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: 2011-11-07
Institutions: European Commission
Subjects: dual-use good, export (EU), export monitoring, nuclear non-proliferation, nuclear technology

EUROPEAN COMMISSION 

Brussels, 7.11.2011 
COM(2011) 704 final 

2011/0310 (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  

 
 
  
 
EXPLANATORY MEMORANDUM 

The EU dual-use export control system, as set out in Regulation (EC) No 428/20091, requires 
an authorisation for the export of dual-use items2 listed in Annex I to the Regulation. Article 
9(1)  of  the  Regulation  specifies  that  EU  General  Export  Authorisations  are  one  of  the  four 
available  types  of  export  authorisations  that  may  be  used  to  export  dual-use  items  from  the 
EU.  Annex  II  to  Regulation  (EC)  No  428/2009  contains  the  EU  General  Export 
Authorisations currently in force.  

Updates of the EU control list (Annex I of Regulation 428/2009) 

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). The purpose of these export control regimes is to limit the risk of sensitive 
dual-use  items  being  used  for  military  purposes and/or  in  proliferation  programmes.  With  a 
view  to  making  export  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.  While  decisions  of  these  international  regimes  are  not  legally  binding, 
Article 15 of the Regulation 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 international export control regimes take control list decisions approximately 4 times per 
year. These updates need to be integrated into EU legislation on a regular and timely basis due 
to their security and  trade implications.  On  the  one  hand,  a  decision by international export 
control  regimes  to  add  new  items  to  the  control  lists  means  that  these  additional  items  also 
need to be controlled consistently by the entire EU for security reasons. On the other hand, a 
decision by international export control regimes to stop controlling certain items needs to be 
translated into EU legislation as quickly as possible in order to allow EU exporters to compete 
on the global market.  

Currently, any update of Regulation (EC) No 428/2009 including of Annex I requires the use 
of  the  ordinary  legislative  procedure.  At  the  same  time,  given  the  technical  nature  of  these 
amendments and the fact that these changes need to be in conformity with decisions taken in 

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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 article 2(1) of Regulation (EC) No 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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the international export control regimes, there is little margin for manoeuvre for introducing 
modifications to the amendments agreed in the regimes.  

Consequently,  it  is  necessary  to  introduce  delegated  acts  in  order  to  update  Annex  I  of 
Regulation (EC) No 428/2009 on a regular basis. This approach would allow the Commission 
to make the necessary updates as and when required. 

Necessary  modifications  to  EU  General  Export  Authorisations  (Annex  II  of  Regulation 
(EC) No 428/2009) 

EU General Export Authorisations, as set out in Article 9(1) and Annex II of Regulation (EC) 
No  428/2009,  have  proven  to  be  highly  successful  tools  facilitating  lower  risk  exports  of 
certain items to certain destinations. A single EU General Export Authorisation (EU001) has 
existed for many years allowing for facilitated exports of most controlled items to seven low-
risk  destinations  (Australia,  Canada,  Japan,  New  Zealand,  Norway,  Switzerland  and  USA). 
The  Commission  proposed  in  December  2008  to  introduce  six  new  EU  General  Export 
Authorisations3.  An  agreement  concerning  these  new  Authorisations  was  reached  in  mid-
2011.  

The  contents  of  existing  and  future  EU  General  Export  Authorisations  need  to  be 
continuously monitored in order to ensure that only low-risk transactions are covered by the 
Authorisations.  Given  the  fast  pace  of  developments  around  the  world,  there  is  a  need  to 
ensure  that  existing  EU  General  Export  Authorisations  can  be  modified  rapidly  as  regards 
their  destination  and  item  scopes,  so  that  changing  global  circumstances  can  be  properly 
reflected in the EU export control system.  

Consequently, it is necessary to introduce delegated acts in order to allow the Commission to 
rapidly  remove  destinations  and/or  items  from  the  scope  of  existing  EU  General  Export 
Authorisations.  

