REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT on the activities and consultations of the Anti-Torture Coordination Group referred to in Article 31 of Regulation (EU) 2019/125 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment
Date: 2020-12-14
Institutions: European Commission, Service for Foreign Policy Instruments
Subjects: EU Member State, activity report, cruel and degrading treatment, death penalty, exchange of information, export restriction, human rights, international trade, third country, torture

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  EN 

   EUROPEAN COMMISSION  Brussels, 14.12.2020  COM(2020) 803 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT         on the activities and consultations of the Anti-Torture Coordination Group referred to in Article 31 of Regulation (EU) 2019/125 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment  
 
 
1.  Introduction 

Article  31(4)  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) (the Regulation) requires the Commission to submit an 
annual report to the European Parliament on the activities, examinations and consultations of 
the  Anti-Torture  Coordination  Group.  The  report  must  not  undermine  the  commercial 
interests of natural or legal persons. 

This report provides information on the activities of the Anti-Torture Coordination Group in 
2019. 

2.  Regulatory framework 

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  countries outside the EU, on 
the other, by restricting trade in certain goods. It distinguishes between goods that: 

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are inherently abusive and should not be traded at all (Annex II), or  
can have legitimate uses, such as law enforcement equipment (Annex III) or goods for 
therapeutic use (Annex IV).  

Trade in such goods is subject to certain restrictions. 

This  is  why  the  Regulation  restricts  trade  with  non-EU  countries.  In  particular,  it  does  the 
following: 

i. 

It prohibits the import into, export from and transit 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  how  to  use  them,  is  also  prohibited.  The  advertising  of  such 
goods in print media or on the Internet or advertising time on television or radio, or 
the display or offer for sale in an exhibition or fair, are also prohibited. 

ii.  Goods listed in Annex III that could be used for the purposes of capital punishment or 
torture, but that may also have other legitimate uses (law enforcement), are subject to 
a  prior  export  authorisation,  on  a  case-by-case  basis.  A  prior  export  authorisation  is 
also  required  for  supplying  technical  assistance  or  brokering  services  related  to  this 
category of goods. Annex III does not include: (a) firearms subject to Regulation (EU) 
No  258/20122;  (b)  dual-use  items  subject  to  Regulation  (EC)  No  428/20093;  (c) 
goods subject to the terms of Common Position 2008/944/CFSP4. 

1 The Regulation concerning trade in certain goods which could be used for capital punishment, torture or other 
cruel, inhuman or degrading treatment or punishment was adopted on 30.7.2005 (Regulation (EC) 1236/2005). 
It  has  been  amended  several  times,  most  recently  by  Regulation  (EU)  2016/2134  of  23.11.2016,  and 
subsequently codified as Regulation (EU) 2019/125 of 16.1.2019 (OJ L 30, 31.1.2019, p. 1). 
2  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  an  export  authorisation,  and  import  and  transit  measures  for  firearms,  their  parts  and 
components and ammunition, OJ L 94, 30.3.2012, p. 1. 

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iii. 

It  regulates  trade  in  goods  –  chemicals  or  pharmaceutical  substances  (Annex  IV)  – 
that could be used for capital punishment (e.g. products that could be used to execute 
people  by  lethal  injection).  A  specific  licence  authorisation  (EU  General  Export 
Authorisation) has been introduced to control the export of such anaesthetic chemicals 
and prevent their transfer for use in lethal injection executions, without limiting their 
trade for medical, veterinary or other legitimate purposes.  

The  lists  of  prohibited  and  controlled  goods  are  set  out  in  Annexes  II,  III  and  IV  to  the 
Regulation. 

3.  Activities of the Anti-Torture Coordination Group 

The  Anti-Torture  Coordination  Group  (ATCG)  was  set  up  pursuant  to  Regulation  (EU) 
2016/2134 of the European Parliament and of the Council, to examine questions concerning 
the application of the Regulation. 

The ATCG serves as a platform for Member State experts and the Commission to exchange 
information on administrative practices and discuss issues of interpretation of the Regulation, 
technical issues with the goods listed, developments related to the Regulation, and any other 
matters that may arise.  The Commission also consults the ATCG when preparing delegated 
acts,  in  accordance  with  the  Interinstitutional  Agreement  of  13  April  2016  on  Better  Law-
Making (5). 

The  ATCG  held  two  meetings  in  2019,  on  29  April  and  17  December,  to  exchange 
information  on  a  number  of  issues  summarised  below  concerning  the  Regulation’s 
implementation. 

