Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 428/2009 by granting a Union General Export Authorisation for the export of certain dual-use items from the Union to the United Kingdom of Great Britain and Northern Ireland
Date: 2018-12-19
Institutions: Directorate-General for Trade and Economic Security, European Commission
Subjects: United Kingdom, dual-use good, export (EU), export licence, export monitoring, intra-EU trade, trade restriction, transit, withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 19.12.2018  COM(2018) 891 final 2018/0435 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 428/2009 by granting a Union General Export Authorisation for the export of certain dual-use items from the Union to the United Kingdom of Great Britain and Northern Ireland   
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  United  Kingdom  submitted  on  29  March  2017  the  notification  of  its  intention  to 
withdraw from the Union pursuant to Article 50 of the Treaty on European Union. This means 
that, if the Withdrawal Agreement1 is not ratified, the Unions’ primary and secondary law will 
cease  to  apply  to  the  United  Kingdom  from  30  March  2019  (‘the  withdrawal  date’).  The 
United Kingdom will then become a third country. 

The Commission Communication ‘Preparing for the withdrawal of the United Kingdom from 
the European Union on 30 March 2019: a Contingency Action Plan’ of 13  November 20182 
has  set  out  the  contingency  measures  it  plans  to  take  for  the  case  that  no  withdrawal 
agreement  will  enter  into  force  on  the  withdrawal  date.  In  that  Communication,  the 
Commission listed the actions it considered necessary while recalling that additional actions 
may be necessary at a later stage. 

The  European  Council  (Article  50)  reiterated  its  call,  on  13  December  2018,  for  work  on 
preparedness  at  all  levels  for  the  consequences  of  the  United  Kingdom's  withdrawal  to  be 
intensified,  taking  into  account  all  possible  outcomes.  This  act  is  part  of  a  package  of 
measures which the Commission is adopting in response to this call. 

Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the 
control of exports, transfer, brokering and transit of dual-use items3 creates a common system 
of  controls  for  export  of  dual-use  items,  in  line  with  the  international  commitments  and 
responsibilities of the Member States and of the European Union (EU). Under the Regulation, 
an  authorisation  shall  be  required  for  the  export  of  dual-use  items  to  third  countries.  This 
authorisation  may  be  an  individual,  global  or  general  authorisation.  In  order  to  support  the 
EU’s competitiveness and establish a level playing field for all Union exporters, while at the 
same time ensuring a high level of security and full compliance with international obligations, 
Council Regulation (EC) No 428/2009 provides for "Union General export authorisations" for 
the  export  of  certain  dual-use  items  to  certain  third  countries  under  certain  conditions.  In 
particular,  Annex  IIa  to  the  Regulation  provides  for  a  Union  General  Export  Authorisation 
(“EU001”)  for  certain  low-risk  transactions,  e.g.  exports  to  Australia,  Canada,  Japan,  New 
Zealand, Norway, Switzerland (incl. Liechtenstein), and the United States of America. 

The  withdrawal  of  the  United  Kingdom  from  the  Union  without  an  agreement  affects  the 
trade  of  dual-use  items  between  the  EU  and  the  United  Kingdom:  according  to  Council 
Regulation  (EC)  No  428/2009,  the  export  of  dual  use  items  from  the  EU  to  the  United 
Kingdom  will  require,  as  of  the  withdrawal  date,  an  export  authorisation  issued  by  the 
competent national authority of the Member State where the exporter is established.  

There  are  a  number  or  reasons  why  the  United  Kingdom  should  be  added  to  the  list  of 
countries on EU001: 

1  
2 
3 

https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf. 
COM(2018) 880 final 
OJ L 134, 29.5.2009, p. 1. 

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The  United  Kingdom  is  a  party  to  relevant  international  treaties  and  a  member  of 
international  non-proliferation  regimes  and  maintains  full  compliance  with  related 
obligations and commitments; 

The  United  Kingdom  maintains  full  compliance  with  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 resolution of the Security Council of the United Nations;  

The  United  Kingdom  applies  proportionate  and  adequate  controls  effectively 
addressing considerations about intended end use and the risk of diversion consistent 
with the provisions and objectives of this Regulation.  

