Regulation (EU) 2021/821 of the European Parliament and of the Council 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)

CHAPTER I

SUBJECT AND DEFINITIONS

Article 1

This Regulation establishes a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items.

Article 2

For the purposes of this Regulation, the following definitions apply:

(1) ‘dual-use items’ means items, including software and technology, which can be used for both civil and military purposes, and includes items which can be used for the design, development, production or use of nuclear, chemical or biological weapons or their means of delivery, including all items which can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices;

(2) ‘export’ means: (a) an export procedure within the meaning of Article 269 of the Union Customs Code; (b) a re-export within the meaning of Article 270 of the Union Customs Code; a re-export also occurs if, during a transit through the customs territory of the Union according to point (11) of this Article, an exit summary declaration has to be lodged because the final destination of the items has been changed; (c) an outward processing procedure within the meaning of Article 259 of the Union Customs Code; or (d) transmission of software or technology by electronic media, including by fax, telephone, electronic mail or any other electronic means to a destination outside the customs territory of the Union; it includes making available in an electronic form such software and technology to natural or legal persons or to partnerships outside the customs territory of the Union; it also includes the oral transmission of technology when the technology is described over a voice transmission medium;

(3) ‘exporter’ means: (a) any natural or legal person or any partnership that, at the time when the export declaration or the re-export declaration or an exit summary declaration is accepted, holds the contract with the consignee in the third country and has the power to determine the sending of the items out of the customs territory of the Union; where no export contract has been concluded or if the holder of the contract does not act on its own behalf, exporter means the person who has the power to determine the sending of the items out of the customs territory of the Union; or (b) any natural or legal person or any partnership that decides to transmit software or technology by electronic media, including by fax, telephone, electronic mail or by any other electronic means to a destination outside the customs territory of the Union or to make available in an electronic form such software and technology to natural or legal persons or to partnerships outside the customs territory of the Union. Where the benefit of a right to dispose of the dual-use item belongs to a person resident or established outside the customs territory of the Union pursuant to the contract on which the export is based, the exporter shall be considered to be the contracting party resident or established in the customs territory of the Union; (c) where point (a) or (b) is not applicable, any natural person carrying the dual-use items to be exported where these dual-use items are contained in the person’s personal baggage within the meaning of point (a) of Article 1(19) of Commission Delegated Regulation (EU) 2015/2446 (¹);

(4) ‘export declaration’ means an act whereby any natural or legal person or any partnership indicates, in the prescribed form and manner, the wish to place dual-use items specified in point (1) under an export procedure;

(5) ‘re-export declaration’ means an act within the meaning of Article 5(13) of the Union Customs Code;

(6) ‘exit summary declaration’ means an act within the meaning of Article 5(10) of the Union Customs Code;

(7) ‘brokering services’ means: (a) the negotiation or arrangement of transactions for the purchase, sale or supply of dual-use items from a third country to any other third country; or (b) the selling or buying of dual-use items that are located in third countries for their transfer to another third country. For the purposes of this Regulation, the sole provision of ancillary services is excluded from this definition. Ancillary services are transportation, financial services, insurance or re-insurance, or general advertising or promotion;

(8) ‘broker’ means any natural or legal person or any partnership that provides brokering services from the customs territory of the Union into the territory of a third country;

(9) ‘technical assistance’ means any technical support related to repairs, development, manufacture, assembly, testing, maintenance, or any other technical service, and may take forms such as instruction, advice, training, transmission of working knowledge or skills or consulting services, including by electronic means as well as by telephone or any other verbal forms of assistance;

(10) ‘provider of technical assistance’ means: (a) any natural or legal person or any partnership that provides technical assistance from the customs territory of the Union into the territory of a third country; (b) any natural or legal person or any partnership resident or established in a Member State that provides technical assistance within the territory of a third country; or (c) any natural or legal person or any partnership resident or established in a Member State that provides technical assistance to a resident of a third country temporarily present in the customs territory of the Union;

(11) ‘transit’ means a transport of non-Union dual-use items entering and passing through the customs territory of the Union with a destination outside the customs territory of the Union where those items: (a) are placed under an external transit procedure according to Article 226 of the Union Customs Code and only pass through the customs territory of the Union; (b) are trans-shipped within, or directly re-exported from, a free zone; (c) are in temporary storage and are directly re-exported from a temporary storage facility; or (d) were brought into the customs territory of the Union on the same vessel or aircraft that will take them out of that territory without unloading;

