REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the review of Regulation (EU) 2019/125 of 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment
Date: 2020-07-30
Institutions: European Commission, Service for Foreign Policy Instruments
Subjects: cruel and degrading treatment, death penalty, export (EU), export licence, human rights, import licence, international trade, third country, torture, trade regulations

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 30.7.2020  COM(2020) 343 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the review of  Regulation (EU) 2019/125 of 16 January 2019 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment  
 
 
1.  INTRODUCTION  

The trade in  goods which could  be used for (a)  capital  punishment  and (b) torture or other 
cruel,  inhuman  or  degrading  treatment  or  punishment  is  regulated  by  Regulation  (EU) 
2019/1251  (‘the  Regulation’).  Adopted  in  2005,  the  Regulation  is  a  reflection  of  the  EU’s 
strong commitment to eradicating torture and the death penalty.  

The EU Anti-Torture Regulation  has helped close a major  gap in  human rights-based trade 
controls.  It  introduced  unprecedented,  binding  trade  restrictions  on  a  range  of  goods  often 
absent from military, dual-use or other strategic export control lists. The Regulation has been 
widely  praised  by  the  international  human  rights  community:  for  example,  a  former  UN 
Special  Rapporteur  on  Torture,  Theo  van  Boven,  called  the  Regulation  a  milestone  in  the 
fight against torture and a model that could be followed by countries in other regions2. 

The Regulation was amended twice in 2011 and 2014 to update and expand the Annexes to 
the  Regulation  listing  prohibited  and  regulated  goods.  In  2016,  the  Regulation,  and  in 
particular its procedural provisions, was amended substantially. 

In line with the requirements of Article 32 of the Regulation, this report provides information 
about the Regulation’s implementation and impact between 2017 and 2019 hence since it was 
last amended in 2016. The report addresses the following areas in particular: amendments to 
the  Regulation  through  delegated  acts;  national  implementing  measures;  information 
requirements  as  well  as  an  assessment  of  the  activities  of  the  Anti-Torture  Coordination 
Group and of EU nationals abroad. 

This  report  also  provides  an  overview  of  key  data  under  the  Regulation  and  assesses  the 
Regulation’s  implementation  in  relation  to  the  basic  principles  of  relevance,  effectiveness, 
efficiency, coherence and EU added value.  

2.  REGULATION (EU) 2019/125 

2.1   Objective and main provisions of Regulation (EU) 2019/125 

The Regulation’s objective is to prevent capital punishment, on the one hand, and torture and 
other cruel, inhuman or degrading treatment or punishment in third countries, on the other. It 
distinguishes goods according to:  

-  whether they are inherently abusive and should not be traded at all (Annex II), or  

-  whether  they  can  have  legitimate  uses,  such  as  law  enforcement  equipment  (Annex 
III)  as  well  as  certain  pharmaceutical  chemicals  (Annex  IV),  in  which  case  trade  in 
these goods is subject to certain restrictions. 

To  that  end,  the  Regulation  introduces  restrictions  on  trade  with  non-EU  countries.  The 
Regulation, in particular: 

1 Regulation (EU) 2019/125 of 16 January 2019 concerning trade in certain goods which could be used for 
capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, OJ L 30, 31.1.2019, 
p. 1. 
2 As quoted in the European Council General Secretariat’s Implementation of the EU Guidelines on torture and 
other cruel, inhuman or degrading treatment or punishment – stock taking and new implementation measures, 
8407/1/08 REV 1 18 April 2008. 

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i. 

ii. 

iii. 

prohibits imports, exports and transit into, from or through the EU of goods (listed in 
Annex II) that have no practical use other than for the purposes of capital punishment 
or torture. The provision of any technical assistance related to such goods, specifically 
including training in their use, is also prohibited. In addition, the advertising of such 
goods on the internet, TV, radio, or at trade fairs is prohibited; 

subjects goods (listed in Annex III) that could be used for such purposes but that may 
also  have  other  legitimate  uses  (law  enforcement)  to  a  prior  export  authorisation, 
granted  on  a  case-by-case  basis;  such  authorisation  is  also  required  for  supplying 
technical assistance or brokering services related to this category of goods. Annex III 
does not include: (a) firearms controlled by Regulation (EU) No 258/20123; (b) dual-
use  items  controlled  by  Regulation  (EC)  No  428/20094;  (c)  goods  controlled  in 
accordance with Common Position 2008/944/CFSP5; 

regulates the trade in goods – chemicals or pharmaceutical substances (Annex IV)  – 
that  could  be  used  for  capital  punishment  (e.g.  products  which  could  be  used  to 
execute  human  beings  by  lethal  injection).  These  goods  were  added  to  the  list  of 
goods  subject  to  export  controls  in  2011.  A  distinct  license  authorisation  (‘EU 
General  Export  Authorisation’)  was  introduced  to  control  the  export  of  such 
anaesthetic  chemicals  and  to  prevent  their  transfer  for  use  in  lethal  injection 
executions  without  limiting  the  trade  of  such  chemicals  for  medical,  veterinary  or 
other legitimate purposes. Where the export of medicinal products requires an export 
authorisation pursuant to the Regulation and the export is also subject to authorisation 
requirements in accordance with international conventions controlling narcotic drugs 
and  psychotropic  substances,  such  as  the  1971  Convention  on  Psychotropic 
Substances,  Member  States  may  use  a  single  procedure  to  fulfil  the  obligations 
imposed on them by this Regulation and by the relevant convention. 

The Regulation includes detailed lists of goods referred to under (i) above with the following 
headings:  

-  goods and their components designed for the execution of human beings;  

-  goods which are not suitable for use by law enforcement authorities to restrain human 

beings;  

-  portable devices, as well as certain types of whips, which are not suitable for use by 

law enforcement authorities for the purpose of riot control or self-protection. 

Goods in category (ii) currently fall under the following headings:  

-  goods designed for restraining human beings;  

-  weapons and devices designed for the purpose of riot control or self-protection; 

3  REGULATION  (EU)  No  258/2012  of  14  March  2012  implementing  Article  10  of  the  United  Nations’ 
Protocol  against  the  illicit  manufacturing  of  and  trafficking  in  firearms,  their  parts  and  components  and 
ammunition,  supplementing  the  United  Nations  Convention  against  Transnational  Organised  Crime  (UN 
Firearms  Protocol),  and  establishing  export  authorisation,  and  import  and  transit  measures  for  firearms,  their 
parts and components and ammunition, OJ L 94, 30.3.2012, p. 1. 
4 Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of 
exports, transfer, brokering and transit of dual-use items, OJ L 134, 29.5.2009, p.1. 
5 Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military 
technology and equipment (CFSP) (2020/C 85/01), OJ, C 85-1, 13.3.2020. 

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-  weapons and equipment disseminating incapacitating or irritating chemical substances 

for the purpose of riot control or self-protection and certain related substances. 

Goods in category (iii) include in particular medicines which are particularly prone to being 
used  in  lethal  injections.  To  minimise  the  regulatory  burden  placed  on  companies  when 
exporting  life-saving  medicines,  the  Regulation  includes  a  system  of  global  export 
authorisations6  that  does  not  require  companies  to  seek  individual  export  authorisations  for 
each  shipment  of  medicines.  To  be  granted  a  global  authorisation,  companies  must 
demonstrate  that  they  have  appropriate  controls  in  place  to  prevent  the  sale  of  these 
medicines for use in executions. 

The  transit  (transport  within  the  customs  territory  of  the  EU  of  non-EU  goods  passing 
through  it  and  destined  for  third  countries)  of  Annex  II  goods  is  prohibited.  The  transit  of 
regulated goods listed in Annex III is generally not prohibited but is prohibited if the operator 
executing the transit of goods ‘knows that any part of a shipment of such goods is intended to 
be used for torture or other cruel, inhuman or degrading treatment or punishment in a third 
country’. 

The Regulation does not control the import into the EU, or the transfer between EU Member 
States,  of  law  enforcement  equipment  and  related  goods  that  can  have  legitimate  law 
enforcement  purposes  but  could  also  be  misused  for  torture  and  other  ill  treatment.  The 
Regulation also does not prohibit the intra-EU transfer of inherently abusive or inappropriate 
goods. 