Existing legislative proposals on dual-use export control issues 

The European Parliament and the Council are currently dealing with two legislative proposals 
that will amend Regulation (EC) No 428/2009: 

(1) 

(2) 

The  first  proposal  (COM(2008)  854)  aims  at  introducing  new  EU  General  Export 
Authorisations.  The  European  Parliament  voted  in  favour  of  the  proposal  on  27 
September  2011.  Once  adopted,  this  amending  Regulation  will  also  modify  the 
terminology used  in  Regulation (EC) No 428/2009 (references to 'Community'  will 
whenever possible be changed to 'Union'). 

The  second  proposal  (COM(2010)  509)  aims  at  updating  the  EU  control  list  by 
introducing modifications agreed in the international export control regimes in 2009. 
The European Parliament voted in favour of the proposal on 13 September 2011.  

Commission proposal 

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COM(2008) 854 final 

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

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2011/0310 (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 thereof, 

Having regard to the proposal from the European 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  items4  requires 
such  items  to  be  subject  to  effective  control  when  they  are  exported  from  or  transit 
through  the  European  Union  (EU),  or  are  delivered  to  a  third  country  as  a  result  of 
brokering services provided by a broker resident or established in the EU. 

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  that  are  subject  to  controls  in  the  European  Union. 
Decisions  on  the  items  subject  to  controls  are  taken  within  the  framework  of  the 
Australia Group (AG), 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 needs to be updated regularly so as to ensure 
full compliance with international security obligations, to guarantee transparency, and 
maintain competitiveness of exporters. Delays with regard to the updating of the EU 

4 

OJ L 134, 29.05.2009, p. 1.  

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(5) 

(6) 

(7) 

(8) 

control  list  may  have  negative  effects  on  security  and  international  non-proliferation 
efforts,  as  well  as  on  the  performance  of  economic  activities  by  exporters  in  the 
European  Union.  At  the  same  time,  the  technical  nature  of  the  amendments  and  the 
fact that these changes shall be in conformity with decisions taken in the international 
export control regimes, means that an accelerated procedure should be used to put the 
necessary updates into force in the European Union. 

Article  9(1)  of  Regulation  (EC)  No  428/2009  introduces  EU  General  Export 
Authorisations  as  one  of  the  four  types  of  export  authorisations  available  under  the 
Regulation. Such General Export Authorisations allow exporters established in the EU 
to  export  certain  specified  items  to  certain  specified  destinations  subject  to  the 
conditions of the General Authorisations.  

Annex  II  to  Regulation  (EC)  No  428/2009  sets  out  the  EU  General  Export 
Authorisations  currently  in  force  in  the  EU.  Given  the  nature  of  such  EU  General 
Export  Authorisations,  there  may  be  a  need  to  remove  certain  destinations  and/or 
items  from  the  Authorisations,  in  particular  if  changing  circumstances  show  that 
facilitated  export  transactions  should  no  longer  be  authorised  under  an  EU  General 
Export  Authorisation  for  a  particular  destination  and/or  item.  Such  a  removal  of  a 
destination and/or item from the scope of an EU General Export Authorisation should 
not preclude an exporter from applying for another type of export authorisation under 
the relevant provisions of Regulation (EC) No 428/2009. 

In order to ensure regular and timely updates of the EU control list in conformity with 
the  obligations  and  commitments  taken  by  Member  States  within  the  international 
export control regimes, the power to adopt acts in accordance with Article 290 of the 
Treaty  on  the  Functioning  of  the  European  Union  should  be  delegated  to  the 
Commission in respect of amending Annex I to Regulation (EC) No 428/2009 within 
the  scope  of  Article  15  of  the  Regulation.  It  is  of  particular  importance  that  the 
Commission carry out appropriate consultations during its preparatory work, including 
at expert level. 

