex 9401 61 00
ex 9401 69 00
ex 9401 71 00
ex 9401 79 00
ex 9402 90 00
ex 9403 20 91
ex 9403 20 99
ex 9403 50 00
ex 9403 70 90
ex 9403 80 00
ex 8543 89 95
ex 9304 00 00

ex 8424 20 00
ex 9304 00 00

ex 2926 90 95

ex 2926 90 95

ex 2914 70 90

ex 2934 99 90
ex 2924 29 95

ex 2939 99 90

Restraint chairs and shackle boards

Portable devices designed or modified for the purpose of riot
control  or  self-protection  by  the  administration  of  an  electric
shock (high frequency pulses equal to or exceeding 50 000 V),
including  but  not  limited  to  electric-shock  batons,  electric
shock shields, stun guns and electric shock dart guns (tasers)
Portable devices designed or modified for the purpose of riot
control  or  self-protection  by 
the  administration  of  an
incapacitating  chemical  substance  such  as  tear  gas,  OC
(oleoresin  capsicum  or  pepper  spray)  and  PAVA  (pelargonic
acid vanillylamide, synthetic pepper spray)
Components  specially  designed  or  modified  for  any  of  the
above
α-Bromophenylacetonitrile  (α-bromobenzyl  cyanide)  (CA)
(CAS 5798-79-8)
(2-chlorobenzylidene)malononitrile
(o-chlorobenzalmalononitrile) (CS) (CAS 2698-41-1)
2-chloroacetophenone (Phenylacyl chloride) (CN)
(CAS 532-27-4)
Dibenz-[b,f]-[1,4]oxazepine (CR) (CAS 257-07-8)
Pelargonic  acid  vanillylamide  (PAVA)  or  synthetic  pepper
spray (CAS 2444-46-4)
Oleoresin capsicum (OC) or pepper spray (CAS 8023-77-6)

ANNEX III

List of competent authorities referred to in Article 6

(to be completed by the Member States)

18