Moreover,  it  is  necessary  to  ensure  a  uniform  and  consistent  application  of  controls 
throughout the EU in order to provide a level playing field for EU exporters and to protect EU 
and international security. 

This  proposal  does  not  affect  the  ongoing  ordinary  legislative  procedure  to  recast  Council 
Regulation (EC) No 428/2009 proposed by the Commission on 28 September 2016.4 

• 

Consistency with other Union policies 

The  EU  export  control  regime  for  dual-use  items  provides  that  export  authorisations  are 
normally issued by the national competent authorities based on case-by-case assessments. A 
requirement for a specific authorisation  for export to  the United Kingdom  is  likely to  cause 
significant administrative burden for exporters and competent authorities and risk creating an 
uneven playing field for exporters in the Member State, thus affecting the good functioning of 
the internal market and of the Common Commercial Policy. These disruptive effects could be 
mitigated by adding the United Kingdom to the list of destinations covered by EU001. This 
proposal  is  thus  consistent  with  the  general  approach  to  contingency  measures  to  address  a 
withdrawal of the United Kingdom without agreement. 

Moreover,  considering  that  the  United  Kingdom  is  an  important  destination  for  dual-use 
exports  and  that  it  is  committed  to  and  ensures  full  compliance  with  relevant  international 
obligations and commitments, adding the United Kingdom to the list of destinations covered 
by EU001 is also consistent with the objectives of this Regulation with respect to international 
and EU security. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  is  Article  207  of  the  Treaty  on  the  Functioning  of  the  European  Union 
(TFEU). 

• 

Subsidiarity (for non-exclusive competence)  

Not applicable as international trade is an exclusive EU competence. 

• 

Proportionality 

The  proposed  Regulation  is  considered  proportionate  as  it  will  avoid  disproportionate  trade 
disruptions and excessive administrative burden for EU exports of dual-use items to the UK 

4 

COM(2016) 616 final. 

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while  preserving  international  and  EU  security.  It  does  not  go  beyond  what  it  necessary  to 
achieve this objective and it refrains from any broader changes.  

• 

Choice of the instrument 

This proposal contains a limited amendment to address a very specific and one-off situation. 
Since the list of third countries covered by EU001 is established by Council Regulation (EC) 
No 428/2009 and considering that the Commission has no power to add other countries to that 
list,  a  regulation  of  the  European  Parliament  and  Council  appears  to  be  the  only  adequate 
form of legal act to address this situation.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not  applicable  due  to  the  exceptional  and  one-off  nature  of  the  event  necessitating  this 
proposal. 

• 

Stakeholder consultations 

The  specific  circumstances  surrounding  the  negotiations  for  the  withdrawal  of  the  United 
Kingdom from the Union and the continuously evolving situation posed major limitations on 
the possibility to consult publicly on the proposal. However, the challenges arising from the 
United Kingdom's withdrawal from the EU and possible solutions have been raised by various 
stakeholders and Member States' representatives. 

• 

Impact assessment 

In line with the Better Regulation Guidelines, an impact assessment is not needed, due to the 
exceptional nature of the situation. There are no materially different policy options available 
except for the one proposed.  

• 

Fundamental rights 

The proposal has no impact on the application or protection of fundamental rights.  

4. 

BUDGETARY IMPLICATIONS 

Not applicable.  

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Not applicable due to the short-term nature of the proposed measure.  