(12) ‘individual export authorisation’ means an authorisation granted to one specific exporter for one end-user or consignee in a third country and covering one or more dual-use items;

(13) ‘global export authorisation’ means an authorisation granted to one specific exporter in respect of a type or category of dual-use items which may be valid for exports to one or more specified end-users and/or in one or more specified third countries;

(14) ‘large project authorisation’ means an individual export authorisation or a global export authorisation granted to one specific exporter, in respect of a type or category of dual-use items which may be valid for exports to one or more specified end-users in one or more specified third countries for the purpose of a specified large-scale project;

(15) ‘Union general export authorisation’ means an export authorisation for exports to certain countries of destination that is available to all exporters who respect the conditions and requirements listed in Sections A to H of Annex II;

(16) ‘national general export authorisation’ means an export authorisation defined by national legislation in accordance with Article 12(6) and Section C of Annex III;

(17) ‘customs territory of the Union’ means the customs territory of the Union within the meaning of Article 4 of the Union Customs Code;

(18) ‘non-Union dual-use items’ means items that have the status of non-Union goods within the meaning of Article 5(24) of the Union Customs Code;

(19) ‘arms embargo’ means an arms embargo imposed by a decision or a common position adopted by the Council or a decision of the Organisation for Security and Cooperation in Europe (OSCE) or an arms embargo imposed by a binding resolution of the Security Council of the United Nations;

(20) ‘cyber-surveillance items’ means dual-use items specially designed to enable the covert surveillance of natural persons by monitoring, extracting, collecting or analysing data from information and telecommunication systems;

(21) ‘internal compliance programme’ or ‘ICP’ means ongoing effective, appropriate and proportionate policies and procedures adopted by exporters to facilitate compliance with the provisions and objectives of this Regulation and with the terms and conditions of the authorisations implemented under this Regulation, including, inter alia, due diligence measures assessing risks related to the export of the items to end-users and end-uses;

(22) ‘essentially identical transaction’ means a transaction concerning items with essentially identical parameters or technical characteristics and involving the same end-user or consignee as another transaction.

CHAPTER II

SCOPE

Article 3

Article 4

An authorisation shall be required for the export of dual-use items not listed in Annex I if the exporter has been informed by the competent authority that the items in question are or may be intended, in their entirety or in part:

(a) for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons;

(b) for a military end-use if the purchasing country or country of destination is subject to an arms embargo; for the purposes of this point, ‘military end-use’ means: (i) incorporation into military items listed in the military list of Member States; (ii) use of production, test or analytical equipment and components therefor, for the development, production or maintenance of military items listed in the military list of Member States; or (iii) use of any unfinished products in a plant for the production of military items listed in the military list of Member States;

(c) for use as parts or components of military items listed in the national military list that have been exported from the territory of a Member State without authorisation or in violation of an authorisation prescribed by the national legislation of that Member State.

Article 5

Article 6

Article 7

The competent authority may impose the authorisation requirement on the natural or legal person or the partnership that holds the contract with the consignee in the third country and has the power to determine the sending of the items passing through the customs territory of the Union.

If the natural or legal person or the partnership is not resident or established in the customs territory of the Union, the competent authority may impose the authorisation requirement on:

(a) the declarant within the meaning of Article 5(15) of the Union Customs Code;

(b) the carrier within the meaning of Article 5(40) of the Union Customs Code; or

(c) the natural person carrying the dual-use items in transit where those dual-use items are contained in the personal baggage of that person.

Article 8

Paragraphs 1 and 2 shall not apply if the technical assistance:

(a) is provided within or into the territory of a country listed in Part 2 of Section A of Annex II, or towards a resident of a country listed in Part 2 of Section A of Annex II;

(b) takes the form of transferring information that is in the public domain or basic scientific research within the meaning of the General Technology Note or of the Nuclear Technology Note set out in Annex I;

(c) is provided by authorities or agencies of a Member State in the context of their official tasks;

(d) is provided for the armed forces of a Member State on the basis of the tasks assigned to them;

(e) is provided for a purpose which is cited in the exceptions for items of the Missile Technology Control Regime (MTCR technology) in Annex IV; or

(f) is the minimum necessary for the installation, operation, maintenance (checking) or repair of those items for which an export authorisation has been issued.