The Regulation is legally binding and directly applicable in all EU Member States; it places 
obligations  upon  the  ‘exporters’.  The  competent  authorities  in  the  Member  States  are 
responsible  for  monitoring  compliance  with  the  prohibitions  and  licensing  requirements  of 
the Regulation. 

The  Regulation  requires  EU  Member  States  to  publish  annual  activity  reports  detailing 
relevant  license  applications  and  authorisations.  It  includes  further  measures  to  facilitate 
transparency  and  dissuade  one  EU  Member  State  from  circumventing  another  Member 
State’s  export  license  refusal.  It  also  contains  provisions  facilitating  the  regular  review  and 
amendment of lists of prohibited and regulated goods, enabling EU Member States to address 
a duly substantiated request to the Commission for consideration.  

2.2  Restrictions on trade: a key instrument to prevent torture and the death penalty 

Article  5  of  the  Universal  Declaration  of  Human  Rights,  Article  7  of  the  International 
Covenant  on  Civil  and  Political  Rights,  Article  3  of  the  European  Convention  for  the 
Protection  of  Human  Rights  and  Fundamental  Freedoms,  and  most  notably  the  United 
Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment  all  lay  down  an  unconditional,  comprehensive  prohibition  of  torture  and  other 
cruel, inhuman or degrading treatment or punishment. 

The  UN  General  Assembly  (UNGA)  called  in  2019  upon  all  States  to  ‘take  appropriate 
effective  legislative,  administrative,  judicial  and  other  measures  to  prevent  and  prohibit  the 

6 A ‘Union general export authorisation’ is an authorisation for export that applies to chemicals, which could be 
used for execution by lethal injection (Annex IV to the Regulation). It is used when those goods/chemicals are 
exported to countries that have abolished capital punishment for all crimes and confirmed that abolition through 
an international commitment. For countries that are not members of the Council of Europe, that list comprises 
the countries that have not only abolished capital punishment for all crimes but also ratified the Second Optional 
Protocol to the International Covenant on Civil and Political Rights without reservation. 

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production, trade, export, import and use of equipment that has no practical use other than for 
the purpose of torture or other cruel, inhuman or degrading treatment or punishment’7. 

The  absolute  ban  on  torture  enshrined  in  United  Nations  human  rights  conventions  is 
reflected  at  EU  level  in  the  Charter  of  Fundamental  Rights  of  the  European  Union  (the 
Charter)8.  Article  2(2)  of  the  Charter  states  that  no  one  shall  be  condemned  to  the  death 
penalty or executed. Article 4 of the Charter states that no one shall be subjected to torture or 
to inhuman or degrading treatment or punishment. 

Despite  States’  obligations  under  international  law,  acts  of  torture  and  other  ill  treatment 
continue to occur. In recent years, there has been a growing recognition by the international 
community of the need to regulate and restrict trade in certain law enforcement equipment to 
ensure that such goods are not employed for torture or other ill treatment. 

Inspired  by  the  EU  Regulation,  the  Alliance  for  Torture-Free  Trade,  promoted  by  the 
European  Union  and  co-sponsored  by  Argentina  and  Mongolia,  was  launched  in  2017.  It 
aims to make trade in goods intended, or with a potential to be used, for capital punishment 
and  torture  significantly  more  difficult  at  an  international  level.  By  joining  the  Alliance, 
countries  commit,  among  other  things,  to  taking  effective  measures  through  domestic 
legislation and efficient enforcement to restrict trade in goods used for torture and the death 
penalty. 

In June 2019, the UNGA adopted an important resolution paving the way for future work at 
UN-level towards establishing common international standards in this field9. The resolution, 
welcomed by the Council of the EU10, calls on countries to examine the feasibility, scope and 
parameters for possible common international standards for the trade of relevant goods. The 
UN Secretary General is expected to submit a report on the implementation of that resolution 
to the UNGA 74th session. As a second step, and on the basis of that report, a further report 
will  be  prepared  by  a  group  of  governmental  experts  (nominated  within  the  UN  system,  in 
accordance  with  the  criteria  laid  down  in  the  June  2019  resolution)  to  be  presented  to  the 
UNGA 75th session through 2021. 

The Council of Europe (CoE), for its part, is also exploring the feasibility of an initiative in 
this field. On 28 November 2019, the CoE Steering Committee on Human Rights agreed to 
support  a  proposal  to  develop  CoE-wide  guidelines  encouraging  or  facilitating  controls  by 
CoE  Member  States  on trade  in  goods  used  for  torture,  ill  treatment  and  the  death  penalty. 
The proposal further encourages all CoE States to join the Global Alliance for Torture-Free 
Trade and support the UN process to develop international measures in this area. Switzerland, 
North  Macedonia  and  Montenegro  have  opted  to  follow  the  Regulation  model,  with  the 
United Kingdom also announcing that it will be retaining the Regulation’s provisions after its 
departure from the EU. 

2.3   Scope of this report (Article 32 of the Regulation) 

Article 32 of the Regulation requires the Commission to present by 31 July 2020, and every 5 
years  after  that,  a  comprehensive  implementation  and  impact  assessment  report  to  the 

7UN  Resolution  adopted  by  the  General  Assembly  on  18  December  2019,  A/RES/74/143.  Torture  and  other 
cruel, inhuman or degrading treatment or punishment. 
8 OJ C 202, 7.6.2016, p. 389. 
9 A/RES/73/304 adopted by the General Assembly on 28 June 2019. 
10 Council Conclusions on the Guidelines on EU Policy Towards Third Countries on Torture and Other Cruel, 
Inhuman  or  Degrading  Treatment  or  Punishment  adopted  by  the  Council  at  its  3712th  meeting  held  on  16 
September 2019. 

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European  Parliament  and  to  the  Council,  which  may  include  proposals  for  its  amendment. 
The Regulation stipulates that this review will assess the need to include the activities of EU 
nationals abroad.  

Member States are required to provide the Commission with all appropriate information for 
preparing  the  report  Special  sections  of  the  report  are  to  deal  with  the  Anti-Torture 
Coordination  Group  set  up  by  the  Regulation  (Article  31)  and  with  its  activities  and  must 
provide information  on the measures  taken by the Member States pursuant  to  Article 33(1) 
(penalties). 

This report provides information on the Regulation’s implementation and impact since it was 
last amended in 2016 until the end of 2019, thus essentially covering activities in 2017, 2018 
and 2019. 

The report also assesses the Regulation’s implementation in relation to the basic principles of 
relevance, effectiveness, efficiency, coherence and EU added value. Such assessment focuses 
on  whether  the  Regulation  meets  its  main  objective(s)  and  whether  new  concerns  and 
challenges have arisen since 2016. This is to help determine whether further action is needed 
to address any identified shortcomings. 

3.  IMPLEMENTATION OF THE REGULATION 

3.1  Regulatory framework 

The Regulation was initially adopted as Regulation (EC) No 1236/2005 concerning trade in 
certain goods which could be used for capital punishment, torture or other cruel, inhuman or 
degrading treatment or punishment. It was adopted on 27 June 2005 and entered into force on 
30 July 200611. The last substantive amendment was adopted in 201612.  

The Regulation was codified as Regulation (EU) 2019/125 of the European Parliament and of 
the  Council  of  16 January  2019  concerning  trade  in  certain  goods  which  could  be  used  for 
capital punishment, torture or other cruel, inhuman or degrading treatment or punishment13. 

3.1.1 Amendments to the Regulation 

The Regulation was amended twice through delegated acts, once during the reporting period, 
and once in 2020. 
COMMISSION DELEGATED REGULATION (EU) 2018/181 of 18 October 201714 added 
the  Dominican  Republic,  Sao  Tome  and  Principe  and  Togo  to  the  list  of  countries  of 
destination to which the Union general export authorisation (Annex V) applies. 

-  COMMISSION  DELEGATED  REGULATION  (EU)  2020/621  of  18  February 
202015 amended Annex I  (updating the entries of several competent authorities) and 
Annex V (adding The Gambia and Madagascar to the list of countries of destination 
to which the Union general export authorisation applies). 

