Final compromise text of the new EU Export Control Regulation (RECAST DU Regulation 428/2009)

On 18 November 2020, the Council published an informal version of the final compromise text of the new EU Export Control Regulation (Recast of the Dual-Use Regulation 428/2009).
The way to the modernisation of EU export controls was a long process. Since the publication of the Green paper in 2011 (COM(2011) 393 final), almost ten years passed. In September 2016, the Commission transmitted its legislative proposal (COM(2016) 616 final) to the European parliament and the Council, which adopted their positions in January 2018 (TA/2018/6/P8) and June 2019 (ST 9923 2019 INIT), respectively.
Between October 2019 and November 2020, five informal trilogues took place. A compromise was reached during the final trilogue on 9 November, 2020.
Council’s position presents substantial differences with regard to the RECAST as proposed by the Commission and as successively amended by the European Parliament. The adoption and publication of the final joint text is scheduled in May 2021 and its entry into force ninety days later.

The main changes characterising the final compromise text are the following:

• Updating and introduction of new key concepts and definitions (e.g. exporter, re-export, technical assistance, supplier of technical assistance, transit, arms embargo, ICP, cyber-surveillance items, essentially identical transaction).

• EU autonomous mechanism to control the export of cyber-surveillance items for human right considerations (art. 4a), and publication of an “EU Watch List”.

• Enlarged scope of the catch-all provisions with the introduction the new art. 4a establishing human rights end-use controls on cyber-surveillance technologies, the art. 8a for emerging technologies, and with the extension of art. 8 catch-all clause to the prevention of act of terrorism.

• Coordination of national controls on non-listed items pursuant to art. 8a, submitting the export of non-listed items to authorisation if such authorisation is required on the basis of the national control list of another MS.

• Further harmonisation of certain services and measures (e.g. controls on the supply of technical assistance, application of catch-all provisions)

• Strengthened information-sharing and cooperation among national authorities (licensing, customs, enforcement, e.g. Enforcement Coordination Mechanism of art. 22), as well as with third countries, notably on outreach activities (see Chapter IX, art. 27).

• Greater transparency pursuant to art. 24, with an annual report by the Commission reporting information on authorisations (number and value by types of items and by destinations), denials, enforcement of controls (number of infringements and penalties).

• 2 new EU general export authorisation: EU007 on Intra-group export of software and technology, and EU008 on Encryption.

A more detailed view of the major updates is available in the attached document.