Amendments adopted by the European Parliament on 17 January 2018 on the proposal for a regulation of the European Parliament and of the Council setting up a Union regime for the control of exports, transfer, brokering, technical assistance and transit of dual-use items (recast) (COM(2016)0616 — C8-0393/2016 — 2016/0295(COD))
Date: 2018-01-17
Institutions: Committee on Foreign Affairs, Committee on International Trade, Committee on Legal Affairs, European Parliament
Subjects: customs regulations, dual-use good, export (EU), export monitoring, intra-EU trade, technical cooperation, trade restriction, transit




C_2018458EN.01018701.xml










19.12.2018   


EN


Official Journal of the European Union


C 458/187






P8_TA(2018)0006
Control of exports, transfer, brokering, technical assistance and transit of dual-use items ***I
Amendments adopted by the European Parliament on 17 January 2018 on the proposal for a regulation of the European Parliament and of the Council setting up a Union regime for the control of exports, transfer, brokering, technical assistance and transit of dual-use items (recast) (COM(2016)0616 — C8-0393/2016 — 2016/0295(COD)) (1)

(Ordinary legislative procedure: — recast)
(2018/C 458/12)

Amendment 1


Proposal for a regulation


Recital 3








Text proposed by the Commission




Amendment











(3)


An effective common system of export controls on dual-use items is therefore necessary to ensure that the international commitments and responsibilities of the Member States and of the Union, especially regarding non-proliferation, are complied with.












(3)


An effective common system of export controls on dual-use items is therefore necessary to ensure that the international commitments and responsibilities of the Member States and of the Union, especially regarding non-proliferation 
and human rights
, are complied with.









Amendment 2


Proposal for a regulation


Recital 5








Text proposed by the Commission




Amendment











(5)




Considering the emergence of
 new 
categories
 of dual-use items, and in response to calls from the European Parliament and 
indications
 that certain cyber-surveillance 
technologies exported from the Union
 have been misused by persons complicit in or responsible for directing or committing 
serious
 violations of human rights or international humanitarian law in 
situations of armed conflict or internal repression
, it is appropriate to control the export of those 
technologies in order to protect public security as well as public morals.
 These measures should not go beyond what is proportionate. They should, in particular, not prevent the export of information and communication technology used for legitimate purposes, including law enforcement and internet security research. The Commission, in close consultations with the Member States and stakeholders, 
will develop
 guidelines to support the practical applications of those controls.












(5)




Certain cyber-surveillance items have emerged as a
 new 
category
 of dual-use items 
that have been used to directly interfere with human rights, including the right to privacy, the right to data protection, freedom of expression
 and 
freedom of assembly and association, by monitoring or exfiltrating data without obtaining a specific
, 
informed and unambiguous authorization of the owner of the data and/or by incapacitating or damaging the targeted system. In
 response to calls from the European Parliament, and 
evidence
 that certain cyber-surveillance 
items
 have been misused by persons complicit in or responsible for directing or committing violations of 
international
 human rights 
law
 or international humanitarian law in 
countries where such violations have been established
, it is appropriate to control the export of those 
items. Controls
 should 
be based on clearly defined criteria.
 These measures should not go beyond what is 
necessary and
 proportionate. They should, in particular, not prevent the export of information and communication technology used for legitimate purposes, including law enforcement 
and network
 and internet security research 
for the purposes of authorised testing or the protection of information security systems
. The Commission, in close consultations with the Member States and stakeholders, 
should make available
 guidelines to support the practical applications of those controls 
upon entry into force of this Regulation. Serious violations of human rights refer to situations as described in point 2.6 of Section 2 of Chapter 2 of the User’s Guide to Council Common Position 2008/944/CFSP

 (1a)

as endorsed by the Foreign Affairs Council on 20 July 2015.











Amendment 3


Proposal for a regulation


Recital 6








Text proposed by the Commission




Amendment











(6)


As a result, it is also appropriate to 
revise the definition of dual-use items, and to
 introduce a definition of cyber-surveillance 
technology
. It should also be clarified that assessment criteria for the control of exports of 
dual-use
 items 
include considerations regarding their possible misuse in connection with acts of terrorism or human rights violations
.












(6)


As a result, it is also appropriate to introduce a definition of cyber-surveillance 
items
. It should also be clarified that assessment criteria for the control of exports of 
cyber-surveillance
 items 
take into account the direct and indirect impact of these items on human rights, as reflected in the User’s Guide to Council Common Position 2008/944/CFSP. A technical working group should be set up for the development of the assessment criteria, in cooperation with the European External Action Service (EEAS) and the Council Working Party on Human Rights (COHOM). In addition, an independent group of experts should be established within that technical working group. The assessment criteria should be publicly available and easily accessible.











Amendment 4


Proposal for a regulation


Recital 6 a (new)








Text proposed by the Commission




Amendment





 










(6a)






With the aim to define cyber-surveillance technology, items to be covered by this Regulation should include the telecommunication interception equipment, intrusion software, monitoring centers, lawful interception systems and data retention systems connected with such interception systems, devices for the de-codification of encryption, the recovery of hard disks, the circumvention of passwords and the analysis of biometric data as well as IP network surveillance systems.











Amendment 5


Proposal for a regulation


Recital 6 b (new)








Text proposed by the Commission




Amendment





 










(6b)






With regard to human rights assessment criteria, it is appropriate to refer to the Universal Declaration of Human Rights, the Charter of Fundamental Rights of the European Union, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the United Nations Human Rights Council Resolution on the Right to Privacy of 23 March 2017, the Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, the Report of the Special Rapporteur on the Right to Privacy of 24 March 2017, the Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism of 21 February 2017 and the Judgment of the European Court of Human Rights Zakharov v. Russia of 4 December 2015;











Amendment 6


Proposal for a regulation


Recital 7 a (new)








Text proposed by the Commission




Amendment





 










(7a)






Regulation (EU) 2016/679 of the European Parliament and of the Council

 (1a)

(General Data Protection Regulation) obliges data protection controllers and processors to implement technical measures to ensure a level of security appropriate to the risk of processing, including by the encryption of personal data. Since that Regulation stipulates that it applies to the processing of personal data regardless of whether the processing takes place within the Union or not, there is a strong incentive for the Union to remove cryptography items from the control list in order to facilitate the implementation of the General Data Protection Regulation, and increase the competitiveness of European businesses in this context. In addition, the current level of control on encryption runs counter to the fact that encryption is a key means to ensure that citizens, businesses and governments can protect their data against criminals and other malicious actors; to secure access to services that are crucial for the functioning of the Digital Single Market; and to enable secure communications, which are necessary to protect the right to privacy, the right to data protection and the freedom of expression, in particular of human rights defenders.











Amendment 7


Proposal for a regulation


Recital 9








Text proposed by the Commission




Amendment











(9)


The scope of ‘catch-all controls’, that apply to non-listed 
dual use
 items in specific circumstances, should be clarified and harmonised
, and should address the risk of terrorism and human rights violations
. Appropriate exchange of information and consultations on ‘catch all controls’ should ensure the effective and consistent application of controls throughout the Union. 
Targeted catch-all controls should also apply, under certain conditions, to the export of cyber-surveillance technology.














(9)


The scope of ‘catch-all controls’, that apply to non-listed 
cyber-surveillance
 items in specific circumstances, should be clarified and harmonised. Appropriate exchange of information and consultations on ‘catch all controls’ should ensure the effective and consistent application of controls throughout the Union. 
Exchange of information should include support for the development of a public platform and the gathering of information from the private sector, public institutions and civil society organisations.