11 OJ L 200, 30.7.2005, p. 1–19. 
12 Regulation (EU) 2016/2134 of the European Parliament and of the Council of 23 November 2016 amending 
Council Regulation (EC) No 1236/2005 concerning trade in certain goods which could be used for capital 
punishment, torture or other cruel, inhuman or degrading treatment or punishment, OJ L 338, 13.12.2016, p. 1-
33. 
13 OJ L 30, 31.1.2019, p. 1 – 57. 
14 OJ L 40, 13.2.2018, p. 1.  
15 OJ 144,7.5.2020, p. 1-5. 

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The  Commission  is  empowered  to  adopt  delegated  acts  to  amend  the  list  of  goods  either 
prohibited or controlled, including through an ‘urgency procedure’ when imperative grounds 
of urgency so require. 

3.1.2 National implementing measures  
The  Regulation  is  binding  in  its  entirety  and  directly  applicable  in  all  Member  States.  The 
competent authorities in the Member States are responsible for its implementation. Member 
States  have  the  responsibility  to  decide,  on  a  case-by-case  basis,  whether  to  grant  an 
authorisation to export or dismiss an application for the regulated goods listed in Annex III 
and IV to the Regulation.  

In  order  to  prevent  circumvention,  the  Regulation  requires  the  competent  authorities  in  the 
Member States to notify all other Member State authorities and the Commission if they are 
refusing  to  issue  an  authorisation  or  are  annulling  an  existing  authorisation.  Consequently, 
any  EU  Member  State  considering  authorising  a  transaction  ‘essentially  identical’  to  one 
rejected by a Member State in the 3  years following the rejection is to consult the Member 
State  having  decided  on  the  rejection.  If  an  authorisation  is  granted  nonetheless,  the 
authorising  Member  State  must  provide  a  detailed  explanation  of  its  reasoning  to  the 
Commission  and  all  Member  States.  When  assessing  an  application,  the  authorities  are  to 
take  into  account  considerations  about  intended  end-use  and  the  risk  of  diversion  for 
illegitimate purposes.  

Member States ‘shall not grant an authorisation when there are reasonable grounds to believe 
that  the  goods  listed  in  Annex  III  might  be  used  for  torture  or  other  cruel,  inhuman  or 
degrading  treatment  or  punishment,  including  judicial  corporal  punishment,  by  a  law 
enforcement authority or any natural or legal person, or used for capital punishment in a third 
country’.  

The Regulation lists the following sources of information to guide the authorities’ decisions:  

- 
- 
- 

available international court judgements;  
findings of the competent bodies of the UN, the Council of Europe and the EU; 
reports of the Council of Europe's European Committee for the Prevention of Torture 
and  Inhuman  or  Degrading  Treatment  and  Punishment,  and  the  UN  Special 
Rapporteur  on  Torture  and  other  cruel,  inhuman  or  degrading  treatment  or 
punishment.  

Other information that the authorities may use when taking decisions include:  

- 
- 
- 

available national court judgements;  
reports by civil society organisations; and  
information on restrictions on exports of goods listed in Annexes II and III applied by 
the country of destination.  

The  same  criteria  apply  when  deciding  on  applications  related  to  the  supply  of  brokering 
services or technical assistance.  

Member States notified the Commission of 13 rejections over the reporting period. Details on 
the  export  authorisations  issued  and  dismissed  over  the  reporting  period  are  described  in 
Section 3.5. 

The  competent  authorities  in  the  Member  States  are  also  requested  to  register  in  a 
Commission  database  all  data  concerning  refusals  of  applications  for  an  authorisation  to 
export.  The  database  identifies  the  relevant  EU  competent  authority,  final  destination,  item 
concerned, description of the item, and the name of the consignee as well as of the end user.  

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The Regulation defines a mechanism for adding goods to Annex II, Annex III or Annex IV, 
enabling an EU Member State to address a duly substantiated request to the Commission for 
consideration. The Commission has not received any such request over the reporting period. 

In  addition  to  the  list  of  goods  whose  trade  is  prohibited  or  regulated,  the  Regulation  also 
includes provisions allowing EU Member States to autonomously introduce further national 
measures to regulate trade in certain additional goods. 

According  to  Article  10  of  the  Regulation,  Member  States  may  adopt  or  maintain  national 
measures restricting transportation, financial services, insurance or re-insurance, and general 
advertising  or  promotion  for  goods  listed  in  Annex  II.  Notably,  the  United  Kingdom16 
maintains national restrictions on the movement of goods between third countries outside the 
EU. 

Furthermore,  according  to  Article  14  of  the  Regulation,  Member  States  may  adopt  or 
maintain a prohibition on the export and import of leg irons, gang chains and portable electric 
shock devices. Member States may also impose an authorisation requirement on the export of 
oversized handcuffs. Based on the information made available to the Commission, Belgium17, 
Greece18, Luxembourg19, Spain20 and the United Kingdom21 have such additional restrictions 
in  place. Hungary and  Italy have also  related measures in  place.  Slovakia  has  informed the 
Commission  that  it  will  be  starting  a  legislative  process  in  2020  to  amend  its  2007  act  on 
trade  in  certain  goods,  which  could  be  used  for  capital  punishment,  torture  or  other  cruel, 
inhuman or degrading treatment. 

The competent Member State authorities inform the Commission of their activities under the 
Regulation.  The  Commission’s  annual  report  is  based  on  the  information  provided  by  the 
Member  States,  including  through  the  national  reports  drawn  up  pursuant  to  Article  26(3). 
During  the  reporting  period,  the  Commission  issued  a  report  on  Member  States’ 
authorisations in 2017 and 2018 for exports of goods which could be used for torture or for 
capital punishment22. A report on export authorisations in 2019 is expected to be adopted in 
the second half of 2020. 

3.2  Activities of the Anti-Torture Coordination Group 

16 This report covers 2017, 2018 and 2019, i.e. before the United Kingdom’s departure from the European Union 
on 31 January 2020.  
17  The  Flemish  Arms  Trade  Law  of  15  June  2012  prohibits  the  import  of  all  portable  electric  shock  devices 
which  can  make  persons  defenseless  or  which  can  inflict  pain,  except  for  medical  or  veterinary  devices 
(exceptions apply to allow official use). As for the Walloon Region, according to the Arms Trade Decree of 21 
June 2012, the import, export and transit of any type of portable electric shock devices, except for medical or 
veterinary tools, that might disable persons or inflict pain upon them are prohibited. 
18  Greece  maintains  national  additional  measures  for  two  goods  listed  in  Annex  II  to  the  Regulation,  namely 
electric shock devices and cuffs (see Law 2168/1993 as amended).  
19 The export and import of leg irons and gang chains are prohibited under Article 36 (1) of the amended Law of 
27 June 2018 on export control. The export and import of portable electric shock devices are prohibited, except 
when these accompany the user for the purpose of personal protection under Article 36 (1) of the amended Law 
of 27 June 2018 on export control. Furthermore, an authorisation is required for the export of handcuffs, which 
have an overall dimension, including chains, measured from the outer edge of one handcuff to the outer edge of 
the other cuff exceeding 240 mm (Article 36 (2) of the amended Law of 27 June 2018 on export control). 
20 Under Royal Decree 679/2014 of 1 August 2014 ’stablishing the control on external trade in defence material, 
other material and dual-use items and technologies,  Spain controls the export  of standard handcuffs, requiring 
prospective exporters to obtain a licence to export these restraints. 
21 Article 9 of the United Kingdom’s Export Control Order 2008 requires a licence for the export of goods listed 
in Article 14(1). 
22 COM (2019) 445 of 1.10.2019. 

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The  Anti-Torture  Coordination  Group  (ATCG)  was  established  following  the  2016 
amendment  to  the  Regulation23  and  serves  to  ‘examine  any  questions  concerning  the 
application of this Regulation.’ The ATCG, chaired by the Commission, serves as a platform 
for  Member  States'  representatives  and  the  Commission  to  exchange  information  on 
administrative  practices.  Furthermore,  when  preparing  delegated  acts,  the  Commission 
consults  the  ATCG  in  accordance  with  the  principles  laid  down  in  the  Inter-institutional 
Agreement of 13 April 2016 on Better Law-Making24. 

