Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EC) No 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual use items
Date: 2010-09-27
Institutions: European Commission
Subjects: dual-use good, export monitoring, free movement of goods, technology

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EUROPEAN COMMISSION 

Brussels, 27.9.2010 
COM(2010) 509 final 

2010/0262 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 428/2009 setting up a Community regime for the control 
of exports, transfer, brokering and transit of dual use items  

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EXPLANATORY MEMORANDUM 

The  EU  dual-use  export  control  system,  as  set  out  in  Regulation  428/20091,  requires  an 
authorisation for the export of dual-use items2 listed in the Annex to the Regulation.  

Decisions  to  control  the  export  of  dual-use  items  are  taken  by  consensus  in  international 
export  control  regimes  (Australia  Group  (AG)  for  biological  and  chemical  items;  Nuclear 
Suppliers  Group  (NSG)  for  civil  nuclear  items,  the  Missile  Technology  Control  Regime 
(MTCR)  and  the  Wassenaar  Arrangement  (WA)  for  conventional  arms  and  dual-use  goods 
and  technologies).  These  decisions  are  taken  in  order  to  limit  the  risk  of  sensitive  dual-use 
items  being  used  for  military  purposes  and/or  in  proliferation  programmes.  With  a  view  to 
making such controls as effective as possible, the international export control regimes bring 
together the major suppliers of dual-use items. By agreeing to control trade in specific items, 
they  effectively  work  together  to  limit  the  proliferation  risk,  while  ensuring  that  legitimate 
trade is not hindered. 

Technological progress in today's world means that there is a need to regularly update the list 
of  controlled  items.  Article  15  of  Regulation  428/2009  specifies  that  "the  list  of  dual-use 
items  set  out  in  Annex  I  shall  be  updated  in  conformity  with  the  relevant  obligations  and 
commitments, and any modification thereof, that Member States have accepted as members of 
the international non-proliferation regimes and export control arrangements, or by ratification 
of relevant international treaties". 

The  last  update  of  Annex  I  of  the  Regulation  occurred  on  the  occasion  of  the  adoption  of 
Regulation 428/2009 on 5 May 2009. Since this time, all of the international export control 
regimes have taken decisions to modify and update their control lists. Consequently, there is a 
need to make the necessary modifications to Annex I. These modifications will ensure that the 
commitments made by EU Member States in the regimes are fully applied across the entire 
EU and that EU exporters have legal certainty as to which items require export licenses. 

To  facilitate  the  decision  making  process,  a  summary  of  the  necessary  changes  is  detailed 
below. For the purpose of clarity and ease of use of Annex I, the Commission is proposing to 
replace the entire Annex I with a new text incorporating the changes outlined below. 

Modifications to the definitions and the general note 

Definition and General 
Note 

Regime 

Nature of change 

General Note 4. 

AG 

Note for CAS number added 

compensations 

WA 

Definition amended 

All 
available 

CE 

Civil aircraft 

WA 

WA 

Definition deleted 

Reference to Category amended 

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COUNCIL REGULATION (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the 
control of exports, transfer, brokering and transit of dual-use items 
Dual-use items are defined in Regulation 428/2009 as "items, including software and technology, which 
can be used for both civil and military purposes, and shall include all goods which can be used for both 
non-explosive  uses  and  assisting  in  any  way  in  the  manufacture  of  nuclear  weapons  or  other  nuclear 
explosive devices". 

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Computer element 

Critical temperature 

Digital transfer rate 

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WA 

WA 

Definition deleted 

Reference to Category amended 

Reference to Category amended 

Dynamic adaptive routing  WA 

Definition deleted 

Energetic materials 

FADEC Systems 

FADEC 

Fibrous  or 
materials 

WA 

WA 

WA 

New definition 

New definition 

Definition deleted 

filamentary 

WA 

Reference to Category amended 

Focal plane array 

Full  Authority  Digital 
Engine Control 

WA 

WA 

Reference to Category amended 

Definition deleted 

Fuel cell 

WA  

New definition 

Hybrid computer 

WA 

Definition deleted 

Interconnecting 
sensors   

Laser 

Laser duration 

radar 

WA 

Definition deleted 

WA 

WA 

Nota Bene amended 

Reference to Category amended 

Personalized smart card 

WA 

Definition deleted 

Production facilities 

MTCR 

Definition amended 

Q-switched laser 

Real time processing 

Source code 

Space-qualified 

Superconductive 

WA 

WA 

WA 

WA 

WA 

Definition deleted 

Reference to Category amended 

Reference to Category amended 

Reference to Category amended 

Reference to Category amended 

Modifications to items in categories 1-9 

Category 1 

1A001.b. 