Amendment 8


Proposal for a regulation


Recital 10








Text proposed by the Commission




Amendment











(10)


The definition of broker should be revised to avoid the circumvention of controls on the provision of brokering services by persons falling within the jurisdiction of the Union. Controls on the provision of brokering services should be harmonised to ensure their effective and consistent application throughout the Union and should also apply in order to prevent 
acts of terrorism and
 human rights violations.












(10)


The definition of broker should be revised to avoid the circumvention of controls on the provision of brokering services by persons falling within the jurisdiction of the Union. Controls on the provision of brokering services should be harmonised to ensure their effective and consistent application throughout the Union and should also apply in order to prevent human rights violations.









Amendment 9


Proposal for a regulation


Recital 11








Text proposed by the Commission




Amendment











(11)


With the entry into force of the Lisbon Treaty, it has been clarified that the supply of technical assistance services involving a cross-border movement falls under Union competence. It is therefore appropriate to clarify the controls applicable to technical assistance services, and to introduce a definition of those services. For reasons of effectiveness and consistency, controls 
on
 the supply of technical assistance services should be harmonised and apply also in order to prevent 
acts of terrorism and
 human rights violations.












(11)


With the entry into force of the Lisbon Treaty, it has been clarified that the supply of technical assistance services involving a cross-border movement falls under Union competence. It is therefore appropriate to clarify the controls applicable to technical assistance services, and to introduce a definition of those services. For reasons of effectiveness and consistency, controls 
prior to
 the supply of technical assistance services should be harmonised and apply also in order to prevent human rights violations.









Amendment 10


Proposal for a regulation


Recital 12








Text proposed by the Commission




Amendment











(12)


Regulation (EC) No 428/2009 provides for a possibility for Member States’ authorities to prohibit on a case-by-case basis the transit of non-Union dual-use items, where they have reasonable grounds for suspecting from intelligence or other sources that the items are or may be intended in their entirety or in part for proliferation of weapons of mass destruction or of their means of delivery. For reasons of effectiveness and consistency, transit controls should be harmonised and apply also in order to prevent 
acts of terrorism and
 human rights violations.












(12)


Regulation (EC) No 428/2009 provides for a possibility for Member States’ authorities to prohibit on a case-by-case basis the transit of non-Union dual-use items, where they have reasonable grounds for suspecting from intelligence or other sources that the items are or may be intended in their entirety or in part for proliferation of weapons of mass destruction or of their means of delivery. For reasons of effectiveness and consistency, transit controls should be harmonised and apply also in order to prevent human rights violations.









Amendment 11


Proposal for a regulation


Recital 13 a (new)








Text proposed by the Commission




Amendment





 










(13a)






Although the responsibility for deciding on individual, global and national export authorisations lies with the national authorities, an effective EU export control regime implies that economic operators, who intend to export items covered by this Regulation, exercise due diligence as set out, inter alia, in the OECD Guidelines for Multinational Enterprises, the OECD Due Diligence Guidance for Responsible Business Conduct, and the UN Guiding Principles for Business and Human Rights.











Amendment 12


Proposal for a regulation


Recital 14








Text proposed by the Commission




Amendment











(14)


A standard requirement for compliance in the form of ‘internal compliance programmes’ should be introduced in order to contribute to the level-playing field between exporters and to enhance the effective application of controls. For reasons of proportionality, this requirement should apply to specific control modalities in the form of global authorisations and certain general export authorisations.












(14)


A standard requirement
, definition and description
 for compliance in the form of ‘internal compliance programmes
’ as well as a possibility of being certified in order to obtain incentives in the authorisation process from the national competent authorities
 should be introduced in order to contribute to the level-playing field between exporters and to enhance the effective application of controls. For reasons of proportionality, this requirement should apply to specific control modalities in the form of global authorisations and certain general export authorisations.









Amendment 13


Proposal for a regulation


Recital 15








Text proposed by the Commission




Amendment











(15)


Additional Union general export authorisations should be introduced in order to reduce administrative burden on companies and authorities while ensuring an appropriate level of control of the relevant items to the relevant destinations. A global authorisation for large projects should also be introduced to adapt licensing conditions to the peculiar needs of industry.












(15)


Additional Union general export authorisations should be introduced in order to reduce administrative burden on companies
, in particular SMEs,
 and authorities while ensuring an appropriate level of control of the relevant items to the relevant destinations. A global authorisation for large projects should also be introduced to adapt licensing conditions to the peculiar needs of industry.









Amendment 14


Proposal for a regulation


Recital 16 a (new)








Text proposed by the Commission




Amendment





 










(16a)






Considering the rapid advance of technological developments, it is appropriate that the Union introduces controls on certain types of cyber-surveillance technologies on the basis of a unilateral list, in Section B of Annex I. Given the importance of the multilateral export control system, Section B of Annex I should be limited in scope only to cyber-surveillance technologies and not contain any duplications with Section A of Annex I.











Amendment 15


Proposal for a regulation


Recital 17








Text proposed by the Commission




Amendment











(17)


Decisions to update the common list of dual-use items subject to export controls in Section A of Annex I should be in conformity with the obligations and commitments that Member States and the Union have accepted as members of the relevant international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties. Decisions to update the common list of 
dual-use
 items subject to export controls in Section B of Annex I, 
such as cyber-surveillance technology,
 should be made in consideration of the risks that the export of such items may pose as regards 
the commission of serious
 violations of human rights or international humanitarian law or the essential security interests of the Union and its Member States. Decisions to update the common list of dual-use items subject to export controls in Section B of Annex IV should be made in consideration of the public policy and public security interests of the Member States under Article 36 of the Treaty on the Functioning of the European Union. Decisions to update the common lists of items and destinations set out in Sections A to J of Annex II should be made in consideration of the assessment criteria set out in this Regulation.












(17)


Decisions to update the common list of dual-use items subject to export controls in Section A of Annex I should be in conformity with the obligations and commitments that Member States and the Union have accepted as members of the relevant international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties. Decisions to update the common list of 
cyber-surveillance
 items subject to export controls in Section B of Annex I, should be made in consideration of the risks that the export of such items may pose as regards 
their use for
 violations of 
international
 human rights 
law
 or international humanitarian law 
in countries where such violations, especially regarding the freedom of expression, the freedom of assembly and the right to privacy, have been established
, or the essential security interests of the Union and its Member States. Decisions to update the common list of dual-use items subject to export controls in Section B of Annex IV should be made in consideration of the public policy and public security interests of the Member States under Article 36 of the Treaty on the Functioning of the European Union. Decisions to update the common lists of items and destinations set out in Sections A to J of Annex II should be made in consideration of the assessment criteria set out in this Regulation. 
Decisions to delete entire subcategories on cryptography and encryption, such as in Category 5 of Section A of Annex I or as in Section I of Annex II should be made in consideration of the Recommendation of 27 March 1997 of the OECD Council concerning Guidelines for Cryptography Policy.











Amendment 16


Proposal for a regulation


Recital 18








Text proposed by the Commission




Amendment











(18)


In order to allow for a swift Union response to changing circumstances as regards the assessment of the sensitivity of exports under Union General Export Authorisations as well as technological and commercial developments, 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 
Section
 A of Annex I, Annex II and Section B of Annex IV to this Regulation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making 
of 13 April 2016
. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council should receive all documents at the same time as Member States' experts, and their experts systematically should have access to meetings of Commission expert groups dealing with the preparation of delegated acts.












(18)


In order to allow for a swift Union response to changing circumstances as regards the assessment of the sensitivity of exports under Union General Export Authorisations as well as technological and commercial developments, 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 
Sections
 A 
and B
 of Annex I, Annex II and Section B of Annex IV to this Regulation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement 
of 13 April 2016
 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council should receive all documents at the same time as Member States' experts, and their experts systematically should have access to meetings of Commission expert groups dealing with the preparation of delegated









Amendment 17


Proposal for a regulation


Recital 19 a (new)








Text proposed by the Commission




Amendment





 










(19a)






The risk of cyber theft and re-exportation to third countries, as referred to in Council Common Position 2008/944/CFSP, calls for the need to strengthen the provisions on dual-use items.