The ATCG held four meetings during the reporting period: on 12 July 2017, 28 June 2018, 29 
April 2019 and 17 December 2019. 

In line with Article 31(4) of the Regulation, the Commission submits a report to the European 
Parliament on the activities, examinations and consultations of the Anti-Torture Coordination 
Group. During the reporting period covered by this report, the Commission adopted a report 
in October 201925 covering 2017 and 2018. A report on the activities of the ATCG in 2019 is 
expected to be adopted in the second half of 2020. 

The  ATCG  had  technical  exchanges  on  the  tools  available  in  the  Commission’s  electronic 
database, a secure and encrypted system  created to  help  the national  authorities responsible 
for  export  control  matters  exchange  information  with  the  Commission.  Article  23(5)  of  the 
Regulation requires the competent authorities to use that system to communicate information 
on cases where a request for an export authorisation was rejected (referred to as ‘denials’).  

The  ATCG  dicussed  the  prior  authorisation  requirement  for  certain  types  of  technical 
assistance  and  brokering  services  laid  down  in  Articles  15  and  19  of  the  Regulation.  The 
ATCG also held technical exchanges on the prohibitions laid down in Articles 8 and 9 of the 
Regulation  concerning  the  inclusion  of  listed  goods  in  trade  fairs  and  advertising 
respectively. These prohibitions were introduced by the 2016 amendment to the Regulation. 
The  exchanges  covered  in  particular  possible  guidance  for  relevant  authorities  as  well  as 
enforcement modalities. It  was noted that there had been reported instances of goods being 
advertised on the websites of some European suppliers.  

In line with  recital  48, the ATCG also  examined the  proposed delegated  acts  amending the 
Annexes  to  the  Regulation,  which  were  eventually  adopted  on  18  October  2017  and  18 
February 2020 (see Section 3.1.1 above). 

Another  aspect  that  featured  in  the  ATCG’s  work  concerned  the  reporting  requirements  of 
national  competent  authorities.  Further  to  these  dicussions,  a  broader  range  of  trade  data  is 
being gathered for the Commission’s annual report for 2019. 

Laslty, the ATCG had an exchange of views on the Alliance for Torture-Free Trade and the 
progress towards possible common international standards in this field.  

3.3  Transparency and information 

Article  26(3)  of  the  Regulation  requires  that  EU  Member  States  prepare  a  public,  annual 
activity report, providing information  on the number of applications received, on the goods 
and  countries  concerned  by  these  applications,  and  on  the  decisions  taken  on  these 
applications. 

 23Regulation (EU) 2016/2134 of the European Parliament and of the Council of 23 November 2016 amending 
Council  Regulation  (EC)  No  1236/2005  concerning  trade  in  certain  goods  which  could  be  used  for  capital 
punishment, torture or other cruel, inhuman or degrading treatment or punishment, OJ L 338, of 13.12.2016, p.1. 
24 OJ L 123, 12.5.2016, p. 1. 
25 COM (2019) 449 final of 7.10.2019. 

8 

 
 
                                                           
Czechia26,  Denmark27,  Germany28,  Romania29  and  the  United  Kingdom30  informed  the 
Commission  about  their public  2019  annual  activity  reports31.  To  be  noted  that  pursuant  to 
Article  26  (3)  of  the  Regulation,  the  public  reports  'shall  not  include  information  the 
disclosure of which a Member State considers to be contrary to the essential interests of its 
security'. 

A  limited  number  of  competent  authorities  has  published  information  on  their  government 
website  about  the  rules  and  regulations  applicable  to  the  goods  within  the  scope  of  the 
Regulation in order to inform economic operators about export authorisation procedures and 
further requirements. 

3.4  Export controls enforcement 

The competent authorities in the Member States are responsible for enforcing export controls. 
In accordance with Article 33 of the Regulation, ‘Member States shall lay down the rules on 
penalties applicable to infringements of this Regulation and shall take all measures necessary 
to  ensure  that  they  are  implemented.  The  penalties  provided  for  shall  be  effective, 
proportionate  and  dissuasive.’  Hence,  EU  Member  States  develop  national  penalties 
applicable to infringements of the Regulation by persons and entities alike.  

These national penalties include both administrative and criminal sanctions, ranging typically 
from pecuniary fines to imprisonment, including confiscation of the goods.  

During the reporting period, the competent authorities did not inform the Commission of any 
infringements of the Regulation. The Regulation does not oblige the competent authorities to 
do so. 

3.5  Export authorisations: Key data 

The  Commission  gathers  data  from  the  competent  authorities  that  enable  it  to  have  an 
overview  of  the  export  authorisations  granted  (or  dismissed)  in  relation  to  the  controlled 
goods described in Annexes III and IV to the Regulation. 
Drawing on the data from the Commission’s report32 for both 2017 and 2018 and on the data 
being  collected  for  the  Commission’s  2020  report  covering  201933,  the  number  of  export 
authorisations granted (or dismissed) for 2017-2019 can be summarised as follows34: In 2017 
a  total  of  292  authorisations  granted  by  12  Member  States  were  reported.  In  2018,  11 

http://www.imm.gov.ro/adaugare_fisiere_imm/2019/10/Rapoarte-anuale-comert-tortura-2017-

https://www.mpo.cz/cz/zahranicni-obchod/licencni-sprava/mucici-nastroje/zprava-ministerstva-

26Czechia: 
prumyslu-a-obchodu-o-plneni-narizeni-rady-es-c--1236-2005-za-rok-2018--54368/ 
27 Denmark: https://eksportkontrol.erhvervsstyrelsen.dk/produkter  
28 Germany:  
https://www.bafa.de/DE/Aussenwirtschaft/Ausfuhrkontrolle/Antragsarten/Anti_Folter_Verordnung/anti_folter_
node.html 
29  Romania: 
2018.pdf 
30  Under  Article  127(6)  of  the  Agreement  on  the  withdrawal  of  the  United  Kingdom  of  Great  Britain  and 
Northern Ireland from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, 
p.  7),  during  the  transition  period  provided  for  by  Article  126  of  that  Agreement,  any  reference  to  Member 
States in the relevant Union law shall be understood as including the United Kingdom. 
31 The UK: https://www.gov.uk/government/collections/strategic-export-controls-licensing-data 
32  Report  on  export  authorisations  in  2017  and  2018  pursuant  to  the  Regulation  concerning  trade  in  certain 
goods  which  could  be  used  for  capital  punishment,  torture  or  other  cruel,  inhuman  or  degrading  treatment  or 
punishment - COM/2019/445 final. 
33 See Article 26.4 of the Regulation. 
34 Exports pursuant to the Union general export authorisation (Annex V to the Regulation) are not included in 
the information on the number of authorisations granted by Member States. 

9 

 
 
                                                           
Member States reported that they had granted a total of 231 authorisations. In 2019 a total of 
281 authorisations granted by 10 Member States were reported35. Hence, the total number of 
authorisations granted over the entire three-year reporting period amounts to 804. 

Fifteen Member States informed the Commission that over the reporting period they had not 
received any applications for authorisations pursuant to Regulation (EU) 2019/125. 

The  Regulation  imposes  an  export  authorisation  requirement  enabling  the  competent 
authorities to check for any indications that the goods, if exported, might be used for torture 
or  other  cruel,  inhuman  or  degrading  treatment  or  punishment  (Annex  III)  or  for  capital 
punishment  (Annex  IV).  To  that  end,  Article  20(8)  of  the  Regulation  provides  that  the 
competent  authority should  receive ‘complete information  in  particular on the end-user, the 
country of destination and the end-use of the goods’. 

During  the  three-year  reporting  period,  13  applications  for  an  export  authorisation  were 
reported as having been rejected: 4 in 2017, 5 in 2018 and 4 in 2019.  