WA 

Sub-entry for components for fluorinated compounds amended 

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1A002 Note 1 

1A007 

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Edit 

1B001, a., b. & Tech Note  WA 

1B001.g.  

1C002.b. 

1C006.c.1. 

1C007.f.1. 

1C008.b.1.a. 

WA 

WA 

WA 

WA 

WA 

Note 1 to control entry for composite structures amended 

Control entry amended to define energetic materials 

Control entry and sub-entries for composite materials production 
equipment amended; new Technical Note added 

New sub-entry for tow placement machines added 

Sub-entry  for  metal  alloy  made  from  powder  or  particulate 
material amended 

CAS number added to sub-entry for dibromotetrafluoroethane 

CAS number added to sub-entry for aluminum oxide 

CAS number added to sub-entry for certain thermoplactic liquid 
crystal copolymers 

1C008.b.2.a., b. & c. 

WA 

CAS number added to sub-entry for certain thermoplactic liquid 
crystal copolymers 

1C010, a. & c. 

WA 

Control entry and sub-entries for fibrous and filamentary material 
amended. 

1C010.b. & Note 

WA 

Sub-entry  and  parameters  for  carbon  fibrous  and  filamentary 
material amended; Note amended and expanded 

1C010.e.,  Note  1  &  2,  & 
Tech Note 

WA 

Sub-entry  for  prepregs  re-written  including  new  Notes  and 
Technical Note 

1C011.c. 

WA 

CAS number added to sub-entry for guanidine nitrate 

1C111.a.4.k. 

MTCR 

CAS  number  added  to  sub-entry  for  diimido  oxalic  acid 
dihydrazine 

1C111.a.4.n. 

MTCR 

CAS number added to sub-entry for hydrazinium diperchlorate 

1C111.a.5,  5.a.,  5.b.,  Note 
& Tech Note 

MTCR 

New  sub-entry  for  high  energy  density  material  including  Note 
and Technical Note 

1C111.c.6.h. 

MTCR 

CAS number added to sub-entry for diethyl ferrocene 

1C111.c.6.o. Note 

MTCR 

New decontrol note for certain ferrocene derivatives 

1C117,  a.,  b.,  c.  &  Tech 
Note 

MTCR 

Control  entry for  tungsten  and  molybdenum  material  re-written; 
new Technical Note added 

1C226 

1C351 

1E002.c.1.c.1. 

MTCR 

Control entry amended due to amendment in 1C117 

AG 

WA 

Sub-entry for white pox virus removed 

CAS number for zirconia added to sub-entry  

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Category 2 

2B006.a. & Tech Note 

WA 

Sub-entry for Coordinate Measuring Machines amended and new 
Technical note added 

2B206.a. & Tech Note 

NSG 

Sub-entry 
Technical note 1 deleted; Technical Note 2 renamed 

for  Coordinate  Measuring  Machines  amended; 

2B350.a.,  b.,  c.,  d.,  e.,  f., 
h., i., j. & Tech Note 2 

AG 

Local  definition  of  alloys  added  to  sub-entries  for  corrosive 
resistant  chemical  manufacturing  equipment  and  new  Technical 
Note added for alloys. 

2B350.g.8. & Tech note 

AG  & 
Edit 

Technical  note  added  for  nominal  size  of  valve  and  minor 
editorial change to sub-entry 

2B351 

AG 2008  Control entry for toxic gas monitoring systems amended. 

2E003.f. Note N.B. 

Edit 

Missing N.B. for Deposition Techniques Table added. 

Category 3 

3A001.b.8.b. 

3A001.b.11. & N.B. 

3A002.b. 

3A002.e., 1., & 2. 

3A228.c. 

3B001.c.1. & 2. 

WA 

WA 

WA 

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Edit 

WA 

Sub-entry amended. 

New  sub-entry  for  frequency  synthesizer  assemblies;  new  Nota 
Bene. 

Sub-entry deleted and control moved to 3A001.b.11. 

Sub-entry for network analysers amended to include 2 new sub-
paragraphs. 

Sub-entry  for  switching  devices  amended  to  avoid  double 
coverage. 

Sub-entry for anisotropic plasma dry etching equipment amended 
to include 2 new sub-paragraphs. 