Amendment 18


Proposal for a regulation


Recital 21








Text proposed by the Commission




Amendment











(21)


Pursuant to and within the limits of Article 36 of the Treaty on the Functioning of the European Union and pending a greater degree of harmonisation, Member States retain the right to carry out controls on transfers of certain dual-use items within the Union in order to safeguard public policy or public security. For reasons of proportionality, controls on the transfer of dual-use items within the Union should be revised in order to minimise the burden for companies and authorities. Moreover, the list of items subject to intra-Union transfer controls in Section B of Annex IV should be periodically reviewed in light of technological and commercial developments and as regards the assessment of the sensitivity of transfers.












(21)


Pursuant to and within the limits of Article 36 of the Treaty on the Functioning of the European Union and pending a greater degree of harmonisation, Member States retain the right to carry out controls on transfers of certain dual-use items within the Union in order to safeguard public policy or public security. For reasons of proportionality, controls on the transfer of dual-use items within the Union should be revised in order to minimise the burden for companies
, in particular SMEs,
 and authorities. Moreover, the list of items subject to intra-Union transfer controls in Section B of Annex IV should be periodically reviewed in light of technological and commercial developments and as regards the assessment of the sensitivity of transfers.









Amendment 19


Proposal for a regulation


Recital 22 a (new)








Text proposed by the Commission




Amendment





 










(22a)






Given the importance of accountability and public scrutiny of export control activities, Member States should make all relevant licensing data publicly available.











Amendment 20


Proposal for a regulation


Recital 25








Text proposed by the Commission




Amendment











(25)


Outreach to the private sector and transparency are essential elements for an effective export control regime. It is therefore appropriate to provide for the continued development of 
guidance
 to support the application of this Regulation and for the publication of an annual report on the implementation of controls, in line with current practice.












(25)


Outreach to the private sector
, in particular to SMEs,
 and transparency are essential elements for an effective export control regime. It is therefore appropriate to provide for the continued development of 
guidelines
 to support the application of this Regulation and for the publication of an annual report on the implementation of controls, in line with current practice. 
Given the importance of guidelines for the interpretation of some elements of this Regulation, those guidelines should be publicly available when this Regulation enters into force.











Amendment 21


Proposal for a regulation


Recital 25 a (new)








Text proposed by the Commission




Amendment





 










(25a)






It should be ensured that the definitions set out in this Regulation are in accordance with the definitions in the Union Customs Code.











Amendment 22


Proposal for a regulation


Recital 27








Text proposed by the Commission




Amendment











(27)


Each Member State should determine effective, proportionate and dissuasive penalties applicable in the event of breach of the provisions of this Regulation. It is also appropriate to introduce provisions to tackle specifically instances of illicit trafficking of dual-use items in order to support effective enforcement of controls.












(27)


Each Member State should determine effective, proportionate and dissuasive penalties applicable in the event of breach of the provisions of this Regulation. 
The creation of a level playing field for Union exporters should be enhanced. Therefore, penalties for infringements of this Regulation should be similar in nature and effect in all Member States.
 It is also appropriate to introduce provisions to tackle specifically instances of illicit trafficking of dual-use items in order to support effective enforcement of controls.









Amendment 23


Proposal for a regulation


Recital 29








Text proposed by the Commission




Amendment











(29)


Export controls have an impact on international security and trade with third countries and it is therefore appropriate to develop dialogue and cooperation with third countries in order to support a global level-playing field and enhance international security.












(29)


Export controls have an impact on international security and trade with third countries and it is therefore appropriate to develop dialogue and cooperation with third countries in order to support a global level-playing field
, promote upward convergence
 and enhance international security. 
To promote those goals, the Council, the Commission and Member States should, in close cooperation with the EEAS, pro-actively engage in the relevant international fora, including the Wassenaar Arrangement in order to establish the list of cyber-surveillance items set out in Section B of Annex I as an international standard. In addition, assistance to third countries with regard to the development of a dual-use items export control regime and appropriate administrative capacities should be strengthened and expanded, in particular with regard to customs.











Amendment 24


Proposal for a regulation


Recital 31








Text proposed by the Commission




Amendment











(31)


This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, 
notably the freedom to conduct business,














(31)


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









Amendment 25


Proposal for a regulation


Article 2 — paragraph 1 — point 1 — point a








Text proposed by the Commission




Amendment











(a)


items which can be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery, including 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;












(a)




traditional dual-use items meaning
 items
, including software and hardware,
 which can be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery, including 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;









Amendment 26


Proposal for a regulation


Article 2 — paragraph 1 — point 1 — point b








Text proposed by the Commission




Amendment











(b)


cyber-surveillance technology which can be used for the commission of serious violations of human rights or international humanitarian law, or can pose a threat to international security or the essential security 
interests
 of the Union and its 
Member States
.












(b)


cyber-surveillance 
items including hardware, software and
 technology
, which are specially designed to enable the covert intrusion into information and telecommunication systems and/or the monitoring, exfiltrating, collecting and analysing of data and/or incapacitating or damaging the targeted system without the specific, informed and unambiguous authorisation of the owner of the data, and which can be used in connection with the violation of human rights, including the right to privacy, the right to free speech and the freedom of assembly and association, or
 which can be used for the commission of serious violations of human rights 
law
 or international humanitarian law, or can pose a threat to international security or the essential security of the Union and its 
Members. Network and ICT security research for the purpose of authorised testing or the protection of information security systems shall be excluded
.









Amendment 27


Proposal for a regulation


Article 2 — paragraph 1 — point 5 a (new)








Text proposed by the Commission




Amendment





 





5a.
   
‘end-user’ shall mean any natural or legal person or entity that is the final recipient of a dual use item.








Amendment 28


Proposal for a regulation


Article 2 — paragraph 1 — point 13








Text proposed by the Commission




Amendment











13.


‘large project authorisation’ shall mean a global export authorisation granted to one specific exporter, in respect of a type or category of dual-use item which may be valid for exports to one or more specified end users in one or more specified third countries for 
the duration of
 a specified project 
the realisation of which exceeds one year
;












13.


‘large project authorisation’ shall mean a global export authorisation granted to one specific exporter, in respect of a type or category of dual-use item which may be valid for exports to one or more specified end users in one or more specified third countries for a specified project
. It shall be valid for between one and four years, except in duly justified cases based on the duration of the project, and may be renewed by the competent authority
;









Amendment 29


Proposal for a regulation


Article 2 — paragraph 1 — point 22








Text proposed by the Commission




Amendment











22.


‘internal compliance programme’ shall mean effective, appropriate and proportionate means and procedures, including the development, implementation, and adherence to standardised operational compliance policies, procedures, standards of conduct, and safeguards, developed by exporters to ensure compliance with the provisions and with the terms and conditions of authorisations set out in this Regulation;












22.


‘internal compliance programme’
(ICP)
 shall mean effective, appropriate and proportionate means and procedures 
(risk based approach)
, including the development, implementation, and adherence to standardised operational compliance policies, procedures, standards of conduct, and safeguards, developed by exporters to ensure compliance with the provisions and with the terms and conditions of authorisations set out in this Regulation; 
the exporter shall have the possibility, on a voluntary basis, to have its ICP certified free of charge by the competent authorities on the basis of a reference ICP established by the Commission, in order to obtain incentives in the authorisation process from the national competent authorities;











Amendment 30


Proposal for a regulation


Article 2 — paragraph 1 — point 23








Text proposed by the Commission




Amendment













23.





