New EU export control rules for dual-use items
On 9 November 2020, the EU Council and EU Parliament reached an agreement on new rules for the control of exports, brokering, technical assistance, transit and transfer of dual-use items. The president of the EU Council, Peter Altmaier, noted that the agreement on the revised export control rules for dual-use items ensures that the EU will be better equipped to allow legitimate trade to be carried out smoothly while putting an emphasis on control of certain technologies, especially cyber-surveillance items, which can be misused in connection with human rights violations. According to Altmaier, the new rules will furthermore strengthen the EU’s common approach by providing for more ways in which the Member States can cooperate in the field of export control.
The EU’s current dual-use regulation has been in place since 2009. The revised regulation will therefore be better tuned to the rapidly changing technological, economic and political circumstances of today. The main new elements of the agreed regulation are the following:
- Stricter export controls on cyber-surveillance technology, in order to prevent human rights violations and security threats due to the potential misuse of such technology;
- An EU-level coordination mechanism which allows for greater exchange between Member States concerning the export of cyber-surveillance items;
- Two new general EU export authorisations for dual-use items: one for cryptographic items and one for certain intra-group technology transfers;
- Improved cooperation between licensing and customs authorities and mechanisms allowing Member States to strengthen their cooperation;
- A new provision on “transmissible controls”, allowing Member States to introduce export controls based on export control legislation of another Member State;
- Harmonisation at EU-level of rules applicable to certain services with regard to dual-use items that are currently regulated at national level, such as technical assistance services; and
- New reporting rules, which will create greater transparency on trade in dual-use items
The next step will be for Member States’ ambassadors to endorse the agreement. Subsequently, the EU Council and the EU Parliament will adopt the regulation. An informal version of the text of the future EU dual-use regulation is available via this link.
The EU Global Human Rights sanctions regime
On 7 December 2020, the EU established a Global Human Rights sanctions regime by adopting Council Regulation (EU) 2020/1998 and Council Decision (GFSP) 2020/1999. By means of this new sanctions regime, the EU, for the first time, is equipping itself with a legal framework which allows it to target individuals, entities and bodies responsible for, involved in or associated with serious human rights violations worldwide, no matter where they occurred. The targeted restrictive measures include, notably, a travel ban and the freezing of funds, the latter applicable to both individuals and entities.
The EU human rights sanctions regime comes after the adoption of the US “Magnitsky Act” of 2012 and its 2016 expansion, the “US Global Magnitsky Human Rights Accountability Act”. This was the first legal instrument worldwide establishing a sanctions regime for human rights violations. The Act is named after Sergei Magnitsky, a Russian lawyer who was detained in Russia after he accused public officials of corruption. He was mistreated in prison and died as a result of his injuries and lack of adequate care.
The Dutch government has been at the forefront of establishing a similar EU human rights sanctions regime, and we therefore expect that the Netherlands will also lead the way in enforcing this sanctions regime. The EU Regulation establishing the EU Global Human Rights sanctions regime is available via this link.
On 17 December 2020, the EU Commission published a guidance note on the implementation of certain provisions under the new EU Global Human Rights sanctions regime (available via this link). It seeks to ensure proper and uniform implementation of the new EU Global Human Rights sanctions regime. The guidance note advises on the implementation of the new sanctions and includes information about the scope of the financial restrictions, compliance obligations and the functioning of derogations.
 Council of the EU, “New rules on trade of dual-use items agreed” (9 November 2020). Link: <https://www.consilium.europa.eu/en/press/press-releases/2020/11/09/new-rules-on-trade-of-dual-use-items-agreed/?utm_source=dsms-auto&utm_medium=email&utm_campaign=New+rules+on+trade+of+dual-use+items+agreed>.
 Council of the EU, “EU adopts a global human rights sanctions regime”(7 December 2020). Link: <https://www.consilium.europa.eu/en/press/press-releases/2020/12/07/eu-adopts-a-global-human-rights-sanctions-regime/>.