A common European export policy for defence and dual-use items?

A common European export policy for defence and dual-use items?
national licenses continued to exist. The Commission therefore recommended a) to make the
standard model for individual licenses mandatory; b) to harmonize the forms of national
licenses; c) to introduce a harmonized Community license for exports to allied and friendly
countries listed in Annex II; and d) to require all member states to offer the possibility of
global licenses.
Implementation of the catch-all clause—which subjects non-listed dual-use goods to a license
requirement if there is a proliferation risk associated with their export—created problems as
well. Since the clause was an innovation for most member states, practical application
differed widely from country to country. According to the Commission, the main problem
was the different degree to which governments inform their exporters about sensitive endusers.
This diversity raised questions of distortion of competition and put the effective
enforcement of the catch-all clause in doubt. The Commission therefore recommended that
member states ‘improve significantly their information-sharing on sensitive end-users with a
view to ensuring that a similar degree of guidance is given to exporters throughout the
Community.’ 10 Finally, the Commission criticized certain practices of the administrative
cooperation and stipulated greater liberalization of intra-Community transfers.
I.3 The 2000 control regime
The regime established in June 2000 is an updated version of its 1995 predecessor, and thus
not completely new. Modifications are based both on the ECJ’s case law and the Commission’s
review.
First, the regime is now no longer an ‘integrated system,’ but is based solely on an EC act.
The Regulation (EC) 1334/2000 includes all Annexes (which are organized differently
compared to those in the former Regulation) and is effective without any cross-references to
the Council Decision 2000/402/CFSP.
Second, Regulation 1334/2000 is more comprehensive and detailed in its definitions than its
predecessor. Whereas the former Regulation covered only dual-use ‘goods,’ the new Regulation
is on ‘dual-use items, including software and technology […] and all goods which can be
used for both non-explosive uses and assisting in any way in the manufacture of nuclear
weapons or other nuclear devices.’ The narrow definition in Regulation 3381/94 was due to
the fact that the EC’s commercial policy only covers goods but not services. It soon became
clear, however, that technology transfer could not be limited to physical transfer and that the
revolution in electronic information transmission had to be taken into account. Accordingly,
the new Regulation defines export as ‘transmission of software or technology by electronic
media, fax or telephone to a destination outside the Community’ (Article 2.2).
Third, the catch-all-clause has been extended and specified. The 1995 version only obliged an
exporter to ask for an export authorization if he was informed by his authorities that the goods
in question ‘are or may be intended, in their entirety or in part, for use in connection with’
weapons of mass destruction and ‘missiles capable of delivering such weapons, as covered by
the corresponding non-proliferation arrangements’ (Article 4). The new Regulation takes on
this provision (dropping the reference to the non-proliferation arrangements) and adds, in
Article 4.2, that an authorization is also required for non-listed dual-use items, if (a) the
10 Report to the European Parliament and the Council on the application of regulation (EC) 3381/94 setting up a
Community system of export controls regarding dual-use goods, Com (98) 258, Brussels, May 1998, p. 10.
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