‘terrorist act’ shall mean a terrorist act within the meaning of Article 1(3) of Common Position 2001/931/CFSP.









deleted







Amendment 31


Proposal for a regulation


Article 2 — paragraph 1 — point 23 a (new)








Text proposed by the Commission




Amendment





 










23a.





‘due diligence’ shall mean the process through which enterprises can identify, prevent, mitigate and account for how they address their actual and potential adverse impacts as an integral part of business decision-making and risk management systems;










Amendment 32


Proposal for a regulation


Article 4 — paragraph 1 — point d








Text proposed by the Commission




Amendment











(d)


for use by persons 
complicit
 in 
or responsible for directing or committing serious
 violations of human rights or international humanitarian law in 
situations of armed conflict or internal repression in the country of final destination, as
 identified by 
relevant public international institutions, or European
 or national competent authorities, and 
where
 there is 
evidence of the use of
 this or similar items for directing or implementing such 
serious
 violations by the proposed end-user;












(d)




with regard to cyber-surveillance items,
 for use by 
natural or legal
 persons in 
connection with
 violations of 
international
 human rights 
law
 or international humanitarian law in 
countries where serious violations of human rights have been
 identified by 
the competent bodies of the UN, the Council of Europe, the Union
, or national competent authorities, and there is 
reason to suspect that
 this or similar items 
may be used
 for 
the purpose of
 directing or implementing such violations by the proposed end-user;









Amendment 33


Proposal for a regulation


Article 4 — paragraph 1 — point e








Text proposed by the Commission




Amendment













(e)






for use in connection with acts of terrorism.










deleted







Amendment 34


Proposal for a regulation


Article 4 — paragraph 2








Text proposed by the Commission




Amendment






2.   If an exporter
, under his obligation to exercise
 due diligence, 
is aware
 that dual-use items which he proposes to export, 
not listed in Annex
 I, 
are
 intended, in their entirety or in part, for any of the uses referred to in paragraph 1, he must notify the competent authority, which will decide whether or not it is expedient to make the export concerned subject to authorisation.




2.   If an exporter, 
becomes aware while exercising
 due diligence that dual-use items 
not listed in Annex I
 which he 
or she
 proposes to export, 
may be
 intended, in their entirety or in part, for any of the uses referred to in paragraph 1, he 
or she
 must notify the competent authority 
of the Member State in which he or she is established or resident in
, which will decide whether or not it is expedient to make the export concerned subject to authorisation.






Amendment 35


Proposal for a regulation


Article 4 — paragraph 3








Text proposed by the Commission




Amendment






3.   Authorisations for the export of non-listed items shall be granted for specific items and end-users. The authorisations shall be granted by the competent authority of the Member State where the exporter is resident or established or, in case when the exporter is a person resident or established outside the Union, by the competent authority of the Member State where the items are located. The authorisations shall be valid throughout the Union. The authorisations shall be valid for 
one year
, and may be renewed by the competent authority.




3.   Authorisations for the export of non-listed items shall be granted for specific items and end-users. The authorisations shall be granted by the competent authority of the Member State where the exporter is resident or established or, in case when the exporter is a person resident or established outside the Union, by the competent authority of the Member State where the items are located. The authorisations shall be valid throughout the Union. The authorisations shall be valid for 
two years
, and may be renewed by the competent authority.






Amendment 36


Proposal for a regulation


Article 4 — paragraph 4 — subparagraph 2








Text proposed by the Commission




Amendment





If no objections are received, the Member States consulted shall be considered to have no objection and shall impose authorisations requirements for all ‘essentially similar transactions’. They shall inform their customs administration and other relevant national authorities about the authorisations requirements .


If no objections are received, the Member States consulted shall be considered to have no objection and shall impose authorisations requirements for all ‘essentially similar transactions
’ meaning an item with essentially identical parameters or technical characteristics to the same end user or consignee
. They shall inform their customs administration and other relevant national authorities about the authorisations requirements. 
The Commission shall publish in the Official Journal of the European Union a short description of the case, the reasoning of the decision and indicate, if applicable, the new authorisation requirement in a new Section E of Annex II.







Amendment 37


Proposal for a regulation


Article 4 — paragraph 4 — subparagraph 3








Text proposed by the Commission




Amendment





If objections are received from 
any consulted
 Member 
State
, the requirement for authorisation shall be revoked unless the Member State which imposes the authorisation requirement considers that an export might prejudice its essential security interests. In that case, that Member State may decide to maintain the authorisation requirement. This should be notified to the Commission and the other Member States without delay.


If objections are received from 
at least four
 Member 
States representing at least 35 % of the population of the Union
, the requirement for authorisation shall be revoked unless the Member State which imposes the authorisation requirement considers that an export might prejudice its essential security interests 
or its human rights obligations.
 In that case, that Member State may decide to maintain the authorisation requirement. This should be notified to the Commission and the other Member States without delay.





Amendment 38


Proposal for a regulation


Article 4 — paragraph 4 — subparagraph 4








Text proposed by the Commission




Amendment





The Commission and the Member States 
will
 maintain an updated register of authorisation requirements in place.


The Commission and the Member States 
shall
 maintain an updated register of authorisation requirements in place. 
The data available in that register shall be included in the report to the European Parliament, referred to in paragraph 2 of Article 24, and shall be accessible to the public.







Amendment 39


Proposal for a regulation


Article 5 — paragraph 2








Text proposed by the Commission




Amendment






2.   If a broker is aware that the dual-use items for which he proposes brokering services are intended, in their entirety or in part, for any of the uses referred to in Article 4(1), he must notify the competent authority which 
will decide whether or not it is expedient to
 make such brokering services subject to authorisation.




2.   If a broker is aware that the dual-use items for which he 
or she
 proposes brokering services are intended, in their entirety or in part, for any of the uses referred to in Article 4(1), he 
or she
 must notify the competent authority which 
shall
 make such brokering services subject to authorisation.






Amendment 40


Proposal for a regulation


Article 7 — paragraph 1








Text proposed by the Commission




Amendment






1.   An authorisation shall be required for the provision, directly or indirectly, of technical assistance related to dual-use items, or related to the provision, manufacture, maintenance and use of dual-use items, if the supplier of technical assistance has been informed by the competent authority that the items in question are or may be intended, in their entirety or in part, for any of the uses referred to in 
Article 4
.




1.   An authorisation shall be required for the provision, directly or indirectly, of technical assistance related to dual-use items, or related to the provision, manufacture, maintenance and use of dual-use items, if the supplier of technical assistance has been informed by the competent authority that the items in question are or may be intended, in their entirety or in part, for any of the uses referred to in 
paragraph 1 of Article 4
.






Amendment 41


Proposal for a regulation


Article 7 — paragraph 2








Text proposed by the Commission




Amendment





If a supplier of technical assistance is aware that the dual-use items for which he proposes to supply technical assistance are intended, in their entirety or in part, for any of the uses referred to in Article 4, he must notify the competent authority which 
will decide whether or not it is expedient to
 make such technical assistance subject to authorisation.


If a supplier of technical assistance is aware that the dual-use items for which he 
or she
 proposes to supply technical assistance are intended, in their entirety or in part, for any of the uses referred to in 
paragraph 1 of
 Article 4, he 
or she
 must notify the competent authority which 
shall
 make such technical assistance subject to authorisation.





Amendment 42


Proposal for a regulation


Article 8 — paragraph 1








Text proposed by the Commission




Amendment






1.   A Member State may prohibit or impose an authorisation requirement on the export of dual-use items not listed in Annex I for reasons of public security 
or
 for human rights considerations.




