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: 2022-10-31
Institutions: European Commission, Service for Foreign Policy Instruments
Subjects: cruel and degrading treatment, death penalty, dual-use good, exchange of information, export licence, import licence, international trade, third country, torture, trade restriction

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 31.10.2022  COM(2022) 568 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 (‘the Regulation’) concerning 
trade  in  certain  goods  which  could  be  used  for  capital  punishment,  torture  or  other  cruel, 
inhuman or degrading treatment or punishment1 requires the Commission to submit an annual 
report  to  the  European  Parliament  on  the  activities,  examinations  and  consultations  of  the 
Anti-Torture  Coordination  Group  (ATCG).  The  report  must  not  undermine  the  commercial 
interests of natural or legal persons. 

This report provides information on the ATCG’s activities in 2021. 

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 are inherently abusive and should not be traded at all (Annex II); and 
-  goods that can have legitimate uses, such as law enforcement equipment (Annex III) 

and goods for therapeutic use (Annex IV). 

Trade  in  goods  listed  in  Annex  III  and  Annex  IV  is  subject  to  certain  restrictions.  In 
particular, the Regulation: 

i. 

ii. 

prohibits  the  import  into,  export  from  and  transit  through  the  EU  of  goods  listed  in 
Annex  II,  which  have  no  practical  use  other  than  for  the  purposes  of  capital 
punishment or torture. It prohibits the provision of any technical assistance relating to 
such goods, including training in how to use them. It also prohibits advertising such 
goods  in  print  media,  on  the  internet  or  on  television  or  radio,  and  displaying  or 
offering them for sale at an exhibition or trade fair; 

requires  prior  authorisation,  case  by  case,  for  exports  of  goods  listed  in  Annex  III, 
which could be used for the purposes of capital punishment or torture, but may have 
other legitimate uses (e.g. for law enforcement). A prior export authorisation  is  also 
required  for  supplying  technical  assistance  or  brokering  services  relating  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 (EU) 2021/8213; or 
c)  goods subject to the terms of Council Common Position 2008/944/CFSP4; and 

1 OJ L 30, 31.1.2019, p. 1. Having been amended several times, Council Regulation (EC) No 1236/2005 of 27 
June 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  200,  30.7.2005,  p.  1)  was  subsequently  codified  as 
Regulation (EU) 2019/125. 
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). 
3 Regulation (EU)  2021/821  of 20 May  2021 setting up a Union regime  for the control of exports, brokering, 
technical assistance, transit and transfer of dual-use items (recast) (OJ L 206, 11.6.2021, p. 1). 

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iii. 

regulates trade in chemicals and pharmaceutical substances (Annex IV) that could be 
used  for  capital  punishment  (e.g.  through  lethal  injection).  A  specific  licence 
authorisation  (Union  general  export  authorisation  (GEA))  has  been  introduced  to 
control the export of such anaesthetic chemicals and prevent their transfer for use in 
lethal  injection executions, without limiting trade in  them  for medical,  veterinary  or 
other legitimate purposes. 

3.  Activities of the Anti-Torture Coordination Group 

The ATCG was set  up pursuant  to  Regulation (EU) 2016/2134  of the European Parliament 
and of the Council5 to examine questions concerning the application of the Regulation. 

The ATCG serves as  a  platform for Member State experts and the  Commission  services to 
exchange information  on administrative practices and discuss issues of interpretation  of the 
Regulation,  technical  issues  with  the  goods  listed,  developments  relating  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-Making6. 

The  ATCG  met  three  times  in  2021,  on  10  March,  10  June  and  24  November,  in  a  virtual 
format, to exchange information on a number of issues (summarised below) concerning the 
implementation of the Regulation. 

3.1 Developments relating to the basic act 

The Commission informed the ATCG of the report adopted on the use of delegation of power 
conferred  on  the  Commission  under  the  Regulation  (EU)  2019/1257.  Article  29(2)  of  the 
Regulation  provides  that  the  delegation  of  power  be  tacitly  extended  for  periods  of  an 
identical duration, unless the European Parliament or the Council opposes such extension not 
later than three months before the end of each period. The report proposed to prolong for a 
further  period  of  five  years  the  delegation  of  power  to  adopt  delegated  acts.  There  was  no 
opposition  to  such  extension.  The  extension  was  deemed  necessary  in  order  to,  inter  alia, 
respond  when  new  goods  are  developed  or  when  one  or  more  third  countries  meet  the 
requirements  for  the  application  of  the  Union  general  export  authorisation,  violate  an 
international commitment to abolish capital punishment for all crimes or when the details of 
the competent Member State authorities change. 

No delegated acts amending the Regulation were adopted in 2021. 

4 Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military 
technology and equipment (OJ L 335, 13.12.2008, p. 99). 
5 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). 
6 OJ L 123, 12.5.2016, p. 1. 
7 COM(2021) 75 final, 22.02.2021 

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3.2 Trade information: data reporting 

The Commission presented the state of play on the annual report referred to in Article 26(3). 
In particular, the 2020 data from all the authorities in the Member States as well as from the 
United Kingdom, constituting the basis for the preparation by the Commission of its annual 
report  to  the  European  Parliament  and  to  the  Council,  was  presented.  The  Commission 
furthermore provided information about the trade data in that report once it was adopted8.  

