The EU adopted Regulation (EC) No 428/20092 to provide a common system of export controls on dual-use goods – goods, software and technology normally used for civilian purposes that might have military applications or contribute to the proliferation of weapons of mass destruction – and to ensure compliance with the EU’s and Member States’ commitments under international export control regimes. These regimes include the Australia Group, the Missile Technology Control Regime, the Nuclear Suppliers Group, the Chemical Weapons Convention and, importantly in the context of the delegated Regulation, the Wassenaar Arrangement (the WA), which includes 41 States.
Regulation 428/2009 requires authorization from national authorities for the export, transit and brokering of dual-use goods listed in Annex I. However, the 'Union General Export Authorisation No EU001' in Annex IIa facilitates the export of most of such goods and technologies to seven 'friendly' countries: the United States, Australia, Canada, Japan, New Zealand, Norway, and Switzerland, including Liechtenstein. Regulation 428/2009 is not exclusive, in that Member States are allowed to introduce controls on exports of additional/non-listed dual-use items to non-EU destinations.
Until recently, changes to Annex I of Regulation 428/2009 had to be made through the EU’s ordinary legislative process, and as a result the list of items subject to export controls was severely out of date. The last update took place in 2012 and reflected changes decided under international export control regimes up to 2010. To address this situation, in April 2014 the European Parliament (the EP) and the Council of the European Union (the Council) delegated to the Commission the power to update Annex I by means of delegated Regulations, subject to the EP’s and Council’s right to object within a period of two months (subject to extension).
The delegated Regulation represents the Commission’s first use of the new procedure. Among other things, the delegated Regulation implements decisions taken by the WA at its plenary meeting in December 2013 to restrict the spread of technologies that can be used for mass surveillance, monitoring, tracking and interception.