1.   A Member State may prohibit or impose an authorisation requirement on the export of dual-use items not listed in Annex I for reasons of public security, for human rights considerations 
or for the prevention of acts of terrorism
.






Amendment 43


Proposal for a regulation


Article 9 — paragraph 7








Text proposed by the Commission




Amendment






7.   The relevant commercial documents relating to intra-Union transfers of dual-use items listed in Annex I shall indicate clearly that those items are subject to controls if exported from the Union. Relevant commercial documents include, in particular, any sales contract, order confirmation, invoice or dispatch note.




7.   The relevant commercial documents relating to 
exports to third countries and
 intra-Union transfers of dual-use items listed in Annex I shall indicate clearly that those items are subject to controls if exported from the Union. Relevant commercial documents include, in particular, any sales contract, order confirmation, invoice or dispatch note.






Amendment 44


Proposal for a regulation


Article 10 — paragraph 3








Text proposed by the Commission




Amendment






3.   Individual export authorisations and global export authorisations shall be valid for 
one year
, and may be renewed by the competent authority. Global export authorisations for large projects shall be valid for 
a
 duration 
to be determined by the
 competent 
authority
.




3.   Individual export authorisations and global export authorisations shall be valid for 
two years
, and may be renewed by the competent authority. Global export authorisations for large projects shall be valid for 
no longer than four years, except in duly justified circumstances based on the
 duration 
of the project. This does not prevent
 competent 
authorities from annulling, suspending, modifying or revoking individual or global export authorisations at any time.








Amendment 45


Proposal for a regulation


Article 10 — paragraph 4 — subparagraph 1








Text proposed by the Commission




Amendment





Exporters shall supply the competent authority with all relevant information required for their applications for individual and global export authorisation so as to provide complete information in particular on the end user, the country of destination and the end use of the item exported.


Exporters shall supply the competent authority with all relevant information required for their applications for individual and global export authorisation so as to provide complete information in particular on the end user, the country of destination and the end use of the item exported. 
When dealing with governmental end-users, the information supplied shall specify which department, agency, unit or sub-unit will be the final end-user of the item exported.







Amendment 46


Proposal for a regulation


Article 10 — paragraph 4 — subparagraph 2








Text proposed by the Commission




Amendment





Authorisations 
may
 be subject
, if appropriate,
 to an end-use statement.




All
 authorisations 
for cyber-surveillance items, as well as individual export authorisations for items for which there exists a high risk of diversion or re-exportation under undesirable conditions, shall be subject to an end-use statement. Authorisations for other items shall
 be subject to an end-use statement 
if appropriate.







Amendment 47


Proposal for a regulation


Article 10 — paragraph 4 — subparagraph 3 — introductory part








Text proposed by the Commission




Amendment





Global export authorisations shall be subject to the implementation, by the exporter, of an effective internal compliance programme. The exporter shall also report to the competent authority, at least once a year, on the use of this authorisation; the report shall include at least the following information:


Global export authorisations shall be subject to the implementation, by the exporter, of an effective internal compliance programme. 
The exporter shall have the possibility, on a voluntary basis, to have its ICP certified free of charge by the competent authorities on the basis of a reference ICP established by the Commission, in order to obtain incentives in the authorisation process from the national competent authorities
. The exporter shall also report to the competent authority, at least once a year, 
or on request of the competent authority,
 on the use of this authorisation; the report shall include at least the following information:





Amendment 48


Proposal for a regulation


Article 10 — paragraph 4 — subparagraph 3 — point d








Text proposed by the Commission




Amendment











(d)




where known,
 the end-use and end-user of the dual-use items.












(d)


the end-use and end-user of the dual-use items.









Amendment 49


Proposal for a regulation


Article 10 — paragraph 4 — subparagraph 3 — point d a (new)








Text proposed by the Commission




Amendment





 










(da)






the name and address of the end-user, where known;











Amendment 50


Proposal for a regulation


Article 10 — paragraph 4 — subparagraph 3 — point d b (new)








Text proposed by the Commission




Amendment





 










(db)






the date on which the export took place.











Amendment 51


Proposal for a regulation


Article 10 — paragraph 5








Text proposed by the Commission




Amendment






5.   The competent authorities of the Member States shall process requests for individual or global authorisations within 
a period of time to be determined by national law or practice. The competent authorities shall provide to the Commission all information on the average times for processing applications for authorisations relevant for the preparation of the annual report referred to in Article 24(2).






5.   The competent authorities of the Member States shall process requests for individual or global authorisations within 
30 days of the valid submission of the application. If the competent authority, for duly justified reasons, requires more time to process the application, it shall inform the applicant accordingly within 30 days. The competent authority shall, in any event, decide on applications for individual or global export authorisations, at the latest, within 60 days of valid submission of the application.








Amendment 52


Proposal for a regulation


Article 11 — paragraph 1 — subparagraph 2








Text proposed by the Commission




Amendment





Where the broker or the supplier of technical assistance is not resident or established on the territory of the Union, authorisations for brokering services and technical assistance under this Regulation shall be granted
, alternatively,
 by the competent authority of the Member State 
where the parent company of the broker or supplier of technical assistance is established, or
 from where the brokering services or technical assistance will be supplied.


Where the broker or the supplier of technical assistance is not resident or established on the territory of the Union, authorisations for brokering services and technical assistance under this Regulation shall be granted by the competent authority of the Member State from where the brokering services or technical assistance will be supplied. 
This includes brokering services and the supply of technical assistance by subsidiaries or joint ventures established in third countries but owned or controlled by companies established on the territory of the Union.







Amendment 53


Proposal for a regulation


Article 14 — paragraph 1 — introductory part








Text proposed by the Commission




Amendment






1.   In deciding whether or not to grant an individual or global export authorisation or to grant an authorisation for brokering services or technical assistance under this Regulation, or to prohibit a transit, the competent authorities of the Member States shall take into account 
the following criteria
:




1.   In deciding whether or not to grant an individual or global export authorisation or to grant an authorisation for brokering services or technical assistance under this Regulation, or to prohibit a transit, the competent authorities of the Member States shall take into account 
all relevant considerations including
:






Amendment 54


Proposal for a regulation


Article 14 — paragraph 1 — point a








Text proposed by the Commission




Amendment











(a)


Union and Member States’ international obligations and commitments, in particular the obligations and commitments they have each accepted as members of the relevant international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties 
and their obligations under sanctions imposed by 2 a decision or a common position adopted by the Council or by a decision of the OSCE or by a binding resolution of the Security Council of the United Nations;














(a)


Union and Member States’ international obligations and commitments, in particular the obligations and commitments they have each accepted as members of the relevant international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties;









Amendment 55


Proposal for a regulation


Article 14 — paragraph 1 — point a a (new)








Text proposed by the Commission




Amendment





 










(aa)






their obligations under sanctions imposed by a decision or a common position adopted by the Council or by a decision of the OSCE or by a binding resolution of the Security Council of the United Nations;











Amendment 56


Proposal for a regulation


Article 14 — paragraph 1 — point b a (new)








Text proposed by the Commission




Amendment





 










(ba)






the occurrence of violations of human rights law, fundamental freedoms and international humanitarian law in the country of final destination as has been established by the competent bodies of the UN, the Council of Europe or the Union;











Amendment 57


Proposal for a regulation


Article 14 — paragraph 1 — point c








Text proposed by the Commission




Amendment











(c)


the internal situation in the country of final destination — competent authorities 
will
 not authorise exports that would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination;












(c)


the internal situation in the country of final destination — competent authorities 
shall
 not authorise exports that would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination;









Amendment 58


Proposal for a regulation


Article 14 — paragraph 1 — point d a (new)








Text proposed by the Commission




Amendment





 










(da)






the behaviour of the country of destination with regard to the international community, as regards in particular its attitude to terrorism, the nature of its alliances and respect for international law;











Amendment 59


Proposal for a regulation


Article 14 — paragraph 1 — point d b (new)








Text proposed by the Commission




Amendment





 










(db)






compatibility of the exports of the items with regard to the technical and economic capacity of the recipient country;











Amendment 60


Proposal for a regulation


Article 14 — paragraph 1 — point f








Text proposed by the Commission




Amendment











(f)


considerations about intended end use and the risk of diversion, including existence of a risk that the dual-use items will be diverted or re-exported under undesirable conditions.