The information available to the Commission, which is based on the data communicated by 
the  competent  authorities,  enables  the  Commission  to  distinguish  between  end-use  for  law 
enforcement, science health care, end-use by security firms,  medical  end-use (hospitals and 
veterinary use) of goods listed in Annex IV, industrial use and export to trading firms. Over 
the  three-year  period  covered  by  this  report,  56  export  authorisations  were  reported  to  be 
granted  for  law  enforcement  purposes,  52  for  science/health  care  purposes,  while  the 
remainder  (74)  were  issued  for  other  purposes,  mostly  traders  and  private  security  firms.  It 
should be noted in this regard that not all Member States provide a complete account and/or 
information on end-users, and as such, the data on end use do not match the total number of 
licenses referred to above. 

3.6  EU nationals abroad 

While not strictly part of the assessment of how the Regulation is implemented, Article 32 of 
the Regulation envisages that the review will also assess whether it is necessary to include the 
activities  of  EU  nationals  abroad  within  the  scope  of  the  Regulation.  This  section  outlines 
areas where the activities of EU established companies, EU nationals, or residents of an EU 
Member  State  who  are  acting  in  third  countries  could  be  assessed.  This  concerns  the 
following activities: 

-  Brokering,  i.e.  arranging  the  transfer  of  equipment  between  third  countries  outside 
the EU, where the items do not enter EU customs territory and where such activities 
are conducted by EU entities outside the EU: 

The Regulation does not prohibit brokering activities for Annex II goods nor does it 
control  brokering  activities  for  Annex  III  goods  when  conducted  by  EU  brokers 
operating outside the EU. 

-  Promotion/marketing of relevant goods and services by EU entities outside the EU, 
or  the  facilitation  of  such  marketing,  for  example  through  the  organisation  of  arms, 
security, and related exhibitions and fairs in third countries: 

35 At the time of finalising this report, three EU Member States had not provided the Commission with the trade 
data related to 2019.  

10 

 
 
 
 
                                                           
Article  8  of  the  Regulation  prohibits  ‘any  natural  or  legal  person,  entity  or  body, 
including a partnership, whether resident or established in a Member State or not, to 
display  or  offer  for  sale  any  of  the  goods  listed  in  Annex  II  in  an  exhibition  or  fair 
taking place in the Union’ (emphasis added). 

-  Provision  of  technical  assistance  and  training  in  the  use  of  law  enforcement 
equipment  or  techniques  by  EU  entities  to  military,  security,  or  police  forces  or  to 
non-State actors, such as private security companies, in third countries: 

Article  7  of  the  Regulation  prohibits  a  ‘supplier  of  technical  assistance  or  a  broker’ 
from ‘supplying or offering to any person, entity or body in a third country, training 
on the use of goods listed in Annex II’. In addition, under Article 15, Member States 
are required to specifically authorize the provision of ‘technical assistance related’ to 
Annex  III  goods.  The  supply  of  technical  assistance  including  training  is  only 
prohibited or controlled when it is directly for equipment covered by the Regulation 
(Annex II or Annex III). Technical assistance may be delivered independently of the 
supply of the equipment within the scope of the Regulation. 

Two non-governmental organisations (NGOs) dealing with human rights and engaged in the 
review assessment have drawn attention to the case of EU nationals operating outside the EU 
who  have  been  involved  in  providing,  for  instance,  security  and  law  enforcement  training 
services in inappropriate or abusive use of law enforcement equipment. They have also drawn 
attention to the case of companies organising arms fairs or exhibitions in third countries. In 
particular, they consider that the current geographical restriction outlined in Article 8 should 
be removed and that any EU natural or legal person, entity or body should be prohibited from 
promoting Annex II goods at exhibitions or fairs irrespective of the country in which they are 
held.  In  addition,  they  consider  that  controls  should  be  introduced  (either  through  the 
Regulation or through other appropriate measures) to regulate the provision of instruction or 
training by all relevant educational establishments, so that such provision does not promote or 
include inappropriate or  abusive policies, practices, or techniques that could  facilitate or be 
employed in torture or other ill treatment in third countries. 

Addressing the issues highlighted poses difficulties in relation to the territorial reach of EU 
jurisdiction.  In  international  law,  in  principle,  jurisdiction  is  territorial  and  cannot  be 
exercised by  a State outside its territory except  by virtue of  a permissive rule derived from 
international  custom  or  from  a  convention.  However,  there  are  exceptions  to  this  principle, 
which  are  relevant  here.  For  example,  international  law  allows  penalising  extraterritorial 
activities  of  nationals  of  a  State  when  it  comes  to  criminal  offenses  committed  outside  its 
territory36. In the case of particularly serious crimes that have been made subject to universal 
jurisdiction  either  by  a  multilateral  treaty37  or  under  customary  international  law  such  as 
genocide, war crimes, crimes against humanity and torture, a State may exercise jurisdiction 
in respect of crimes irrespective of the location of the crime and irrespective of the nationality 
of the perpetrator or the victim.  

Unilateral  decisions  to  exercise  jurisdiction  beyond  the  EU  territory  should  be  carefully 
considered in light of international law and practice. Given that whether a State may lawfully 
exercise  extraterritorial  jurisdiction  is  a  matter  of  international  law,  it  is  important  to 

36See  Art.  5  (1)  (b)  Convention  against  Torture  and  Other  Cruel,  Inhuman  or  Degrading  Treatment  or 
Punishment of 1984 ([adopted 10 December 1984, entered into force 26 June 1987] 1465 UNTS 112; ‘CAT’). 
37See the Geneva Conventions I–IV (1949). 

11 

 
 
 
 
                                                           
vigorously and effectively promote torture-free trade in the appropriate international fora so 
as to extend the global response to the objectives that the Regulation aims to promote.  

Other appropriate measures could also be explored, for instance measures promoting greater 
transparency and awareness raising or measures promoting effective compliance with the UN 
Guiding Principles on Business and Human Rights38. Indeed, the UN Guiding Principles on 
Business and Human Rights state that businesses should respect human rights. They should 
not infringe on the human rights of others and should address adverse human rights impacts. 
Addressing  adverse  human  rights  impacts  requires  taking  appropriate  measures  for  their 
prevention, mitigation and, where appropriate, remediation. 

4.  ASSESSING THE REGULATION’S IMPLEMENTATION 

4.1  Assessment criteria and data sources 

Incorporating  the  substantive  assessment  criteria  of  Article  32  of  the  Regulation,  the 
Commission  has  assessed  the  Regulation’s  performance  in  line  with  its  Better  Regulation 
Guidelines,39 evaluating the following elements: 

-  Relevance: The extent to which the overall objectives of the Regulation, its design and 
the national implementation measures provided for in the Regulation respond to EU 
priorities at the time the Regulation was adopted as well as to current EU priorities. 

-  Efficiency:  The  extent  to  which  the  Regulation  is  delivering  efficiently.  This  covers 
the efficiency of implementation by Member States and the oversight by the European 
Commission,  while  assessing  whether  there  are  any  gaps  or  duplications  in 
information  requirements,  which  could  undermine  the  effectiveness  or  efficient 
implementation  of  the  Regulation  and  whether  reporting  requirements  are  adequate 
and proportionate. 

-  Effectiveness:  The extent to  which the Regulation  is  delivering  on its  objectives and 

EU priorities. 

-  Coherence  and  complementarity:  The  extent  to  which  the  Regulation  facilitates 
coherence and complementarity with other relevant EU and Member State initiatives. 

-  EU  added  value:  The  extent  to  which  the  Regulation  adds  value  to  individual 

measures by EU Member States. 

The  main  sources  of  information  for  gathering  evidence  for  the  assessment  were  written 
submissions including a study, surveys40, interviews and a workshop with key stakeholders.  

Over 30 participants took part in the stakeholder workshop. They came from a broad range of 
organisations,  including  the  competent  authorities  of  the  Member  States,  the  European 
Commission,  international  organisations  such  as  the  UN  and  the  Council  of  Europe,  and 
NGOs.  