In  order  to  allow  for  a  swift  EU  response  to  changing  circumstances  as  regards  the 
assessment of the sensitivity of exports under EU General Export Authorisations, the 
power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of 
the  European  Union  should  be  delegated  to  the  Commission  in  respect  of  amending 
Annex  II  to  Regulation  (EC)  No  428/2009  as  regards  the  removal  of  destinations 
and/or items from the scope of the EU General Export Authorisations. Given that such 
modifications should only be made in response to an increase in the assessment of the 
risk  of  the  relevant  exports  and  that  the  continued  use  of  General  Export 
Authorisations  for  these  exports  could  have  an  adverse  effect  on  the  security  of  the 
European  Union  and  its  Member  States,  an  urgency  procedure  may  be  used  by  the 
Commission. 

(9) 

The  Commission,  when  preparing  and  drawing-up  delegated  acts,  should  ensure  a 
simultaneous,  timely  and  appropriate  transmission  of  relevant  documents  to  the 
European Parliament and Council. 

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

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HAVE ADOPTED THIS REGULATION: 

Regulation (EC) No 428/2009 is amended as follows: 

Article 1 

(1) 

The following paragraphs are added at the end of paragraph 1 in Article 9: 

"The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 23a concerning the removal of destinations and items from the scope of EU 
General Export Authorisations included in Annex II.  

Where, in the case of a significant change of circumstances as regards the assessment 
of the sensitivity of exports under an EU General Export Authorisation included in 
Annex II, imperative grounds of urgency require a removal of particular destinations 
and/or items from the scope of an EU General Export Authorisation, the procedure 
provided  for  in  Article  23b  shall  apply  to  delegated  acts  adopted  pursuant  to  this 
Article."  

(2) 

The following paragraph is added as paragraph 3 in Article 15: 

"3. The Commission shall be empowered to adopt delegated acts in accordance with 
Article  23a  concerning  updating  the  list  of  dual-use  items  set  out  in  Annex  I.  The 
updating of Annex I shall be performed within the scope set out in paragraph 1."  

(3) 

The following article 23a is inserted: 

"1. The power to adopt delegated acts is conferred on the Commission subject to the 
conditions laid down in this Article.  

2. The delegation of power referred to in Articles 9(1) and 15(3) shall be conferred 
for  an  indeterminate  period  of  time  from  the  date  of  entry  into  force  of  Regulation 
(EU) No ../… [this Regulation]. 

3. The delegation of powers referred to in Articles 9(1) and 15(3) may be revoked at 
any  time  by  the  European  Parliament  or  by  the  Council.  A  decision  of  revocation 
shall put an end to the delegation of the power specified in that decision. It shall take 
effect the day following the publication of the decision in the Official Journal of the 
European Union or at a later date specified therein. It shall not affect the validity of 
any delegated acts already in force.  

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously 
to the European Parliament and to the Council.  

5. A delegated act adopted pursuant to Articles 9(1) and 15(3) shall enter into force 
only  if  no  objection  has  been  expressed  either  by  the  European  Parliament  or  the 
Council  within  a  period  of  2  months  of  notification  of  that  act  to  the  European 
Parliament  and  the  Council  or  if,  before  the  expiry  of  that  period,  the  European 
Parliament  and  the  Council  have  both  informed  the  Commission  that  they  will  not 
object. That  period  shall  be  extended  by  2  months at the initiative of the European 
Parliament or the Council." 

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(4) 

The following article 23b is inserted: 

"1. Delegated acts adopted under this Article shall enter into force without delay and 
shall apply as long as no objection is expressed in accordance with paragraph 2. The 
notification  of  a  delegated  act  to  the  European  Parliament  and  to  the  Council  shall 
state the reasons for the use of the urgency procedure. 

2.  Either  the  European  Parliament  or  the  Council  may  object  to  a  delegated  act  in 
accordance  with  the  procedure  referred  to  in  Article  23a  (5).  In  such  a  case,  the 
Commission  shall  repeal  the  act  without  delay  following  the  notification  of  the 
decision to object by the European Parliament or the Council." 

This Regulation shall enter into force on the twentieth 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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