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2018/0435 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 428/2009 by granting a Union General Export 
Authorisation for the export of certain dual-use items from the Union to the United 
Kingdom of Great Britain and Northern Ireland  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 207(2) thereof, 

Having regard to the proposal from the European Commission, 

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

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

5 

On 29 March 2017, the United Kingdom submitted the notification of its intention to 
withdraw from the Union pursuant to Article 50 of the Treaty on European Union. The 
Treaties will cease to apply to the United Kingdom from the date of entry into force of 
a withdrawal agreement or failing that, two years after that notification, that is to say 
from  30  March  2019,  unless  the  European  Council,  in  agreement  with  the  United 
Kingdom, unanimously decides to extend that period.  
Council  Regulation  (EC)  No  428/20095  sets  up  a  common  system  for  the  control  of 
exports  of  dual-use  items  which  is  necessary  to  promote  Union  and  international 
security and to provide a level playing field for Union exporters. 

Regulation  (EC)  No  428/2009  provides  for  "Union  General  export  authorisations" 
which  facilitate  controls  on  low-risk  exports  of  dual-use  items  to  certain  third 
countries.  Currently,  Australia,  Canada,  Japan,  New  Zealand,  Norway,  Switzerland, 
including  Liechtenstein,  and  the  United  States  of  America  are  covered  by  Union 
General export authorisation No. EU001. 

The  United  Kingdom  is  a  party  to  relevant  international  treaties  and  a  member  of 
international  non-proliferation  regimes,  maintains  full  compliance  with  related 
obligations  and  commitments,  and  applies  proportionate  and  adequate  controls  to 
effectively  address  considerations  about  intended  end  use  and  the  risk  of  diversion 
consistent with the provisions and objectives of this Regulation. 

Considering  that  the  United  Kingdom  is  an  important  destination  for  dual-use  items 
produced  in  the  Union,  it  is  appropriate  to  add  the  United  Kingdom  to  the  list  of 
destinations covered by the Union General export authorisations No. EU001 in order 
to  ensure  a  uniform  and  consistent  application  of  controls  throughout  the  Union,  to 

Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of 
exports, transfer, brokering and transit of dual-use items (OJ L 134, 29.5.2009, p. 1). 

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(6) 

(7) 

promote  a  level  playing  field  for  Union  exporters  and  to  avoid  an  unnecessary 
administrative burden, while protecting Union and international security.  

Given  the  urgency  entailed  by  the  circumstances  of  the  United  Kingdom's  departure 
from  the  European  Union,  it  is  necessary  to  allow  for  a  prompt  application  of  the 
provisions  provided  for  in  this  Regulation  concerning  the  inclusion  of  the  United 
Kingdom  in  the  Union  General  export  authorisation  No  EU001.  Therefore,  this 
Regulation should enter  into force on the day following that of its  publication in  the 
Official Journal of the European Union.  

The United Kingdom should be added to the list of destinations covered by the Union 
General  export  authorisations  No.  EU001  only  in  a  situation  where  no  withdrawal 
agreement concluded with the United Kingdom in accordance with Article 50(2) of the 
Treaty  on  European  Union  has  entered  into  force  by  the  date  the  Treaties  cease  to 
apply  to  and  in  the  United  Kingdom  pursuant  to  Article  50(3)  of  the  Treaty  on 
European Union, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Annex IIa, Part 2 of Council Regulation (EC) No 428/2009 is amended as follows:  

(a) 

the  title  "Exports  to  Australia,  Canada,  Japan,  New  Zealand,  Norway,  Switzerland, 
including Liechtenstein, and United States of America" is replaced by the following: 

"Exports to Australia, Canada, Japan, New Zealand, Norway, Switzerland, including 
Liechtenstein,  United  Kingdom  of  Great  Britain  and  Northern  Ireland  and  United 
States of America"; 

(b) 

in Part 2 the following is inserted after "Switzerland, including Liechtenstein":  

"- United Kingdom of Great Britain and Northern Ireland".  

Article 2 

Entry into force and application 

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

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It shall apply from the day following that on which the Treaties cease to apply to the United 
Kingdom pursuant to Article 50(3) of the Treaty on European Union. 

However,  this  Regulation  shall  not  apply  if  a  withdrawal  agreement  concluded  with  the 
United  Kingdom  in  accordance  with  Article  50(2)  of  the  Treaty  on  European  Union  has 
entered into force by that date. 

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

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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