3.1. Developments related to the basic act 

The ATCG was informed of developments related to the basic act, namely the codification of 
Regulation (EC) No 1236/2005 in Regulation (EU) 2019/125 of the European Parliament and 
of  the  Council  of  16  January  2019.  The  original  Regulation  (EC)  No  1236/2005  had  been 
substantially amended several times between 2005 and 2018. For clarity and legal certainty, it 
had  been  codified.  The  codified  Regulation  repealed  Regulation  (EC)  No  1236/2005  and 
consolidated all its amendments, but did not amend the lists of controlled goods. 

The  Commision  also  informed  the  ATCG  of,  and  subsequently  consulted  it  on,  a  draft 
delegated act amending: (i) the list of competent authorities (listed in Annex I) and (ii) the list 
of destinations to which the Union General Export Authorisation (Annex V) applies (adding 
The Gambia and Madagascar). The approach so far has been to include a non-EU country in 
Annex V if it has ratified a relevant international agreement with a commitment to abolishing 
the death penalty for all crimes. For countries that are not member s of the Council of Europe, 
that  means  the  country  in  question  must  have  ratified  the  Second  Optional  Protocol  to  the 

3  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. 
4 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, 13.3.2020, p. 1–37 . 
5 OJ L 123, 12.5.2016, p. 1. 

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International  Covenant  on  Civil  and  Political  Rights  (ICCPR)  without  reservation  (6).  The 
Gambia  has  ratified  the  Second  Optional  Protocol  to  the  ICCPR  without  reservation.  The 
same goes for Madagascar and the countries added previously to the list in 20177. 

3.2. Trade information: data reporting 

The Commission reviewed with the members of the ATCG the status of the submissions from 
EU  Member  States,  received  and  outstanding,  for  the  preceding  years  (2017  and  2018),  in 
order  to  prepare  the  Commission’s  annual  report  in  accordance  with  Article  31(4)  of 
Regulation (EU) No 2019/125. The Commission has stressed the need for all Member States 
to report, even if no export authorisation was granted or denied. 

In the broader context of the reporting process, the Commission with the ATCG looked into 
extending it to matters such as (i) information on authorisations concerning the brokering of 
services and technical assistance and (ii) information on the use of the Union General Export 
Authorisation. The ATCG also discussed the possibility of including the end-user in regular 
reporting. One national competent authority expressed the view that such information should 
be provided to the Commission on request only, in line with Article 26(2). 

On the basis of the above, the Commission informed the ATCG of its intention to update the 
reporting form in order to incorporate a broader range of data, in preparation for the reporting 
exercise for 2019. 

3.3. Review of Regulation (EU) No 2019/125  

The Commission informed the ATCG of the process of reviewing the Regulation as set out in 
Article 32. In accordance with the Better Regulation guidelines, the Commission published a 
roadmap in July 2019 outlining the scope of the exercise, the consultation modalities, and the 
involvement of stakeholders, as well as a tentative timeline. It also informed the ATCG that, 
as  part  of  the  review  (and  in  line  with  Article  32  of  the  Regulation),  it  was  seeking 
information  about  specific  parts  of  the  Regulation:  penalties  referred  to  in  Article  33,  and 
additional national measures referred to in Articles 10 and 14.  

The  Commission  invited  the  ATCG  to  take  part  in  the  review  process  by  relaying  to  it 
Member States’ views, comments, suggestions and information on best practices – as well as 
on  loopholes  –  that  they  may  have  identified  in  their  day-to-day  implementation  of  the 
Regulation.  Suggestions  were  made  to  put  together  guidance  on  risk  assessment,  or  put  a 
system in place for an exchange of views, in an appropriate format, on export destinations.  

The ATCG was also invited to raise awareness of the public consultation and get input from 
other parts of their administrations, as appropriate. 

6  Article  2  of  the  Second  Optional  Protocol  to  the  ICCPR  states  that  a  country  can  make,  at  the  time  of 
ratification  or  accession,  a  reservation  that  provides  for  the  application  of  the  death  penalty  in  time  of  war 
(pursuant to a conviction for a most serious crime of a military nature committed during wartime). 
7 Regulation (EC) 2018/181 of 18 October 2017, adding the Dominican Republic, Sao Tome and Principe and 
Togo. 

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3.4. Alliance for Torture-Free Trade 

The Commission provided an update on the state of play regarding the Alliance for Torture-
Free  Trade,  notably  the  adoption  on  28  June  2019  of  the  UN  General  Assembly  resolution 
‘Towards  torture-free  trade:  examining  the  feasibility,  scope  and  parameters  for  possible 
common international standards’.8 The resolution laid the foundations for the UN’s work in 
this area in the future. The Commission has shown its commitment to making trade torture-
free by supporting the work of the Office of the UN High Commissioner for Human Rights in 
following up on the resolution’s implementation. 

8  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. 

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