3B001.e.,  Note  &  Tech 
Note 

WA 

Sub-entry  for  automatic  loading  wafer  handling  system  and 
associated Note amended and new Technical Note added. 

Category 4 

4A001.b. 

WA 

Sub-entry  for  computers  having  information  security  functions 
deleted. Controls now to be found in Cat 5 Part 2. 

4A003.b. 

WA 

APP parameter for sub-entry for digital computers amended. 

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4A003.g. 

4D Note 

4D001.b.1. 

4D003 

4E001.b.1. 

Category 5 Part 1 

Cat 5 Pt 1 Note1 N.B. 

5B001.b.1. Tech Note 

5B001.b.3. 

5D001.d.1. 

5D001.d.3. 

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WA 

WA 

WA 

WA 

WA 

WA 

Sub-entry  for  equipment  aggregating  the  performance  of  digital 
computers amended. 

Note amended 

Parameter  in  sub-entry  for  software  for  digital  computers 
amended. 

Control entry deleted. Controls now to be found in Cat 5 Part 2. 

Parameter  in  sub-entry  for  technology  for  digital  computers 
amended. 

New Nota Bene added for laser telecommunications equipment. 

Sub-entry  and  Tech  Note  deleted  for  certain  equipment 
employing digital techniques. 

Sub-entry  deleted  for  certain  equipment  employing  optical 
switching. 

Sub-entry  deleted  for  certain  software  for  equipment  employing 
digital techniques. 

Sub-entry  deleted  for  certain  software  for  equipment  employing 
optical switching. 

5E001.c.1. & Tech Note 

WA 

Parameter  in  sub-entry  for  certain  technology  for  equipment 
employing digital techniques amended and Tech Note amended. 

5E001.c.3. 

WA 

Sub-entry  for  certain  technology  for  equipment  employing 
optical switching amended. 

Category 5 Part 2 

Cat 5 Pt 2 Note 4 

WA 

New  decontrol  Note 
cryptography. 

for  certain  equipment  employing 

5A002.a. & N.B. 

WA 

Sub-entry  for 
amended. 

information  security 

items  and  Nota  Bene 

5A002.a.  Note  a.  &  Tech 
Note 

5A002.a. Note b. 

5A002.a. Note c. 

WA 

WA 

Note a. amended and new Tech Note added.  

Note b. deleted as now covered by new Note 4. 

Note c. deleted as now covered by new Note 4. 

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5A002.a. Note h. 

WA 

Note h. deleted as now covered by new Note 4. 

Category 6 

6A001.a.1.a. 

6A001.a.1.a.2. 

WA 

WA 

6A001.a.1.d., d.1., & d.2.  WA 

Sub-entry for bathymetric survey systems amended. 

Sub paragraph amended. 

Sub  entry  and  sub-paragraphs  for  certain  acoustic  systems 
amended. 

6A001.a.1.e.,  N.B  &  Tech 
Note 

WA 

New sub-entry for active individual sonars, including Nota Bene 
and Tech Note. 

6A002.c.2 

6A003 N.B. 

6A003.b.2. Note 

6A003.b.4. 

6A003.b.4. Note 

WA 

WA 

WA 

Edit 

Edit 

Sub-entry for FPA direct view imaging equipment amended. 

Nota Bene amended to 

New decontrol Note added to sub-entry for scanning cameras. 

Editorial amendment to imaging camera sub-entry 

Editorial amendment to imaging camera Note. 

6A003.b.4.c., Note 4.c. 

WA 

New sub-paragraph added to decontrol Note. 

6A005.d.1. Tech Notes 1., 
2. & 3. 

WA 

Technical  Note  to  semiconductor  lasers  sub-entry  amended  to 
include 2 new Tech Notes. 

6A005.d.1.b.1. 

6A005.d.1.c. 

WA 

WA 

Parameter  in  sub-entry  for  individual  multiple-transverse  mode 
semiconductor laser amended. 

Sub-entry  for  individual  semiconductor  laser  arrays  amended  to 
bars and parameter amended. 

6A005.d.1.d.,  d.1.,  d.2., 
d.3., d.4. & Tech Note 

WA 

Sub-entry  for  semiconductor  stacked  arrays  rewritten  and 
includes 4 new sub-paragraphs and Tech Note. 

6A005.d.1.e. & Notes 

WA 

New sub-entry for semiconductor stacked arrays including 2 new 
sub-paragraphs and 3 new Notes. 

6A008 & Note 

6A008.e. 

6A008.f. 

6A008.l.4. 

