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: 2020-11-04
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

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 4.11.2020  COM(2020) 692 final 2020/0313 (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  In 
accordance  with  Article  50,  the  Union  negotiated  with  the  United  Kingdom  an  agreement 
setting  out  the  arrangements  for  its  withdrawal,  taking  account  of  the  framework  for  our 
future  relationship  (‘Withdrawal  Agreement’)1.  According  to  the  terms  of  the  Withdrawal 
Agreement, the United Kingdom is no longer a Member State of the European Union since 31 
January 2020, and the Unions’ primary and secondary law will cease to apply to the United 
Kingdom, after the end of a transition phase on 31 December 2020.  

Council  Regulation  (EC)  No  428/2009  of  5  May  2009  (“the  Regulation”)  setting  up  a 
Community  regime  for  the  control  of  exports,  transfer,  brokering  and  transit  of  dual-use 
items2  creates  a  common  system  of  controls  for  export  of  dual-use  items,  in  line  with  the 
international commitments and obligations 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  take  the  form  of  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  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 
1  January  2021,  an  export  authorisation  issued  by  the  competent  national  authority  of  the 
is  established.  This  would  create  considerable 
Member  State  where 
administrative burden for competent authorities of the MS and for EU’s exporters, affecting 
their competitiveness.  

the  exporter 

Therefore,  in  order  to  mitigate  these  risks  and  the  impact  of  the  withdrawal  of  the  UK  the 
EU’s  competitiveness,  it  is  appropriate  to  add  the  United  Kingdoom  to  Annex  IIa  of  the 
Regulation  and  therefore  control  exports  to  the  UK  under  the  Union  General  Export 
Authorisation  EU001.  There  are  a  number  or  reasons  why  the  United  Kingdom  should  be 
added to the list of countries included in the EU001: 

 

1 

2 

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; 

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 ("Withdrawal Agreement"). 
OJ L 134, 29.5.2009, p. 1. 

EN 

1 

  EN 

                                                 
 
 
 

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.  

Therefore, adding the United Kingdom to the to the list of countries included in the EU001, 
will  not  negatively  affect  EU  and  international  security,  while  ensuring  a  uniform  and 
consistent  application  of  controls  throughout  the  EU  and  providing  a  level  playing  field  for 
EU exporters. 

• 

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 as well as consistent with how export of dual use items to other States (which 
are in a position comparable to that of the UK from the point of view of the objectives of the 
Regulation) is controlled under EU law. 

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 
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  the  Regulation  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.  

EN 

2 

  EN 

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  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.  

EN 

3 

  EN 

2020/0313 (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) 

3 

4 

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. In 
accordance  with  Article  50,  the  Union  negotiated  with  the  United  Kingdom  the 
Withdrawal  Agreement3.  According  to  the  terms  of  the  Withdrawal  Agreement’,  the 
United Kingdom is no longer a Member State of the European Union since 31 January 
2020,  and  the  Unions’  primary  and  secondary  law  will  cease  to  apply  to  and  in  the 
United Kingdom, after the end of a transition phase on 31 December 2020.  
Council  Regulation  (EC)  No  428/20094  sets  up  a  common  system  for  the  control  of 
exports of dual-use items in order to protect the 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 

The  United  Kingdom  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 Regulation (EC) No 428/2009. 

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). 
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). 

EN 

4 

  EN 

                                                 
 
 
(6) 

(7) 

(8) 

Adding  the  United  Kingdom  to  the  to  the  list  of  countries  included  in  the  EU001, 
should not negatively affect the security of the Union or international security. 

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 
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 withdrawal 
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, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

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

(1) 

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 and United States of America"; 

(2) 

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

"- United Kingdom (without prejudice to the application of this Regulation to and in 
the UK in respect of Northern Ireland in accordance with Annex 2, point 47, of the 
IE/NI Protocol, listing the provisions of Union law referred to in Article 5(4) of the 
Withdrawal Agreement)5".  

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.  

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 

5 

OJ C 66 I, 19.02.2019, p. 1.  

EN 

5 

  EN