Proposed Revisions to EU Dual-Use Export Control Regime Include More Human Rights Considerations, Surveillance Tech Controls

Stakeholders are split on how much consideration should be given to human rights violations when determining export controls, the report said. The technology industry is “particularly concerned that it might lose out” to competitors outside the EU, the report said, as the EU considers introducing human rights as a “normative justification” for controls. The human rights considerations would be introduced along with an “autonomous” EU list for cyber-surveillance technology, which would impose restrictions on goods not yet subject to multilateral control, the report said.

Although the EU has a “record” of invoking human rights as grounds for restricting exports, the revisions would still mark a “significant change.” Controls would consider “human rights 'not as a marginal consideration, but as one of the key normative grounds for controlling the export of sensitive items,’” the report said. The revisions would expand the EU’s catch-all provision and require exporters to obtain a license for exports of dual-use items that are not included in the control list but “destined” for people associated with human rights abuses. The obligation to discover whether the items will be shipped to a human rights violator would be “shared by both the competent authorities and the exporter,” the report said. In addition, in determining whether to grant an export license to an importer in a specific country, Britain authorities must take into account that country’s human rights record, the report said.

Industry has expressed fears that this could lead to a “greater administrative burden for operators and authorities” at both the national and EU levels. “This could imply several additional licensing procedures,” the report said, “owing in particular to the lack of experience in implementing these provisions.” The potential revisions have also been criticized because they may “give rise to distortions of competition at global level” as the EU cannot guarantee that countries such as China or the U.S. would introduce similar controls.

In another action, the revisions would expand the definition of dual-use items to include cyber-surveillance technologies, the report said. The changes would also introduce an autonomous list of those technologies that are subject to control and propose a ”new category” of controlled items within cyber-surveillance technologies, the report said: monitoring centres and data retention systems or devices. Germany is the only EU member that subjects those technologies to export controls, the report said.

Although some industries are concerned that increased scrutiny on exports to detect potential human rights violations may increase administrative burdens, the EU’s proposal seeks to harmonize the licensing process “with the aim of reducing the administrative burden,” the report said. This new EU “licensing architect” proposes the introduction of “new EU general export authorisations (EUGEA) for encryption, low value shipments and intra-company transmissions of software and technology and for 'other dual-use items' on an ad-hoc, as-needed basis.” The new authorizations attempt to harmonize definitions of several “key concepts,” including “exporter”, “export” and “broker,” according to the report. The proposal would also introduce a one-time export license for large projects whereby “one license covers export operations related to one project,” the report said.