At the plenary session of October 23, The European Parliament has adopted its position on the Commission proposal to amend Regulation (EC) 428/2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items.
If the European Parliament decision is mostly favourable to the Commission proposal to introduce delegated acts for updating the annexes, it has also used its right to amend other provisions of the Regulation. Therefore, it has adopted amending proposals to articles 4 (catch-all) and 8 (public security and human rights considerations).
The debate on the catch-all definition has been already initiated in September by Italy when it has adopted measures based on article 8 to control export of items linked to the monitoring/control of Internet. Following a similar reasoning, the European Parliament has proposed to include a new paragraph to article 4 extending the possibility for Member States authorities to required an authorisation for non listed dual use if the exporter has been informed by its authorities or by the Commission that the items in question are or may be intended, in their entirety or in part, for use in connection with a violation of human rights, democratic principles or freedom of speech as defined by the Charter of Fundamental Rights of the European Union, by using interception technologies and digital data transfer devices for monitoring mobile phones and text messages and targeted surveillance of internet use (e.g. via monitoring centres or lawful interception gateways).
This proposal extends indirectly the definition of dual use items to include items that are not directly or indirectly related to WMD or conventional weapons, as dual-use term has been mostly understood by Member States. Nevertheless, this extension does not seem to be necessarily in contradiction with the definition of article 2, which includes items that have both military and civil purposes.
We could wonder if the 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 would not be a more appropriate instrument to control such items.
It is also interesting to note that the Parliament increased the role of the Commission by allowing it to inform exporters of the need of an authorisation. In other words, the Commission is granted a role in the implementation of the dual-use Regulation, which has been until now strictly in the hand of Member States. The question remains on “how” this will be practically be made possible.
The European Parliament also amended paragraph 6 of article 4 dedicated to the exchange of catch-all information between Member States by adding at the end the words “and impose the same authorisation requirement. This proposal will constraint all EU Member States to apply a similar catch-all to one notified. If, in principle, this proposal appears to be necessary to counter the risk that similar items will be exported through another Member State, it will be politically and technically difficult to implement. Presently some catch-all clauses are optional (4.5) and therefore not necessary implemented by all Member States. Moreover, the catch-all procedure used by Member States are not coordinated. For some Member States a catch all notification consists in the notification of prohibition to export and for other it is an authorisation requirement, which will not be necessary denied.
The European Parliament proposed also to amend article 8, which allows Member States to prohibit or impose an authorisation requirement on the export of dual-use items not listed in Annex I for reasons of public security or human rights considerations. The proposal consists to substitute the word « may » by « shall ». If the wording appears more constraining, it is not clear how it will change the way that Member States implement this provision.
Finally, on dedicated acts, the European Parliament amendments consist essentially in extending the information to the Parliament and amending the scope of the delegation by adding for the update of annexes the terms as well as in conformity with any restrictive measure adopted based on Article 215 TFEU or constraining the removing of Annex II destination only when such destinations become subject to an arms embargo as referred to in Article 4(2).