38 “Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and 
Remedy’  Framework”  were developed by the Special  Representative of the  Secretary-General on the issue of 
human  rights  and  transnational  corporations  and  other  business  enterprises.  The  Human  Rights  Council 
endorsed the Guiding Principles in its resolution 17/4 of 16 June 2011. 
39  See  https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-
and-how/better-regulation-guidelines-and-toolbox_en. 
40 Eleven Member States provided feedback, while 15 respondents contributed to the public survey, of which 8 
were  from  the  public,  4  from  NGOs,  2  from  the  private  sector  and  1  from  academia.  The  Commission  has 
further received submissions outside the public survey. 

12 

 
 
 
                                                           
The assessment of the data and information gathered led to the following findings. 

4.2  Relevance 

4.2.1 Policy considerations 

The Regulation, as initially adopted in 2005, responded to the need for ‘Union rules on trade 
with third countries in goods which could be used for the purpose of capital punishment, and 
in  goods  which  could  be  used  for  the  purpose  of  torture  and  other  cruel,  inhuman  or 
degrading treatment or punishment.’ These rules aimed to fill an identified gap in EU human 
rights-based  trade  controls  and  constituted  the  world’s  first  binding  instrument  specifically 
addressing the issue. In order to maintain its relevance, the Regulation was amended in 2011, 
2014 and 2016.  

In addition to constituting the world’s first operational framework to regulate trade in torture-
related  goods,  its  current  relevance  is  confirmed  by  the  role  it  has  played  as  a  source  of 
inspiration  for  work  in  this  area  by  other  countries  and  organisations.  Most  notably,  it  has 
inspired the decision by  the UN to  develop  common  international  standards on the trade in 
tools of torture41. The Regulation is also credited with inspiring the development of Council 
of Europe (CoE) region-wide measures to address the trade in equipment used for torture, ill 
treatment and the death penalty.  

Further reinforcing the perceived relevance of this instrument  is  the fact  that  some non-EU 
Member  States  have  opted  to  follow  the  Regulation  model,  e.g.  Switzerland,  North 
Macedonia  and Montenegro,  with  the United Kingdom  also  announcing it will be retaining 
the Regulation’s provisions following its departure from the EU. 

4.2.2 Relevance of goods and services covered 

The  Regulation  currently  covers  a  broad  range  of  goods  related  to  capital  punishment  and 
torture. 

With  regard  to  the  coverage  of  the  Regulation  in  terms  of  goods,  activities,  and  persons, 
Article  25  of  the  Regulation  stipulates  that  each  Member  State  can  address  a  duly 
substantiated request to the Commission to add goods to Annex II, Annex III or Annex IV. 
During the period under review, no such requests were made. 

Two human rights NGOs, which have engaged in the review exercise, consider in particular 
that the Regulation should be able to respond to changes in the international security market 
where  technological  and  market  developments  are  occurring  frequently.  In  their  view,  the 
Regulation  should  also  take  account  of  changes  in  the  nature  of  use,  and  misuse,  of  law 
enforcement equipment. The particular case of rebranding products to circumvent the scope 
of  the  Regulation  was  also  raised  as  a  point  of  concern,  confirming  the  need  for  a  regular 
update of the lists of goods covered. According to these NGOs, some of the goods currently 
listed  under  Annex  III  could  be  moved  to  Annex  II,  such  as  direct  contact  electric  shock 
weapons (including electric shock batons, shields, and stun guns), and other goods could also 
usefully be added, such as prison hoods and blindfolds, restraint chairs, boards and beds with 
straps  intended  for  law  enforcement  purposes.  According  to  these  NGOs,  for  Annex  III, 
controlled  goods  that  could  be  added  include  ‘standard  handcuffs,’  hand-held  striking 
weapons and certain launched kinetic impact weapons. 

41  Resolution  A/73/L.94:  ‘Towards  torture-free  trade:  examining  the  feasibility,  scope  and  parameters  for 
possible common international standards,’ adopted by the UN General Assembly on 28 June 2019. 

13 

 
 
 
                                                           
Riot  control  agents  present  a  specific  issue.  In  recent  years,  there  has  been  a  surge  in  their 
availability and use. Two human rights NGOs, which have engaged in the review assessment, 
consider that these are not adequately covered by the Regulation, as there is a certain degree 
of inconsistency with  the EU ‘common military  list’42. When developing (and revising) the 
Regulation, goods already covered by other EU instruments were specifically excluded from 
the  scope  of  the  Regulation.  In  practice,  this  exclusion  has  led  to  a  situation  where  the 
Regulation  covers  the  control  of  some  riot  control  agents,  such  as  pepper  spray  and  OC 
(oleoresin capsicum) but not those that are listed in the common military list. Human rights 
NGOs  engaged  in  the  review  exercise  indicate  that  these  riot  control  agents  currently  not 
covered  by  the  Regulation  are  frequently  used  to  facilitate  or  conduct  torture  and  other  ill 
treatment or internal repression. 

In the case of Annex IV goods, the Regulation lists certain chemicals/medicines intended to 
save and improve the lives and health of patients but which might be sought for use in lethal 
injection.  According  to  one  organisation  engaged  in  preventing  the  misuse  of  medicines  in 
lethal injections, the Regulation covers 2 of the 14 drugs currently listed on the US state and 
federal lethal injection protocols. Unlike the goods listed in Annexes II and III, those types of 
chemicals  and  medicines  fulfil  an  essential  lifesaving  function,  and  therefore  measures  that 
might  limit  their  trade  need  to  be  carefully  assessed  to  prevent  such  trade  in  legitimate 
lifesaving medical supplies from being negatively impacted. Of note in this regard is the self-
regulation  regime  adopted  by  several  EU  companies,  which  voluntarily  apply  various 
distribution protocols that are considered by various stakeholder groups to be preventing an 
inappropriate use of drugs exported from the EU.  

When  assessing  the  relevance  of  goods  and  services  covered,  consideration  could  also  be 
given to the introduction of a targeted end-use or catch-all clause to the Regulation. Human 
rights  NGOs  engaged  in  the  review  exercise  and  a  Member  State  authority  have  advocated 
the introduction of such a clause. In concrete terms, such a clause would allow individual EU 
Member States to halt a specific transfer of a certain item that is not specifically listed in the 
Regulation’s  Annexes  II  or  III.  Such  an  item  would  have  to  be  found  to  clearly  have  no 
practical use other than capital punishment, torture and other ill treatment. The clause could 
also cover cases where there is evidence that the potential transfer of the unlisted item would 
result in its use for such purposes.  

With regard to  the services included in  the scope of the Regulation,  i.e. brokering services, 
technical assistance, training and advertising related to the goods covered by the Regulation, 
the  assessment  has  not  found  any  indication  that  an  amendment  in  this  regard  would  be 
needed. To be noted however that the supply of technical assistance including training is only 
prohibited or controlled when it is directly for equipment covered by the Regulation (Annex 
II or Annex III).  

4.2.3 Relevance of adding intra-EU trade 

During  the  consultations  on  the  implementation  of  the  Regulation,  there  have  been 
suggestions to broaden the scope of the Regulation to cover the intra-EU trade of Annex II 
and Annex III goods as well as the import of Annex III goods to the EU. The Regulation was 
initially  responding  to  the  consideration  that  it  was  ‘appropriate  to  lay  down  Community 
rules on trade with  third countries in  goods which could  be used for the  purpose of capital 

42  Common  military  list  of  the  European  Union,  adopted  by  the  Council  on  17  February  2020  (equipment 
covered by Council Common Position 2008/944/CFSP defining common rules governing the control of exports 
of military technology and equipment) (CFSP) (2020/C 85/01), OJ, C 85-1, 13.3.2020. 

14 

 
 
                                                           
punishment  and  in  goods  which  could  be  used  for  the  purpose  of  torture  and  other  cruel, 
inhuman  or  degrading  treatment  or  punishment.’  This  emphasis  on  relations  with  third 
countries  was  clearly  specified  in  the  preamble,  which  states  that  ‘the  measures  of  this 
Regulation  are  intended  to  prevent  both  capital  punishment  and  torture  and  other  cruel, 
inhuman or degrading treatment or punishment in third countries. They comprise restrictions 
on  trade  with  non-EU  countries  in  goods  that  could  be  used  for  the  purpose  of  capital 
punishment or for the purpose of torture and other cruel, degrading or inhuman treatment or 
punishment. It is not considered necessary to establish similar controls on transactions within 
the  Community  as,  in  the  Member  States,  capital  punishment  does  not  exist  and  Member 
States will have adopted appropriate measures to outlaw and prevent torture and other cruel, 
inhuman or degrading treatment or punishment.’  

