Dual-use items: European Commission updates the EU control list of dual-use items in Annex I to recast regulation

On October 20, 2021, the European Commission adopted the annual delegated regulation that updates the European dual-use export control list in Annex I to Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 setting up an EU regime for the control of exports, brokering, technical assistance, transit, and transfer of dual-use items (“Delegated Act,” more information here—the text of the regulation is accessible here).

According to the regulation, dual-use items—meaning items that can be used for both civilian and military purposes or can contribute to the proliferation of weapons of mass destruction—are subject to effective control when they are exported from or transit through the European Union or are delivered to a third-party country as a result of brokering services. Annex I to the Regulation establishes a common list of dual-use items subject to control in the European Union. It is worth noting that decisions on the items subject to control are made within the framework of international non-proliferation regimes and export control arrangements, namely the Australia Group, the Missile Technology Control Regime, the Nuclear Suppliers Group, the Wassenaar Arrangement, and the Chemical Weapons Convention.

The list of dual-use items set out in Annex I needs to stay current in order to ensure full compliance with international security obligations, guarantee transparency, maintain the European Union’s competitiveness, and facilitate references for export control authorities and economic operators. This requires updating and consolidating Annex I, with updated versions published at regular intervals. In this regard, Article 17 para. 1 of the regulation empowers the European Commission to adopt delegated acts in order to amend the list of dual-use items set out in Annex I. Moreover, Article 17 para. 1 further sets out that “[…] where the amendment of Annex I concerns dual-use items which are also listed in Annex II or IV, those Annexes shall be amended accordingly.

The current list of dual-use items was last updated by Commission Delegated Regulation (EU) 2020/17492 of October 7, 2020, amending Council Regulation (EC) No. 428/2009 setting up a European Community regime for the control of exports, transfer, brokering, and transit of dual-use items, reflecting the control list changes adopted by the international nonproliferation regimes and export control arrangements in 2019 and through the end of February 2020. The changes to the control lists adopted by the international non-proliferation regimes and export control arrangements until the end of 2020 now require further amendment of Annex I to the regulation.

The Delegated Act therefore presents a variety of amendments to the EU list of dual-use items concerning the control parameters, the technical definitions and descriptions, and the removal or addition of dual-use items. The amendments to the list of dual-use items in Annex I also necessitate consequential amendments to Annex IV.

Subject to the Council and the European Parliament raising no objections within a period of two months, the European Commission’s Delegated Act will be published and will enter into force on the day following its publication.

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