Article 9

Article 10

Article 11

A Member State may impose an authorisation requirement for the transfer of other dual-use items from its territory to another Member State in cases where at the time of transfer:

(a) the operator or the competent authority knows that the final destination of the items concerned is outside the customs territory of the Union;

(b) the export of those items to that final destination is subject to an authorisation requirement pursuant to Article 3, 4, 5, 9 or 10 in the Member State from which the items are to be transferred, and such export directly from its territory is not authorised by a general authorisation or a global authorisation; and

(c) no processing or working as defined in Article 60(2) of the Union Customs Code is to be performed on the items in the Member State to which they are to be transferred.

CHAPTER III

EXPORT AUTHORISATION AND AUTHORISATION FOR BROKERING SERVICES AND TECHNICAL ASSISTANCE

Article 12

The following types of authorisations for export may be issued or are established under this Regulation:

(a) individual export authorisations;

(b) global export authorisations;

(c) national general export authorisations;

(d) Union general export authorisations for exports of certain items to certain destinations under specific conditions and requirements for use as set out in Sections A to H of Annex II.

Authorisations issued or established under this Regulation shall be valid throughout the customs territory of the Union.

Without prejudice to point (3) of Article 2, where the exporter is not resident or established on the customs territory of the Union, individual export authorisations shall be granted under this Regulation by the competent authority of the Member State where the dual-use items are located.

All individual and global export authorisations shall be issued, whenever possible, by electronic means on forms containing at least all the elements of and in the order provided for in the models set out in Section A of Annex III.

Large project authorisations shall be valid for a duration to be determined by the competent authority, but no longer than four years, except in duly justified circumstances based on the duration of the project.

Individual export authorisations shall be subject to an end-use statement. The competent authority may exempt certain applications from the obligation of providing an end-use statement. Global export authorisations may be subject to an end-use statement if appropriate.

Exporters using global export authorisations shall implement an ICP, unless the competent authority considers it unnecessary due to other information it has taken into account when processing the application for a global export authorisation submitted by the exporter.

Reporting and ICP requirements relating to the use of global export authorisations shall be defined by Member States.

At the request of exporters, global export authorisations that contain quantitative limitations shall be split.

National general export authorisations shall:

(a) exclude from their scope items listed in Section I of Annex II;

(b) be defined by national law or practice; they may be used by all exporters, resident or established in the Member State that issues those authorisations, if they meet the requirements set in this Regulation and in the complementary national legislation; they shall be issued in accordance with the indications set out in Section C of Annex III;

(c) not be used if the exporter has been informed by the competent authority that the items in question are or may be intended, in their entirety or in part, for any of the uses referred to in Article 4(1), or if the exporter is aware that the items are intended for such uses.

National general export authorisations may also apply to items and destinations listed in Sections A to H of Annex II.

Member States shall notify the Commission immediately of any national general export authorisations issued or modified. The Commission shall publish such notifications in the C series of the Official Journal of the European Union.

The competent authorities of the Member States shall exchange information on exporters which are prohibited from using a Union general export authorisation, unless the competent authority of the Member State where the exporter is resident or established determines that the exporter will not attempt to export dual-use items through another Member State. The exchange of information shall be carried out using the electronic system referred to in Article 23(6).

Article 13

Authorisations for technical assistance shall clearly identify the end-user and the exact location of the end-user.

The authorisations shall be valid throughout the customs territory of the Union.

Article 14

If no objections are received within 10 working days, the Member States consulted shall be regarded as having no objection.

In exceptional cases, any Member State consulted may request the extension of that 10-day period. However, the extension shall not exceed 30 working days.

Article 15

In deciding whether or not to grant an authorisation or to prohibit a transit under this Regulation, the Member States shall take into account all relevant considerations, including:

(a) Union and Member States’ international obligations and commitments, in particular the obligations and commitments they have each accepted as members of the relevant international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties;

(b) their obligations under sanctions imposed by a decision or a common position adopted by the Council or by a decision of the OSCE or by a binding resolution of the Security Council of the United Nations;

(c) considerations of national foreign and security policy, including those covered by Common Position 2008/944/CFSP;

(d) considerations about intended end-use and the risk of diversion.

Article 16

The competent authorities of the Member States consulted shall make known within 10 working days whether or not they consider the transaction in question to be an essentially identical transaction. If no reaction has been received within 10 working days, the competent authorities of the Member States consulted shall be regarded as not considering the transaction in question to be an essentially identical transaction.

If more information is required to correctly evaluate the transaction in question, the competent authorities of the Member States concerned shall agree on the extension of that 10-day period. However, the extension shall not exceed 30 working days.