(f)


considerations about intended end use and the risk of diversion, including existence of a risk that the dual-use
, and in particular, cyber-surveillance
 items will be diverted or re-exported under undesirable conditions
, or be diverted to unintended military end-use or to terrorism
.









Amendment 61


Proposal for a regulation


Article 14 — paragraph 1 a (new)








Text proposed by the Commission




Amendment





 





1a.
   
With regard to individual or global export authorisations or authorisations for brokering services or technical assistance for cyber-surveillance items, the competent authorities of the Member States shall in particular consider the risk of violation of the right to privacy, the right to data protection, freedom of speech and freedom of assembly and association, as well as risks relating to the rule of law, the legal framework for use of the items to be exported and the potential security risks for the Union and the Member States.







 




Where the competent authorities of a Member State come to the conclusion that the existence of such risks is likely to lead to serious violations of human rights, Member States shall not grant export authorisations or shall annul, suspend, modify or revoke existing authorisations.







Amendment 62


Proposal for a regulation


Article 14 — paragraph 2








Text proposed by the Commission




Amendment






2.   The Commission and the Council shall make available 
guidance and/or recommendations
 to ensure common risk assessments by the competent authorities of the Member States for the implementation of those criteria.




2.   The Commission and the Council shall make available 
guidelines, upon entry into force of this Regulation,
 to ensure common risk assessments by the competent authorities of the Member States for the implementation of those criteria 
and with a view to provide uniform criteria for licensing decisions. The Commission shall prepare guidelines in the form of a handbook detailing the steps to be followed by Member State competent licensing authorities and exporters exercising due diligence with practical recommendations on the implementation and compliance with the controls pursuant to point d of the first paragraph of Article 4 and the criteria listed in the first paragraph of Article 14, including examples of best practices. That handbook shall be developed in close cooperation with the EEAS and the Dual Use Coordination Group and shall involve external expertise from academics, exporters, brokers and civil society organizations, in accordance with procedures set out in paragraph 3 of Article 21 and shall be updated as is deemed necessary and appropriate.







 




The Commission shall establish a capacity-building programme by developing common training programmes for officials from licensing and customs enforcement authorities.







Amendment 63


Proposal for a regulation


Article 16 — paragraph 2 — point b








Text proposed by the Commission




Amendment











(b)


The list of 
dual-use
 items set out in Section B of Annex I 
may
 be amended if this is necessary due to risks that the export of such items may pose as regards the commission of serious violations of human rights or international humanitarian law or the essential security interests of the Union and its Member States.












(b)


The list of 
cyber-surveillance
 items set out in Section B of Annex I 
shall
 be amended if this is necessary due to risks that the export of such items may pose as regards the commission of serious violations of human rights or international humanitarian law or the essential security interests of the Union and its Member States 
or if controls for a significant amount of unlisted items have been triggered pursuant to point d of the first paragraph of Article 4 of this Regulation. Amendments may also concern decisions to delist products already listed.



Where imperative grounds of urgency require a removal or addition of specific items in Section B of Annex I, the procedure provided for in Article 17 shall apply to delegated acts adopted pursuant to this point.










Amendment 64


Proposal for a regulation


Article 16 — paragraph 2 — point b a (new)








Text proposed by the Commission




Amendment





 










(ba)






The Commission may remove items from the list, in particular if, as the result of the fast-changing technological environment, those items have become lower tier or mass market products, which are easily available or technically easily modifiable.











Amendment 65


Proposal for a regulation


Article 16 — paragraph 2 a (new)








Text proposed by the Commission




Amendment





 





2a.
   
Section B of Annex I shall be limited in scope to cyber-surveillance items and shall not contain items listed in Section A of Annex I;








Amendment 66


Proposal for a regulation


Article 18 — paragraph 5








Text proposed by the Commission




Amendment






5.   The Commission, in cooperation with the Member States, shall develop 
a guidance
 to support interagency cooperation between licensing and customs authorities.




5.   The Commission, in cooperation with the Member States, shall develop 
guidelines
 to support interagency cooperation between licensing and customs authorities.






Amendment 67


Proposal for a regulation


Article 20 — paragraph 2 — point a








Text proposed by the Commission




Amendment











(a)


information regarding the application of controls
, including licensing data (number, value and types of licences and related destinations, number of users of general and global authorisations, number of operators with ICPs, processing times, volume and value of trade subject to intra-EU transfers etc), and, where available, data on exports of dual-use items carried out in other Member States
;












(a)




all
 information regarding the application of controls;









Amendment 68


Proposal for a regulation


Article 20 — paragraph 2 — point b








Text proposed by the Commission




Amendment











(b)


information regarding the enforcement of controls, including details of exporters deprived of the right to use the national or Union general export authorisations, reports of violations, seizures and the application of other penalties;












(b)




all
 information regarding the enforcement of controls, including details of exporters deprived of the right to use the national or Union general export authorisations, 
any
 reports of violations, seizures and the application of other penalties;









Amendment 69


Proposal for a regulation


Article 20 — paragraph 2 — point c








Text proposed by the Commission




Amendment











(c)


data on sensitive end users, actors involved in suspicious procurement activities, and
, where available,
 routes taken.












(c)




all
 data on sensitive end users, actors involved in suspicious procurement activities, and routes taken.









Amendment 70


Proposal for a regulation


Article 21 — paragraph 2








Text proposed by the Commission




Amendment






2.   
The Chair of
 the Dual-Use Coordination Group shall, whenever it considers it to be necessary, consult exporters, brokers and other relevant stakeholders concerned by this Regulation.




2.   The Dual-Use Coordination Group shall, whenever it considers it to be necessary, consult exporters, brokers and other relevant stakeholders concerned by this Regulation.






Amendment 71


Proposal for a regulation


Article 21 — paragraph 3








Text proposed by the Commission




Amendment






3.   The Dual-Use Coordination Group shall, where appropriate, set up technical expert groups composed of experts from Member States to examine specific issues relating to the implementation of controls, including issues relating to the updating of the Union control lists in Annex I. Technical expert groups shall
, where appropriate,
 consult exporters, brokers and other relevant stakeholders concerned by this Regulation.




3.   The Dual-Use Coordination Group shall, where appropriate, set up technical expert groups composed of experts from Member States to examine specific issues relating to the implementation of controls, including issues relating to the updating of the Union control lists in 
Section B of
 Annex I. Technical expert groups shall consult exporters, brokers
, civil society organisations
 and other relevant stakeholders concerned by this Regulation. 
The Dual-Use Coordination Group shall in particular establish a technical working group on assessment criteria as referred in the point d of the first paragraph of Article 4 and point b of the first paragraph of Article 14 and on the elaboration of the guidelines for due diligence in consultation with an independent group of experts, academics and civil society organisations.








Amendment 72


Proposal for a regulation


Article 22 — paragraph 1








Text proposed by the Commission




Amendment






1.   Each Member State shall take appropriate measures to ensure proper enforcement of all the provisions of this Regulation. In particular, it shall lay down the penalties applicable to infringements of the provisions of this Regulation or of those adopted for its implementation. Those penalties must be effective, proportionate and dissuasive.




