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What Businesses Need to Know: Regulation (EU) 2021/821 on Dual-Use Items

Regulation (EU) 2021/821 establishes comprehensive rules across the European Union (EU) to control the export, brokering, technical assistance, transit, and transfer of dual-use items—goods and technologies that can be used for both civilian and military applications. Watch the below video (30 min) and read the article to be fully debriefed.

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I Background and Implementation

Regulation (EU) 2021/821 has been in effect since September 9, 2021. It modernizes the previous export control system to address evolving security risks and emerging technologies, expanding cooperation between Member States and the Commission. The regulation aligns the EU system with international commitments from groups like the Australia Group, the Missile Technology Control Regime, the Nuclear Suppliers Group, and the Wassenaar Arrangement.

II Key Terms

  • Brokering: Negotiating transactions between non-EU countries for selling or buying dual-use items.

  • Dual-Use Items: Items usable for both civilian and military purposes, including software and technology.

  • Exporter: Any individual or entity exporting dual-use items, whether physically, electronically, or personally.

III What changes compared to the previous law?

In a nutshell:

A system upgrade

  • The new Regulation represents a comprehensive “system upgrade” virtually all provisions of the Regulation are amended to enhance the efficiency and/or the effectiveness of controls.

Updates definitions and control parameter

  •  This includes updated definitions and control parameters, harmonization, simplification and digitalization of licensing, enhanced information-sharing, and cooperation with third countries. The “system upgrade” also introduces new rules on transparency, enforcement, industry outreach and an EU training programme.

  • Key definitions are updated e.g. “export/re-export”, exporter, transit etc

  •  New definitions are introduced e.g. “supplier of technical assistance”, “cyber-surveillance items”, “internal compliance programme”, “essentially identical transaction” etc

  •  Key control parameters are clarified e.g. concerning the application of controls with respect to natural persons (incl. researchers), the determination of the competent authority, the compliance requirements for companies etc

  • Assessment criteria are clarified, e.g. with respect to terrorism (Art. 8).

Autonomous controls at EU level

  • The new Regulation introduces a basis for EU autonomous controls allowing the EU to make its own decisions regarding human rights controls on cyber-surveillance technologies, and for coordination of national controls on emerging technologies.

The “human security” dimension

  • There is, for the first time, an EU mechanism for human rights end-use controls on cyber-surveillance exports (Art. 2.21, Art. 4a).

  • The mechanism follows a “bottom-up” approach, reflecting Member States’ decisions to control non-listed cyber-surveillance items for human rights considerations

  • The mechanism provides for the introduction of controls through a mandatory and

  • prescriptive consultation procedure, resulting in the publication of an “EU Watch List” of

  • items and destinations subject to control

  • The mechanism is supported by due diligence requirements for exporters. EU Guidelines will be developed.

  •  The new Regulation also provides for coordination of national controls on

  • emerging technologies (Art. 8a) and their publication in the Official Journal

IV Key Points of the Eu Dual Use Regulation

  1. Controlled Dual-Use Items: Annex I of the regulation lists dual-use items that require export authorization. This list, based on internationally agreed controls, is periodically updated. Categories include:

  • Nuclear materials, facilities, and equipment

  • Special materials and related equipment

  • Materials processing

  • Electronics

  • Computers

  • Telecommunications and information security

  • Sensors and lasers

  • Navigation and avionics

  • Marine

  • Aerospace and propulsion systems

  1. Export Authorization Requirements:

  • Dual-use items and related brokering services or technical assistance need export authorization if they are intended for:

  • Chemical, biological, or nuclear weapons

  • Military use in countries under an arms embargo

  • Components of military items exported without necessary authorization

  • Export of cybersurveillance items likely to be used for internal repression or human rights violations requires authorization.

  • Transfer of dual-use items listed in Annex IV, such as stealth technology, within the EU also requires authorization.

  1. Member States' Discretion:

  • Member States can prohibit the transit of non-EU dual-use items if their use would violate the regulation.

  • They may require export authorization for items not listed in Annex I for public security or human rights reasons.

  • They can demand export authorization for the transfer of dual-use items within the EU under certain circumstances.

  1. Types of Export Authorizations:

  • EU General Export Authorizations: For certain destinations (e.g., Australia, Canada, Japan, the USA) under specific conditions.

  • National General Export Authorizations: Issued by Member States, consistent with EU authorizations, excluding certain countries.

  • Individual and Global Authorizations: Issued by national authorities for up to 2 years for one exporter to export one or more items to specific end-users (individual) or multiple items and countries (global).

  • Large Project Authorizations: For specific exporters for large-scale projects involving multiple items and end-users.

  1. Exporter Obligations:

  • Exporters must provide comprehensive information on the end-user, country of destination, and end-use of the exported items.

  • They must keep detailed records for 5 years, including descriptions, quantities, and commercial documents.

  • Authorization requests for brokering services and technical assistance must include details on the dual-use items, third parties, destination, and end-user.

  1. Member State Responsibilities:

  • Member States must inform the European Commission about national authorities, measures taken, and ensure efficient enforcement.

  • They must collaborate with the Commission to establish direct cooperation and information exchange.

  • They are required to report to the Commission for its annual implementation report.

  1. Commission Responsibilities:

  • Develop a secure system for cooperation and information exchange.

  • Issue guidelines and best-practice recommendations.

  • Submit annual implementation reports.

  • Amend the list of controlled items and destinations via delegated acts.

  • Conduct evaluations on cybersurveillance authorizations and the regulation's overall impact.

  1. Dual-Use Coordination Group:

  • Chaired by the Commission with representatives from each Member State.

  • Examines issues arising from the legislation.

  • Consults with exporters, brokers, and other stakeholders.

  • Promotes global convergence on dual-use export controls through information exchange and best practices.

Main Document

  • 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) (OJ L 206, 11.6.2021, pp. 1–461).

  • Successive amendments to Regulation (EU) 2021/821 have been incorporated into the original text. This consolidated version is of documentary value only.

Related Documents

  • Communication from the Commission to the Council and the European Parliament – The review of export control policy: ensuring security and competitiveness in a changing world (COM(2014) 244 final, 24.4.2014).

  • Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (recast) (OJ L 134, 29.5.2009, pp. 1–269).

More Information

For further details, refer to the consolidated version of Regulation (EU) 2021/821 and related documents. You can also schedule a call with us.

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