David Santorum at German high-tech industry association Spectaris updates on new EU dual-use regulation for export control, legislation that will affect companies exporting goods for civilian and military purposes, surveillance cameras being one likely candidate
On 28 September 2016, the European Commission presented a proposal for a new EU dual-use regulation, which is meant to replace the regulation from 2009 on the community regime for the control of exports, transfer, brokering and transit of dual-use items. This provision is the most significant legislative text on European export control and absolutely all European companies need to pay attention to it that manage goods or technologies that may be used for civilian as well as military purposes, i.e. dual-use items.
The most outstanding novelty of this legal proposal is probably the new ‘human security approach’. According to the explanatory memorandum, the European Commission is committed to pursuing a value-based trade policy. To do justice to this goal, the Commission introduced the concept of ‘human security approach’ to the regulation’s proposal. This new value approach is noticeable at various points. For example, the definition of dual-use items has been redefined, new catch-all controls added, and the due diligence obligations of the economic operators and the test criteria of the competent national authorities have been expanded.
The definition of dual-use items is expanded to include cyber-surveillance technology, which can be used for the commission of serious violations of human rights or international humanitarian law. The reason for this expansion lies in the events that took place during the Arab Spring. When the unrest occurred the authoritarian regimes used cyber-surveillance technology to locate and eliminate their opponents. Later it became known that this technology also had European origin. With this new legislative proposal the Commission wants to prevent such abuse in the future.
The question must be raised as to whether the pursued goal can actually be reached by expanding this definition. In practice, situations often arise in which one cannot determine beforehand whether the technology will be used for civilian purposes or misused to violate human rights. A clear example of this is surveillance cameras. The footage taken by these devices are per se legitimate. However, these surveillance cameras may be seized by authoritarian regimes and used to track down and arrest government critics or opposition members.
Special attention must be given to the new catch-all controls. In the current EC dual-use regulation, the catch-all clause only applies if non-listed goods could be used in terms of ABC weaponry, missile/carrier technology or other defence technologies, and a weapons embargo has been imposed on the final destination country. The new regulation proposal distances itself from this approach and introduces two new catch-all rules: a human rights catch-all rule and a terrorism catch-all rule.
The human rights catch-all rule describes ‘serious violations of human rights or the international humanitarian law’. While the term ‘international humanitarian law’ – for example, based on the Geneva Convention – can be delimited, the general reference to human rights is quite imprecise and will lead to ambiguities in practice, as a clear and uniform-codified legal source is missing. It is unclear whether the regulation proposal refers to the Declaration of Human Rights of the United Nations, the European Convention on Human Rights, the EU Charter of Fundamental Rights or the single state’s fundamental and human rights. But even if the term ‘human rights’ is specified, the inclusion of this catch-all clause would remain highly problematic. The question remains how and on what basis of which information a company is meant to judge what behaviour poses a serious violation of human rights. This assessment can only be made by a responsible state institution.
The matter of the terrorism catch-all clause is similar. Although the regulation’s proposal refers to a definition of ‘terrorist act’, it does not make it easier for a company to determine whether a product could possibly be misused for terrorist purposes. Here too, an indication or reference by a state authority is indispensable.
The increased compliance obligation that is imposed on the exporter is especially alarming. The legal proposal stipulates that the exporter, ‘under his obligation to exercise due diligence’, must notify the competent authority if his goods are fully or partially intended for offences such as human rights violations or terrorist activities.
This stipulation deviates from the current requirement of positive knowledge and introduces a new notion of diligence. It is unclear how companies are to implement this due diligence notion, which business processes need to be newly implemented accordingly and, above all, the extent of the companies’ obligation to acquire information is not specified either. This has the effect that the compliance effort within the company will increase significantly. At the same time, one can assume that the work volume of the responsible national authorities will have to expand in parallel, as numerous companies will apply for negative certificates to hedge their bets.
The ‘human security approach’ makes it clear that the Commission is moving away from traditional goals in export control. Hitherto, the export control pursued two main goals: preventing the proliferation of weapons of mass destruction (non-proliferation) and the unchecked distribution of conventional arms. This proposal shows that the intent is for companies to also take on additional responsibility in the area of protection of human rights and counter-terrorism. This socio-politically important and commendable goal puts additional strain on companies and it will not be possible for them to adequately implement these. Both the protection of human rights and counter-terrorism measures are classic tasks in the core area of political action. This shall not be transferred to the area of responsibilities of commercial companies without automatically endangering the competitiveness through additional administration and lacking predictability and reliability for international partners. Instead, companies rather depend on receiving clear indications by the responsible state bodies on sensitive products, as well as critical target countries, persons and institutions.
The proposal for a new EU dual-use regulation clearly shows many deficiencies. Over the next months the European Parliament and the Council will have to remove these shortcomings in order to adopt a new dual-use regulation, which in practice can also be implemented by the companies in a realistic manner.
David Santorum is a project manager for foreign trade and export promotion at Spectaris, a German high-tech industry association representing medical technology, optical technologies, and analytical, biological, laboratory, and ophthalmic devices.