1.   Each Member State shall take appropriate measures to ensure proper enforcement of all the provisions of this Regulation. In particular, it shall lay down the penalties applicable to infringements
, the facilitation of infringements and circumvention
 of the provisions of this Regulation or of those adopted for its implementation. Those penalties must be effective, proportionate and dissuasive. 
The measures shall include regular risk-based audits of exporters.








Amendment 73


Proposal for a regulation


Article 22 — paragraph 2








Text proposed by the Commission




Amendment






2.   The Dual-Use Coordination Group shall set up an Enforcement Coordination Mechanism with a view to establish direct cooperation and exchange of information between competent authorities and enforcement agencies.




2.   The Dual-Use Coordination Group shall set up an Enforcement Coordination Mechanism with a view to establish direct cooperation and exchange of information between competent authorities and enforcement agencies 
and to provide for uniform criteria for licensing decisions
. 
Upon assessment by the Commission of the rules on penalties laid down by Member States, that mechanism shall provide for ways to make penalties for infringements of this Regulation similar in nature and effect.








Amendment 74


Proposal for a regulation


Article 24 — paragraph 1








Text proposed by the Commission




Amendment






1.   The Commission and the Council shall, where appropriate, make available 
guidance and/or recommendations
 for best practices for the subjects referred to in this Regulation to ensure the efficiency of the Union export control regime and the consistency of its implementation. The competent authorities of the Member States shall also, where appropriate, provide complementary guidance for exporters, brokers and transit operators resident or established in that Member State.




1.   The Commission and the Council shall, where appropriate, make available 
guidelines
 for best practices for the subjects referred to in this Regulation to ensure the efficiency of the Union export control regime and the consistency of its implementation. The competent authorities of the Member States shall also, where appropriate, provide complementary guidance for exporters, 
in particular SMEs,
 brokers and transit operators resident or established in that Member State.






Amendment 75


Proposal for a regulation


Article 24 — paragraph 2 — subparagraph 2








Text proposed by the Commission




Amendment





Member States shall provide to the Commission all appropriate information for the preparation of the report. This annual report shall be public.


Member States shall provide to the Commission all appropriate information for the preparation of the report. This annual report shall be public. 
Member States shall also disclose publicly, at least quarterly and in an easily accessible manner, meaningful information on each license with regard to the type of license, the value, the volume, nature of equipment, a description of the product, the end user and end use, the country of destination, as well as information regarding approval or denial of the license request. Commission and Member States shall take into account the legitimate interests of natural and legal persons concerned that their business secrets should not be divulged.







Amendment 76


Proposal for a regulation


Article 24 — paragraph 3 — subparagraph 1








Text proposed by the Commission




Amendment





Between five and seven years after the date of application of this Regulation, the Commission shall carry out an evaluation of this Regulation and report on the main findings to the European Parliament, the Council and the European Economic and Social Committee.


Between five and seven years after the date of application of this Regulation, the Commission shall carry out an evaluation of this Regulation and report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. 
This evaluation shall include a proposal on the deletion of Cryptography in Part 2 of Category 5 of Section A of Annex I.







Amendment 77


Proposal for a regulation


Article 25 — paragraph 1 — point d








Text proposed by the Commission




Amendment











(d)




where known,
 the end-use and end-user of the dual-use items.












(d)


the end-use and end-user of the dual-use items.









Amendment 78


Proposal for a regulation


Article 25 — paragraph 3








Text proposed by the Commission




Amendment






3.   The registers or records and the documents referred to in paragraphs 1 and 2 shall be kept for at least 
three
 years from the end of the calendar year in which the export took place or the brokering or technical assistance services were provided. They shall be produced, on request, to the competent authority.




3.   The registers or records and the documents referred to in paragraphs 1 and 2 shall be kept for at least 
five
 years from the end of the calendar year in which the export took place or the brokering or technical assistance services were provided. They shall be produced, on request, to the competent authority.






Amendment 79


Proposal for a regulation


Article 27 — paragraph 1








Text proposed by the Commission




Amendment






1.   The Commission and the competent authorities of the Member States shall, where appropriate, maintain regular and reciprocal exchange of information with third countries.




1.   The Commission and the competent authorities of the Member States shall 
engage, where appropriate, in relevant international organisations, such as the OECD and those multilateral export control regimes in which they participate to promote international adherence to the list of cyber-surveillance items subject to export controls in Section B of Annex I and
, where appropriate, maintain regular and reciprocal exchange of information with third countries
, including in the context of the dialogue on dual-use items provided for in the Union's partnership and cooperation agreements and strategic partnership agreements
, 
engage in capacity-building and in promoting upward convergence. The Commission shall report annually to the European Parliament on such outreach activities.








Amendment 80


Proposal for a regulation


Annex I — Section A — DEFINITIONS OF TERMS USED IN THIS ANNEX








Text proposed by the Commission




Amendment





‘Intrusion software’ (4) means ‘software’ specially designed or modified 
to avoid detection by ‘monitoring tools’, or to defeat ‘protective countermeasures’, of a computer or network-capable device
, and performing any of the following:


‘Intrusion software’ (4) means ‘software’ specially designed or modified 
to be run or installed without ‘authorisation’ from owners or ‘administrators’ of computers or network-capable devices
, and performing any of the following:










a.


The extraction of data or information, from a computer or network-capable device, or the modification of system or user data; or












a.


The 
unauthorised
 extraction of data or information, from a computer or network-capable device, or the modification of system or user data; or














b.


The modification of 
the standard execution path of a program or process in order to allow the execution of externally provided instructions
.












b.


The modification of 
system or user data to facilitate access to data stored on a computer or network-capable device by parties other than parties authorised by the owner of the computer or network-capable device
.








Notes:


Notes:










1.


‘Intrusion software’ does not include any of the following:












1.


‘Intrusion software’ does not include any of the following:














 








a.


Hypervisors, debuggers or Software Reverse Engineering (SRE) tools;
















 








a.


Hypervisors, debuggers or Software Reverse Engineering (SRE) tools;


















 








b.


Digital Rights Management (DRM) ‘software’; or
















 








b.


Digital Rights Management (DRM) ‘software’; or


















 








c.


‘Software’ designed to be installed by 
manufacturers
, administrators or users, for the purposes of asset tracking 
or
 recovery.
















 








c.


‘Software’ designed to be installed by administrators or users, for the purposes of asset tracking
, asset
 recovery 
or ‘ICT security testing’














 








 










ca.






‘Software’ that is distributed with the express purpose of helping detect, remove, or prevent its execution on computers or network-capable devices of unauthorised parties.




















2.


Network-capable devices include mobile devices and smart meters.












2.


Network-capable devices include mobile devices and smart meters.








Technical Notes:


Technical Notes:










1.

‘
Monitoring tools’: ‘software’ or hardware devices that monitor system behaviours or processes running on a device. This includes antivirus (AV) products, end point security products, Personal Security Products (PSP), Intrusion Detection Systems (IDS), Intrusion Prevention Systems (IPS) or firewalls.













1.



‘Authorisation’: the informed consent of the user (i.e. an affirmative indication of comprehension regarding the nature, implications, and future consequences of an action, and agreement to the execution of that action).

















2.





‘Protective countermeasures’: techniques designed to ensure the safe execution of code, such as Data Execution Prevention (DEP), Address Space Layout Randomisation (ASLR) or sandboxing.















2.





‘ICT security testing’: discovery and assessment of static or dynamic risk, vulnerability, error, or weakness affecting ‘software’, networks, computers, network-capable devices, and components or dependencies therefor, for the demonstrated purpose of mitigating factors detrimental to safe and secure operation, use or deployment.










Amendment 81


Proposal for a regulation


Annex I — Section B — title








Text proposed by the Commission




Amendment











B.