Two human rights NGOs with expert knowledge about the trade in goods that might be used 
for  torture  or  ill  treatment  have  advocated  that  the  scope  of  the  Regulation  should  be 
expanded  to  cover  the  import  to  the  EU  or  the  intra-EU  transfer  of  law  enforcement 
equipment  and  related  goods  that  have  legitimate  law  enforcement  purposes  but  can  be 
misused.  

The Regulation clearly focuses on restricting trade with third countries. Therefore regulating 
the  import  of  law  enforcement  equipment  to  the  EU  and  its  intra-EU  transfer  to  address 
alleged instances of torture and other cruel,  inhuman or degrading treatment  or punishment 
within the EU through the Regulation does not appear to be coherent with the Regulation’s 
stated objectives. Other tools and means related to the protection of human rights currently at 
the  disposal  of  the  European  Union  and  its  Member  States  can  be  considered  more 
appropriate in this regard.  

4.3  Efficiency  

4.3.1 Authorisations and refusals 

Drawing on the data presented in this report and the previous Commission Report on export 
authorisations  in  2017  and  201843  (see  Section  3.5),  it  is  worth  noting  that  there  is  a 
significant  number  of  Member  States  (15)  reporting  no  authorisations  over  the  three-year 
period.  Additionally,  some  Member  States  report  significantly  more  authorisations  than 
others do. 

The data presented also show a limited number of refusals of authorisations for goods (13 by 
4 Member States over the three-year period), with the services covered by the Regulation not 
being the subject of any authorisations (or refusals). Implementation is the responsibility of 
the competent authorities in the Member States. There is currently only limited information 
available on issues such as national risk assessment procedures and monitoring of the end-use 
of exported goods and services.  

From the information presented above, there appears to be a need for some form of European 
Union  guidance  or  on  best  practices  on  the  implementation  of  the  Regulation  (e.g.  with 
regard  to  the  definition  of  goods  covered,  risk  assessments,  refusals,  notifications  etc.)  and 
for more information by the competent authorities on how the Regulation is being applied in 
practice.  

43 COM/2019/445 final 

15 

 
 
 
                                                           
4.3.2 Reporting 

As  indicated  in  Section  3.3,  Article  26(3)  of  the  Regulation  sets  out  the  reporting 
requirements  of  competent  authorities.  Five  Member  States  confirmed  that  they  publish 
annual activity reports in line with Article 26(3) of the Regulation. To be noted that pursuant 
to  Article  26(3)  of  the  Regulation,  the  public  reports  'shall  not  include  information  the 
disclosure of which a Member State considers to be contrary to the essential interests of its 
security'. 

The  level  of  detail  included  in  those  annual  reports  may  not  always  allow  for  an  accurate 
assessment of the Regulation’s implementation at national level. Few Member States provide 
publicly available information on procedures for the risk of goods or on follow-up measures 
taken to monitor the end-use nor do they indicate the volume and value of related goods or 
whether penalties were applied for breaches of the Regulation. Similarly, on the notification 
and consultation mechanism of Article 23, limited information is available. 

Article 26(4) requires  the Commission  to  publish an annual  activity report.  One  report  was 
published in October 2019 for Member State export authorisations in 2017 and 2018, while a 
further report covering 2019 will be adopted in 2020. The reporting form for 2019 requests 
data  on  a  broader  range  of  issues.  Other  relevant  information  that  could  be  usefully 
incorporated  in  the  overall  annual  reporting  exercise  includes  information  on  identified 
infringements and the penalties applied. Also, to ensure greater transparency, further aspects 
such as the value and volume of exports could be included as well. 

4.4  Effectiveness 

The Regulation has met the specific objective of more effectively controlling EU trade with 
third countries in goods that could be used for capital punishment or torture and other cruel, 
degrading or inhuman treatment or punishment. According to a Member State authority, the 
Regulation has made it easier to intercept relevant goods while traders have been dissuaded 
from  trying  to  export  prohibited  goods  (as  is  evidenced  by  the  limited  extent  of  such  trade 
overall).  

However,  more  information  on  the  imposition  of  penalties  by  EU  Member  States  under 
Article 33 of the Regulation would be of interest in order to better assess the extent to which 
breaches of the Regulation are being identified and penalised. While the Commission has a 
nearly  complete  picture  of  the  national  legislation  in  place  in  EU Member  States  regarding 
penalties applicable to infringements, it does not have sufficient information as to whether the 
authorities have applied those penalties in particular instances of infringements. 

The  broader  goal  of  helping  to  prevent  capital  punishment  and  torture  and  other  cruel, 
inhuman or degrading treatment or punishment in third countries is more difficult to assess, 
as  there  are  many  other  contributing  factors.  The  restriction  of  trade  in  these  goods  and 
services  is  only  one  element  in  the  fight  against  torture.  Furthermore,  torture  and  other  ill 
treatment are not only reliant on sophisticated tools; often the most basic and easily available 
instruments,  e.g.  batons,  truncheons,  standard  handcuffs  and  excessive  physical  force  are 
used.  

4.5  Coherence and complementarity 

To  ensure  complementarity,  the  Regulation  makes  specific  reference  to  other  related  EU 
instruments or frameworks and expressly excludes the goods they cover from the scope of the 

16 

 
 
 
 
Regulation. The Regulation covers materials not listed in any other legal instrument and, in 
that  respect,  is  complementary  to  other  European  regulatory  frameworks.  The  Regulation 
avoids targeting goods related to other Regulations and for which an authorisation system is 
already in place, i.e.: 

i. 
ii. 
iii. 

firearms controlled by Regulation (EU) No 258/2012; 
dual-use items controlled by Regulation (EC) No 428/2009; 
goods  controlled  in  accordance  with  Common  Position  2008/944/CFSP  and  the 
associated common military list44. 

While  this  approach  to  ensuring  complementarity  between  export  control  instruments  has 
been largely successful, some inconsistencies have emerged. As indicated above, this is the 
case for riot control agents. Some, such as pepper spray and Oleoresin  Capsicum (OC), are 
included in the Regulation, while others listed in the common military list, such as common 
tear  gases (CS  gas, CR  gas  and CN  gas), are not,  even though these are  frequently used to 
facilitate  or  conduct  torture  and  other  ill  treatment.  It  would  be  appropriate  to  explore  how 
best to ensure that both instruments are more consistent, that licence approval processes are 
uniform and that denial notifications are circulated under both control regimes. 

Similarly, although the EU has established arms embargoes to explicitly respond to instances 
of  ‘internal  repression’  and  for  that  purpose  has  developed  a  list  of  equipment  used  for 
‘internal  repression’,  that  list  does  not  include  items  covered  by  the  Regulation.  The 
possibility of expressly including certain Annex III goods controlled by the Regulation within 
the  scope  of  embargoes  specifically  referencing  concerns  relating  to  ‘internal  repression’ 
could be explored. 

Regarding its broader EU human rights objective, the Regulation is largely coherent with and 
complementary to other relevant EU instruments and initiatives. There is, however, room for 
greater synergies between human rights monitoring work in third countries on the one hand, 
and controls on the end use of goods and services exported under the Regulation on the other.   

There has been a high degree of coherence and complementarity with initiatives on a global 
and  regional  level  (Alliance  for  Torture-Free  Trade,  Council  of  Europe).  Over  the  last  3 
years,  the  European  Union  (at  both  the  technical  and  diplomatic  levels)  has  been  at  the 
forefront  of  initiatives  to  raise  international  governmental  awareness  of  the  trade  in 
equipment used for torture, ill treatment and the death penalty. The EU has actively helped to 
develop  international  measures  to  combat  this  trade,  notably  through  its  support  for  the 
establishment of the Alliance for Torture-Free Trade. This work culminated in the Resolution 
‘Towards  torture-free  trade:  examining  the  feasibility,  scope  and  parameters  for  possible 
common international standards,’ which was adopted by the UNGA on 28 June 2019.  