In  this  context,  the  Commission  drew  the  attention  of  the  ATCG  to  the  fact  that  it  is 
compulsory for competent authorities to notify when denials are issued by means of the Dual-
Use Electronic System (DUeS).  

3.3 Implementation issues related to Regulation (EU) 2019/125 

The  Commission  held,  on  request  of  one  Member  State,  an  exchange  of  views  on  use  of 
water cannons, and more generally on the use of other goods designed for riot control or self-
protection  by  law  enforcement  agents,  to  police  assemblies  and  demonstration,  which  is 
becoming  a  matter  of  increasing  concern.  The  ATCG  acknowledged  the  challenges 
concerning  water  cannons  as  their  use  could  be  diverted  from  firefighting  to  abusive  use 
against  protestors.  In  this  context,  the  need  to  be  particularly  vigilant  in  assessing  the 
potential risks in the country of export was noted. 

3.4 DUes update 

The  Commission  informed  the  ATCG  of  its  decision  on  United  Kingdom’s  access  to 
networks, information systems and data bases (on the basis of Article 13(5) of the Protocol on 
Ireland/Northern  Ireland)  and  its  annex  adopted  on  16  October  20209.  According  to  that 
decision,  the  United  Kingdom  is  granted  partial  access  (write  access  and  read  access)  to 
DUes.  This  access  is  considered  necessary  for  the  United  Kingdom  to  comply  with  its 
obligations under the Protocol on Ireland/Northern Ireland. The Commission hence informed 
of a new notification function in DUeS to support the correct implementation of Article 23(5) 
of the Regulation to allow the exchange of information between the United Kingdom and the 
Commission and between the United Kingdom and one Member State.  

The  Commission  furthermore  informed  the  ATCG  about  the  Second  Factor  Authentication 
for  DUeS  users,  operational  from  3  December  2021,  in  line  with  the  security  policy  of  the 
Commission for all information systems managing sensitive information.  

3.5 Commission’s informal group of experts 

The Commission informed the ATCG about the informal group of experts formed in line with 
the  conclusions  of  its  review  report10.  The  informal  group  brings  together  different 
perspectives  (e.g.,  advocacy,  law  enforcement,  research,  and  customs).  One  Member  State 
(Germany)  has  nominated  a  representative  to  the  informal  group.  The  informal  group  also 
includes  representatives  from  the  Council  of  Europe  and  the  UN  Office  of  the  High 
Commissioner  for  Human  Rights  (OHCHR).  Its  function  is  strictly  advisory  and 
complementary to the one provided by the Anti-Torture Coordination Group (ATCG). 

8 COM(2021) 632 final, 14.10.2021. 
9 C(2020) 7126 final, 16.10.2020. 
10 COM(2020) 343 final, 30.7.2020. 

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The informal group has been providing technical support in an advisory capacity on different 
aspects,  such  as  the  scope  of  banned  or  regulated  goods  towards  a  more  robust 
implementation of the Regulation. In this regard, the ATCG was debriefed about exchange of 
views on the trends and challenges concerning weapons and devices designed for the purpose 
of riot control or self-protection, policing assemblies and demonstrations. Certain riot control 
goods, currently not covered by the Regulation (such as common tear gases), are frequently 
used to facilitate or conduct internal repression. Adding standard batons and rubber bullets to 
the  list  of  controlled  goods  in  the  Regulation  was  raised.  The  use  of  acoustic  devices  or 
dazzling  laser  technology  in  crowd  control  situations  is  another  area,  which  was  raised  as 
worth examining.  

The informal group has been instrumental in enhancing awareness of the Regulation also by 
building bridges with the work of the United Nations Group of Governmental Experts (UN 
GGE), thereby providing an important link between the Regulation and international efforts 
to promote torture-free trade (see point 3.6 below). 

3.6 Torture-free trade — regional and international developments 

The  ATCG  served  as  a  platform  for  exchanging  information  and  raising  awareness  on 
regional and international developments in the field of Torture-free trade. 

The Commission updated the ATCG delegates on the steps that followed the United Nations 
Secretary-General’s report, ‘Towards torture-free trade: examining the feasibility, scope and 
parameters for possible common international standards’11, in particular on the establishment 
of  the  UN  Group  of  Governmental  Experts  (UN  GGE)  to  continue  work  on  basis  of  that 
report.  

After some delays  in  the nomination of the experts, the  UN GGE was formally  established 
with  two  experts  per  regional  UN  group  in  October  2021.  The  Commission  briefed  the 
ATCG  on  the  UN  consultation  process  with  UN  member  states,  civil  society  and  external 
experts, which would contribute the preparation of UN GGE report.  

Some EU Member States participated in the UN consultative process with the UNGGE. 

The UNGGE report, adopted on 30 May 2022, addressed the following topics: (i) feasibility 
of  common  international  standards;  (ii)  scope  of  goods  to  be  considered;  and  (iii)  draft 
parameters for a range of options to establish common international standards on the matter. 

11 Report of Secretary General A/74/969 of 28 July 2020. 

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