LIST OF 
OTHER DUAL-USE ITEMS














B.


LIST OF 
CYBER-SURVEILLANCE ITEMS











Amendment 82


Proposal for a regulation


Annex I — Section B — category 10 — point 10A001 — Technical note — point e a (new)








Text proposed by the Commission




Amendment





 










(ea)






network and security research for the purposes of authorised testing or the protection of information security systems.











Amendment 83


Proposal for a regulation


Annex II — Section A — part 3 — paragraph 3








Text proposed by the Commission




Amendment











3.




Any exporter intending to use this authorisation shall
 register prior to the first use of this authorisation 
with the competent authority of the Member State where he is resident or established
. Registration shall be automatic and acknowledged by the competent 
authority
 to the exporter within 
ten
 working days of receipt.












3.




A Member State may require exporters established in that Member State to
 register prior to the first use of this authorisation. Registration shall be automatic and acknowledged by the competent 
authorities
 to the exporter 
without delay and in any case
 within 
10
 working days of receipt.









Amendment 84


Proposal for a regulation


Annex II — Section A — part 3 — paragraph 4








Text proposed by the Commission




Amendment











4.


The registered exporter shall notify the first use of this authorisation to the competent authority of the Member State where he is resident or established, no later than 
10 days before
 the date 
of
 the first export.












4.


The registered exporter shall notify the first use of this authorisation to the competent authority of the Member State where he 
or she
 is resident or established no later than 
30 days after
 the date 
when
 the first export 
took place
.









Amendment 85


Proposal for a regulation


Annex II — Section A — part 3 — paragraph 5 — point 4








Text proposed by the Commission




Amendment











(4)




where known,
 the end-use and end-user of the dual-use items.












(4)


the end-use and end-user of the dual-use items.









Amendment 86


Proposal for a regulation


Annex II — Section B — part 3 — paragraph 3








Text proposed by the Commission




Amendment











3.




Any exporter intending to use this authorisation shall
 register prior to the first use of this authorisation 
with the competent authority of the Member State where he is resident or established
. Registration shall be automatic and acknowledged by the competent 
authority
 to the exporter within 10 working days of receipt.












3.




A Member State may require exporters established in that Member State to
 register prior to the first use of this authorisation. Registration shall be automatic and acknowledged by the competent 
authorities
 to the exporter 
without delay and in any case
 within 10 working days of receipt.









Amendment 87


Proposal for a regulation


Annex II — Section B — part 3 — paragraph 5 — point 4








Text proposed by the Commission




Amendment











(4)




where known,
 the end-use and end-user of the dual-use items.












(4)


the end-use and end-user of the dual-use items.









Amendment 88


Proposal for a regulation


Annex II — Section C — part 3 — paragraph 5








Text proposed by the Commission




Amendment











5.


The registered exporter shall notify the first use of this authorisation to the competent authority of the Member State where he is resident or established, no later than 
10 days before
 the date of the first export.












5.


The registered exporter shall notify the first use of this authorisation to the competent authority of the Member State where he 
or she
 is resident or established, no later than 
30 days after
 the date 
when
 the first export 
took place or, alternatively, and in accordance with a requirement by the competent authority of the Member State where the exporter is established, prior to the first use of that authorisation. Member States shall notify the Commission of the notification mechanism chosen for that authorisation. The Commission shall publish the information notified to it in the C series of the Official Journal of the European Union
.









Amendment 89


Proposal for a regulation


Annex II — Section C — part 3 — paragraph 6 — point 4








Text proposed by the Commission




Amendment











(4)




where known,
 the end-use and end-user of the dual-use items.












(4)


the end-use and end-user of the dual-use items.









Amendment 90


Proposal for a regulation


Annex II — Section D — part 3 — paragraph 6








Text proposed by the Commission




Amendment











6.


The registered exporter shall notify the first use of this authorisation to the competent authority of the Member State where he is resident or established, no later than 
10 days before
 the date 
of
 the first export.












6.


The registered exporter shall notify the first use of this authorisation to the competent authority of the Member State where he 
or she
 is resident or established no later than 
30 days after
 the date 
when
 the first export 
took place or, alternatively, and in accordance with a requirement by the competent authority of the Member State where the exporter is established, prior to the first use of this authorisation. Member States shall notify the Commission of the notification mechanism chosen for this authorisation. The Commission shall publish the information notified to it in the C series of the Official Journal of the European Union
.









Amendment 91


Proposal for a regulation


Annex II — Section D — part 3 — paragraph 7 — point 4








Text proposed by the Commission




Amendment











(4)




where known,
 the end-use and end-user of the dual-use items.












(4)


the end-use and end-user of the dual-use items.









Amendment 92


Proposal for a regulation


Annex II — Section F — part 3 — paragraph 5 — point 4








Text proposed by the Commission




Amendment











(4)




where known,
 the end-use and end-user of the dual-use items.












(4)


the end-use and end-user of the dual-use items.









Amendment 93


Proposal for a regulation


Annex II — Section G — part 3 — paragraph 8 — point 4








Text proposed by the Commission




Amendment











(4)




where known,
 the end-use and end-user of the dual-use items.












(4)


the end-use and end-user of the dual-use items.









Amendment 94


Proposal for a regulation


Annex II — Section H — part 3 — paragraph 1 — introductory part and point 1








Text proposed by the Commission




Amendment











1.




This
 authorisation authorises the transmission of the software and technology listed in Part 1 by any exporter resident or established in a Member State 
of the Union
 provided the item is 
only
 for use:












1.




That
 authorisation authorises the transmission of the software and technology listed in Part 1 by any 
company that is an
 exporter resident or established in a Member State 
to any sister company, subsidiary or parent company provided those entities are
 owned or controlled by the 
same parent company or are established in a Member State,
 provided the item 
in question
 is for use 
for company cooperation projects including commercial product development, research, servicing, production and usage and, in the case of employees and order processors, pursuant to the agreement establishing the employment relationship.
















 








(1)


by 
the exporter or by any entity
 owned or controlled by the 
exporter;












 





Amendment 95


Proposal for a regulation


Annex II — Section H — part 3 — paragraph 1 — point 2








Text proposed by the Commission




Amendment













(2)





by employees of the exporter or of any entity owned or controlled by the exporter









deleted







Amendment 96


Proposal for a regulation


Annex II — Section H — part 3 — paragraph 1 — subparagraph 2








Text proposed by the Commission




Amendment







in its or their own commercial product development activities and, in the case of employees, pursuant to the agreement establishing the employment relationship.






deleted







Amendment 97


Proposal for a regulation


Annex II — Section I — part 3 — paragraph 3 — subparagraph 1








Text proposed by the Commission




Amendment







Any exporter intending to use this authorisation shall
 register prior to the first use of this authorisation 
with the competent authority of the Member State where he is resident or established
. Registration shall be automatic and acknowledged by the competent 
authority
 to the exporter within 10 working days of receipt.




A Member State may require exporters established in that Member State to
 register prior to the first use of this authorisation. Registration shall be automatic and acknowledged by the competent 
authorities
 to the exporter 
without delay and in any case
 within 10 working days of receipt.





Amendment 98


Proposal for a regulation


Annex II — Section J — part 3 — paragraph 5 — point 4








Text proposed by the Commission




Amendment











(4)




where known,
 the end-use and end-user of the dual-use items.












(4)


the end-use and end-user of the dual-use items.










(1)  The matter was referred back for interinstitutional negotiations to the committee responsible, pursuant to Rule 59(4), fourth subparagraph (A8-0390/2017).

(1a)  
Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment (OJ L 335, 13.12.2008, p. 99).



(1a)  
Regulation (EU) 2016/679 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)