On  a  regional  level,  the  Regulation  has  inspired  the  development  of  potential  Council  of 
Europe region-wide trade control measures in this area. 

4.6  EU added value 

EU  added  value  looks  for  changes  due  to  the  EU  intervention,  over  and  above  what  could 
reasonably have been expected from national actions by the Member States.  

44 See common military list of the European Union, adopted by the Council on 17 February 2020 (equipment 
covered by Council Common Position 2008/944/CFSP defining common rules governing the control of exports 
of military technology and equipment (CFSP) (2020/C 85/01), OJ, C 85-1, 13.3.2020. 

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Trade  is  an  area  of  exclusive  EU  competence  pursuant  to  Article  207  of  the  Treaty  on  the 
Functioning of the European Union. The Regulation’s EU added value is evident, given that 
the Regulation falls within an area where the EU has exclusive powers and that the objectives 
of the Regulation can therefore be best achieved at Union level.  

Although  the  Regulation  allows  Member  States  to  take  additional  measures,  the  measures 
provided for by the Regulation  can be considered broadly appropriate.  Five Member States 
have  adopted  or  maintained  additional  measures  pursuant  to  Article  10  and  14  of  the 
Regulation. 

4.7  Anti-Torture Coordination Group (ATCG) 

The  ATCG  has  its  legal  basis  in  the  Regulation  itself.  Chaired  by  the  Commission,  its 
composition  is  limited  to  one  representative  appointed  by  each  Member  State.  The  ATCG 
covers  a  specific,  but  limited,  set  of  tasks:  it  can  examine  questions  concerning  the 
Regulation’s application, including, the exchange of information on administrative practices. 
The  ATCG  can  consult,  on  an  ad  hoc  basis,  with  exporters,  brokers,  suppliers  of  technical 
assistance and other relevant stakeholders concerned by the Regulation. According to recital 
48 of the Regulation, the ATCG has a specific role in preparing delegated acts, as Member 
States  are  formally  consulted  through  the  ATCG  on  draft  delegated  acts  submitted  by  the 
Commission in accordance with the principles laid down in the Inter-institutional Agreement 
on Better Law-Making.  

In  light  of  the  findings  of  this  report  and  in  line  with  its  mandate,  the  ATCG  could,  for 
instance,  engage  in  more  in-depth  discussions  on  matters  such  as  possible  breaches  of  the 
Regulation, or potential cases of concern. The analysis of Member States’ implementation of 
Article  23  (notification  of  decisions  to  deny,  consultation  with  other  Member  States  and 
information provision measures) is also an important element that could feature in a regular 
manner in the work of the ATCG45.  

5.  CONCLUSIONS AND WAY FORWARD 

The  Regulation  was  adopted  to  create  a  European  Union  instrument  on  trade  with  third 
countries in goods and related services that could be used for capital punishment, torture and 
other  cruel,  inhuman  or  degrading  treatment  or  punishment.  It  has  been  instrumental  in 
promoting respect for human life and fundamental human rights.  

The Regulation fills an identified gap in EU human rights-based trade controls. It has made a 
positive  contribution  in  meeting  its  main  objective  of  taking  effective,  concrete  measures 
against  torture  and  other  cruel,  inhuman  or  degrading  treatment  or  punishment.  As  the 
world’s  first  legally  binding  regulatory  instrument  in  this  area,  it  has  also  served  as  an 
example  for  the  development  of  similar  trade  measures  by  third  countries  and 
international organisations.  

45 Article 23 requires States to alert the Commission and all other Member States of their decisions to deny or 
annul  authorisations  under  the  Regulation  for  the  export  or  transit  of  goods  or  the  provision  of  technical 
assistance  or  brokering  services.  It  also  requires  States  to  inform  and  consult  with  relevant  Member  States  if 
they are considering granting an ‘essentially identical’ transaction to one denied or annulled by another Member 
State. Finally, Article 23 requires any State granting authorisation for such ‘essentially identical’ transactions to 
inform the Commission and all Member States of its decision and the reasons. 

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The review has confirmed that, overall, the Regulation is being implemented satisfactorily 
and continues to be fit for purpose. It is deemed to be sufficiently robust, and a fully-fledged 
legislative  update  is  therefore  not  deemed  necessary  at  this  stage.  On  the  other  hand,  the 
review  has  shown 
in  support  of  a  more  effective 
implementation of certain provisions of the Regulation could be further explored. 

that  non-legislative  measures 

As  for  the  scope  of  goods  covered  by  the  Regulation,  it  should  respond  to  evolving 
technological  and  market  developments  and  take  account  of  changes  in  the  nature  of  the 
use,  and  misuse,  of  law  enforcement  equipment.  Inconsistencies  with  other  related  EU 
instruments (EU Council Common Position 2008/944/CFSP and arms embargos specifically 
instituted  to  address  instances  of  ‘internal  repression’)  could  also  be  further  examined. 
Balancing human rights considerations against the need to protect the trade of legitimate life-
saving  medical  supplies  when  assessing  the  opportunity  (or  not)  to  update  the  scope  of 
chemicals covered should also continue to be carefully assessed.  

To  help  Member  States  more  effectively  and  consistently/uniformly  implement  the 
Regulation  in  key  or  challenging  areas,  there  may  be  a  need  for  guidance  on  the  practical 
application of certain aspects of the Regulation, such as the definition of the goods listed in 
the annexes, trade fairs and exhibitions protocols, risk assessment, refusals, or notifications. 
Ways of more closely monitoring possible infringements of the Regulation and the end-use 
of exported goods should be further explored. There is also room for greater synergies, which 
could  be further explored, between human  rights monitoring work in  third countries on the 
one hand and controls on the end-use of goods and services exported under the Regulation on 
the other.  

The  need  for  greater  transparency  and  accountability  (notably  by  publishing  annual 
activity  reports)  is  also  recognised.  Furthermore,  the  review  highlights  the  need  for  more 
information sharing about how the Regulation is being implemented, notably as regards risk 
assessments  and  the  policy  on  licensing.  Additional  relevant  information  could  be  usefully 
incorporated in the annual reporting exercise, such as data on infringements and penalties. 

A  more  systematic  interaction  with  non-governmental  organisations,  international 
organisations  and  other  stakeholders  with  relevant  expertise  should  be  encouraged, 
including  through  the  submission  of  reports,  briefings  or  other  information  relating  to  the 
Regulation  and  its  implementation.  This  would  facilitate  a  more  robust  monitoring  and 
detection  of  instances  of  possible  breaches,  and  help  to  inform  national  risk  assessment 
procedures. 

In order to examine the issues highlighted and gather further evidence and expert opinions, 
the Commission proposes to establish a group of experts. Such group could include among 
other suitably qualified experts from relevant non-governmental organisations (namely those 
working  in  the  fields  of  human  rights  and  arms  control),  international  organizations, 
academia  and  industry.  The  group  would  provide  in  a  regular  manner  support  to  the 
Commission in exploring avenues to strengthen compliance and make the Regulation and its 
implementation more effective. Its function would be to provide broad expertise that would 
be  complementary  to  the  role  of  the  ATCG,  provide  the  substantive  input  to  drive  the 
discussion  on  policy  and  implementation  and  enable  all  stakeholders  involved  to  engage  in 
continuous dialogue.  

Furthermore,  non-legislative  measures  could  be  explored  to  deter  certain  inappropriate 
activities of EU nationals and EU-based companies operating abroad (such as promoting 
or  marketing  goods  and  services  and  providing  technical  assistance  and  training  for  an 
inappropriate or  abusive use of law enforcement equipment).  Such measures could  include, 

19 

 
 
for  instance,  measures  for  increased  transparency  and  awareness  raising  or  measures  to 
promote  effective  compliance  with  the  UN  Guiding  Principles  on  Business  and  Human 
Rights.  

20