WA 

WA 

WA 

WA 

Decontrol  Note  amended  to  include  certain  precision  approach 
radar. 

Sub-entry  for  radars  incorporating  electronically  steerable  array 
antennas amended. 

Note  to  sub-entry  for  radar  capable  of  heightfinding  non-
cooperative targets deleted. 

Sub-paragraph  for  radar  having  data  processing  sub-systems 
amended. 

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6C004.b.1., 2. & 3. 

6C004.e. 

6D003.a.5. 

6D003.h.1. 

WA 

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CAS numbers added to sub-parameters for electro-optic material. 

CAS numbers added to sub-entry for optical glass material. 

New  sub-entry  for  certain  software  for  detecting  divers  or 
swimmers. 

Sub-entry  for  Air  Traffic  Control  software  rewritten  to  include 
the 2 sub-paragraphs. 

Category 7 

7A005, a., b., Note & Tech 
Note 

WA 

Control  entry  for  global  navigation  satellite  systems  re-written 
including new Note and Technical Note 

7A101 Note 

MTCR 

Note to control on linear accelerators amended. 

7B001 Tech Note 2 

7D003.b.2. 

7E004.b.6. N.B. 

WA 

WA 

WA 

Tech Note amended 

Sub-entry for software for GNSS reference data amended 

Nota Bene amended. 

Category 8 

8A002.f. 

WA 

Control entry for electronic underwater imaging systems deleted 
from Cat 8. Controls now to be found in Cat 6. 

8A002.j. 

Edit 

Editorial amendment to define Fuel cell. 

Category 9 

9A001.a. 

9A003 

9A101 

9B002 

WA 

WA 

Sub-entry  for  aero  gas  turbines  amended  to  include  FADEC 
technology 

Control entry for components for gas turbines propulsion systems 
amended to include FADEC technology 

MTCR 

Control entry for turbojet and turbofan engines amended. 

WA 

Control  entry  for  certain  test  systems  for  gas  turbines  engine 
development amended to include FADEC technology 

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9D003 

9E003.a.9. 

9E003.h. & Note 

WA 

WA 

WA 

Control for software for FADEC systems amended 

Sub-entry for FADEC technology moved to 9E003.h. 

New sub-entry for FADEC technology including a new Note 

Commission proposal 

In the light of the above considerations it is necessary to replace Annex 1 of Regulation (EC) 
No 428/2009. 

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2010/0262 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 428/2009 setting up a Community regime for the control 
of exports, transfer, brokering and transit of dual use items  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 207, 

Having regard to the proposal from the Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime 
for  the  control  of  exports,  transfer,  brokering  and  transit  of  dual  use  items3  requires 
dual-use items (including software and technology) to be subject to effective control 
when they are exported from or transit through the Union, or are delivered to a third 
country as a result of brokering services provided by a broker resident or established in 
the Union. 

In  order  to  enable  Member  States  and  the  European  Union  to  comply  with  their 
international commitments, Annex I to Regulation (EC) No 428/2009 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.  These 
commitments  were  taken  within  the  context  of  participation  in  the  Australia  Group, 
the  Missile  Technology  Control  Regime  (MTCR),  the  Nuclear  Suppliers  Group 
(NSG), the Wassenaar Arrangement and the Chemical Weapons Convention (CWC). 

Article  15  of  Regulation  (EC)  No  428/2009  provides  for  Annex  I  to  be  updated  in 
conformity  with  the  relevant  obligations  and  commitments,  and  any  modification 
thereof,  that  Member  States  have  accepted  as  members  of  the  international  non-
proliferation  regimes  and  export  control  arrangements,  or  by  ratification  of  relevant 
international treaties. 

Annex I to Regulation (EC) No 428/2009 should be amended in order to take account 
of  changes  agreed  within  the  Australia  Group,  the  Nuclear  Suppliers  Group,  the 
Missile  Technology  Control  Regime  and  the  Wassenaar  Arrangement,  subsequent  to 
the adoption of that Regulation. 

(5) 

In order to ease references for export control authorities and operators, an updated and 
consolidated version of Annex I to Regulation (EC) No 428/2009 should be published. 

(6) 

Regulation (EC) No 428/2009 should therefore be amended accordingly, 

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OJ L 134, 29.05.2009, p. 1.  

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HAVE ADOPTED THIS REGULATION: 

Article 1 

Annex I to Regulation (EC) No 428/2009 shall be replaced by the Annex to this Regulation. 

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

Article 2 

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

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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