Dual use regulation
Dual-use goods, both civilian and military, are subject to strict controls in the Brussels-Capital Region, in accordance with European law.
- Definition: what is meant by dual-use items?
In Regulation (EC) No 428/2009, dual-use items and technologies are defined as being "items, including software and technology, which can be used for both civil and military purposes, and shall include 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 explosive devices". Military use refers not only to the so-called conventional weapons, but also to the non-conventional (Nuclear, Radiologic, Biologic and Chemical) weapons, more commonly known as N(R)BC weapons or “WMD – weapons of mass destruction”.
Historically, many countries have used technologies and expertise from their civil programs to develop a military program, either simultaneously or deferred.
Over the past decades, misappropriation of dual-use technologies has been witnessed mostly in the nuclear and ballistic fields.
Most industrialised countries have put in place measures on different levels to control the export of those goods.
- Regulation and goods categories
Within the European Union, the applicable rules are included in Opens in new windowRegulation (EC) No 428/2009, which classifies those items into 10 categories (numbered 0 through 9). These categories are listed in annex I to the Regulation in question.
This annex "implements internationally agreed dual-use controls including the Wassenaar Arrangement, the Missile Technology Control Regime (MTCR), the Nuclear Suppliers’ Group (NSG), the Australia Group and the Chemical Weapons Convention (CWC)”.
In practice, the checklists for each international regime are regularly revised. These lists of goods are the subject of Annex I, which is incorporated in the European regulations.
- Which items are involved?
Regulation (EC) No 428/2009 defines ten categories, numbered 0 through 9. The categories are as follows:
| Category | Goods and technologies involved |
|---|---|
| 0 | Nuclear materials, facilities and equipment |
| 1 | Special materials and related equipment |
| 2 | Materials Processing |
| 3 | Electronics |
| 4 | Computers |
| 5 | Telecommunications and "information security" Part 1: Telecommunications Part 2: "Information security" |
| 6 | Sensors and lasers |
| 7 | Navigation and avionics |
| 8 | Marine |
| 9 | Aerospace and Propulsion |
An export licence is required to export these goods outside of the European Union.
This list takes into account the technological evolutions. It undergoes regular updates. The most recent update was provided for in the Opens in new windowDelegated Regulation (EU) No 2019/2199. This list is regularly updated within the framework of the multilateral export control regimes (the Wassenaar Arrangement, the Australia Group, the Nuclear Suppliers’ Group (NSG), the Chemical Weapons Convention (CWC) and the Missile Technology Control Regime (MTCR).
Regulation (EC) No 428/2009 has been complemented by a number of Union General Export Authorisations (UGEAs), which authorise granting export licences for specific items and specific destinations. Those UGEAs are included in Opens in new windowRegulation (EU) No 1232/2011.
| The catch-all clause |
|---|
For certain items not referred to in the EU regulation, the Licence Cell may also impose an authorisation requirement. In fact, the regulation includes a catch-all clause, based upon the nature and end use of the items and the geopolitical situation in the destination country. The clause grants a margin of appreciation to the authority in charge of the authorisations. Concretely, this means that the Licence Cell can refuse a licence even if the intended transaction of the item is not specifically banned. This may occur when the technical specifications of the items intended for export are very similar to those of items that are indeed referred to, or when the final consignee does not offer sufficient non-proliferation guarantees. |
- Who should apply for a licence?
The notion of exporter is specified in article 2.3 of the Regulation. It is the person who has the power to decide to send the item out of the customs territory of the Community. In practice, it is the person holding the contract who must apply for the licence. With regard to the Brussels-Capital Region, this will be a natural person or a legal person (company) whose registered office (not an operational site) is in the Brussels-Capital Region.
- What are the possible types of licences?
For dual-use items and technologies, several types of licences exist:
Individual export licence (or authorisation): this is a licence granted to a particular exporter for export to an end user or consignee in a third country involving one or more dual-use items.
Global licence (or authorisation): this is a licence granted to a particular exporter for a certain type or category of dual-use items. It can be valid for export to one or more specific end user(s) and/or one or more specific third country/countries.
UGEA: Union General Export Authorisation (or licence): this is an export authorisation for certain destination countries and certain categories of items (cf. Regulation (EU) No 1232/2011). Six UGEAs (UGEA 001 ⇒ UGEA 006) have been provided. Obtaining this type of licence requires registration with the Licensing Office. This registration consists of specifying the contact data of the applicant company, the items intended for export and the end user of those items, as well as their use.
Licences for exporting nuclear items within the European Union: a licence is also required for intra-Community transfers of dual-use items included in the list provided by Annex IV to Regulation (EC) No 428/2009. The items listed in Part 2 of Annex IV are not covered by a general authorisation.
For licences regarding the export of nuclear items and technologies, it is important to note that depending on the nature of the items and technologies, a prior authorisation from the Advisory Committee on the Non-Proliferation of Nuclear Weapons, integrated into the Federal Public Service Economy, is sometimes required. If so, the Licence Cell will submit the application to the aforesaid committee. The Licence Cell thus acts as a single window on behalf of the licence applicants. |
- How long will a licence remain valid?
In general, licences are valid for one year. As for the UGEAs, these have an indefinite validity period. Individual and global licences can be renewed one time.
- Which forms should be submitted to obtain a licence?
Different forms are available, depending on the type of licence requested. The licence application is combined with an end-user certificate, which is a statement by which the end user declares not to use and/or re-export the items for the proliferation of weapons of mass destruction.
- Which movements require an authorisation?
Export, transfers, brokering and the transit of dual-use items. This means in fact that import into Belgium does not require any authorisation.