COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of 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: 2014-03-06
Institutions: European Commission
Subjects: dual-use good, export (EU), export monitoring, nuclear non-proliferation, nuclear technology

EUROPEAN 
COMMISSION 

Brussels, 6.3.2014  
COM(2014) 151 final 

2011/0310 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of 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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2011/0310 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

position of the Council on the adoption of 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 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2011) 704 final – 2011/0310 COD): 

7 November 2011 

Date of the position of the European Parliament, first reading: 

23 October 2012 

Date of adoption of the position of the Council: 

3 March 2014 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The proposal provides for amendments to Council Regulation (EC) No 428/2009 as regards 
the procedure to update the EU control list.  

The  objective  is  to  empower  the  Commission  to  update  the  EU  list  of  controlled  dual-use 
items in Annex I to Regulation (EC) No 428/2009 through delegated acts, in accordance with 
Article 290 TFEU, in order to ensure full compliance with international security obligations 
and  to  maintain  the  competitiveness  of  EU  economic  operators.  The  Commission  proposal 
also aims at empowering the Commission to remove 'destinations' (i.e. countries) from the list 
of  countries  benefiting  from  EU  General  Export  Authorisations  (EUGEA)  in  Annex  II,  in 
order to allow for a swift EU response to international circumstances. 

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

The  Council's  position  endorses  the  core  elements  of  the  Commission’s  proposal  but 
envisages some amendments to the original Commission proposal with respect to the removal 
of certain destinations (countries) benefiting from facilitated export procedures and the scope 
of delegated acts. 

The  Council  position  suggests  aligning  Parliament's  scrutiny  of  delegated  power  to  the 
agreement on "Trade Omnibus II". A "Commission statement on delegated acts", recalling the 
Commission’s  commitment  under  the  framework  agreement  to  provide  information  to 
Parliament on expert groups, will be attached to the Regulation. 

The Council position also envisages certain amendments as regards the review and validity of 
the delegation of powers, which would be limited to 5 years and tacitly extended subject to 

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presentation  of  a  report,  unless  the  European  Parliament  or  the  Council  opposes  such 
extension no later than 3 months before the end of the period. 
Lastly,  the  Council  position  includes  an  accompanying  "Joint  Statement  by  the  European 
Parliament,  the  Council  and  the  Commission  on  the  review  of  the  dual-use  export  control 
system", as well as a "Commission statement on updating the Regulation" (see below). 

4. 

CONCLUSION 

The Commission accepts the position taken by the Council. 

_______________________ 

STATEMENTS 

Joint  Statement  by  the  European  Parliament,  the  Council  and  the  Commission  on  the 
review of the dual-use export control system 

The  European  Parliament,  the  Council  and  the  Commission  recognise  the  importance  of 
continuously enhancing the effectiveness and coherence of the EU's strategic export controls 
regime,  ensuring  high  level  of  security  and  adequate  transparency  without  impeding 
competiveness and legitimate trade in dual-use items. 

The  three  institutions  consider  that  modernisation  and  further  convergence  of  the  system  is 
needed  in  order  to  keep  up  with  new  threats  and  rapid  technological  changes,  to  reduce 
distortions, create a genuine common market for dual-use items (uniform level playing field 
for exporters) and continue serving as an export control model for third countries. 

To this end, it is essential to streamline the process for updating the control lists (Annexes to 
the Regulation); strengthen risk assessment and exchange of information, develop improved 
industry standards, and reduce disparities in implementation. 

The European Parliament, the Council and the Commission acknowledge the issues regarding 
the export of certain information and communication technologies (ICT) that can be used in 
connection  with  human  rights  violations  as  well  as  to  undermine  the  EU's  security, 
particularly  for  technologies  used  for  mass-surveillance,  monitoring,  tracking,  tracing  and 
censoring, as well as for software vulnerabilities. 

Technical consultations have been initiated in this respect, including in the framework of EU 
Dual Use Peer Visit, the Dual Use Coordination Group, and the export control regimes, and 
actions  continue  to  be  taken  to  address  situations  of  urgency  through  sanctions  (pursuant  to 
Article  215  TFEU),  or  national  measures.  Efforts  will  also  be  intensified  to  promote 
multilateral agreements in the context of export control regimes, and options will be explored 
to  address  this  issue  in  the  context  of  the  on-going  review  of  EU  dual-use  export  control 
policy,  and  the  preparation  of  a  Commission  Communication.  In  this  context  the  three 
institutions took note of the agreement on 4 December 2013 by the Participating States of the 
Wassenaar  Arrangement  to  adopt  controls  on  complex  surveillance  tools  that  enable 
unauthorised access to computer systems, and on IP-network surveillance systems. 

The  European  Parliament,  the  Council  and  the  Commission  also  commit  to  further 
development of existing "catch-all" mechanism for dual-use items falling outside the Annex I 
of  the  Regulation,  in  order  to  further  enhance  the  export  control  system  and  its  application 
within the European single market. 

Commission Statement on delegated acts 

In  the  context  of  this  Regulation,  the  Commission  recalls  the  commitment  it  has  taken  in 
paragraph 15 of the Framework Agreement on relations between the European Parliament and 

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the European Commission to provide to the Parliament full information and documentation on 
its  meetings  with  national  experts  within  the  framework  of  its  work  on  the  preparation  of 
delegated acts. 

Commission Statement on plans for updating the Regulation 

In  order  to  ensure  a  more  integrated,  efficient  and  coherent  European  approach  to  the 
movement  (exports,  transfer,  brokering  and  transit)  of  strategic  items,  the  Commission  will 
put forward a new proposal for updating the Regulation as expeditiously as possible. 

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