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Padovan Launch Studies into EU's New Dual-Use Export Controls Regulation

Sep 22, 2021 – Milan, Italy

Milan, Sept 22 - Studio Legale Padovan launches a series of studies on innovations in the new EU regulation on #recast #dualuse.

On September 9, 2021 regulation (EU) 2021/821 has come into force. The regulation is often called recast ( 'Recast') of the EU system of export controls, brokering, of technical assistance, transit and transfer of dual-use items and definitively replaces Regulation (EC) no. 428/2009.

Padovan export control experts begin the series of in-depth analyzes on the most important innovations for companies, the first study of which is dedicated to technical assistance. The firm also launched weekly webinars on these topics.

Padovan Law Firm stands out on the Italian scene for providing, on an ongoing basis, a personalized legal consultancy activity on trade compliance.

Due to the current provisions on export control and international economic sanctions, commercial and banking operators today find themselves carrying out their business in a context of increasing complexity : this leads to either maximizing the problem, limiting access to the market. abroad, or to minimize it, thus incurring serious responsibilities, including criminal ones.

Dual-use trade controls

Dual-use items are goods, software and technology that can be used for both civilian and military applications. The EU controls the export, transit, brokering and technical assistance of dual-use items so that it can contribute to international peace and security and prevent the proliferation of Weapons of Mass Destruction (WMD).

The export controls take into account the EU and its Member States' international obligations, including:

  • UN Security Council Resolution 1540;
  • the Nuclear Non-Proliferation Treaty;
  • the Chemical Weapons Convention, and;
  • the Biological Weapons Convention.

PADOVAN STUDY no. 1 - The provision of technical assistance

In compliance with the clarification of the Lisbon Treaty on the point of competence of the European Union regarding the provision of technical assistance services involving cross-border movements, the new Regulation provided for an autonomous definition and discipline for technical assistance (in the previous Regulation only included in the definition of "technology" and without specific legislation).

The definition includes in technical assistance any support or technical service aimed at repair, development, manufacturing, assembly, testing, maintenance and which can take the form of instructions (e.g. manual), consultancy, training / training, transmission of knowledge or skills of operation or other consultancy services, also provided electronically as well as by telephone or any other form of verbal assistance.

The category of technical assistance suppliers has also been defined , which now includes any natural or legal person, or any consortium, which provides technical assistance services from the customs territory of the European Union to the territory of a third country, or those resident or established. in a Member State providing technical assistance within the territory of a third country or to a resident of a third country temporarily present in the customs territory of the Union.

Under art. 8 of the Recast, which is structured as a so called catch-all clause, an authorization must be obtained to provide technical assistance related to dual-use items listed in Annex I only if the supplier of technical assistance has been informed by the competent authority (or is aware) that the products in question are or may be intended, in whole or in part, for one of the uses referred to in Article 4 (1) (relating to the aforementioned catch-all clause ), which refers to related uses ( i ) the development, production, or dissemination of weapons of mass destruction (ie chemical, biological or nuclear), (ii ) for military purposes, if the acquiring or destination country is subject to an arms embargo and ( iii ) for use as parts or components of military products, exported from the territory of a Member State without or in violation of it.

Moreover, even in the cases potentially subjected to the authorization requirement, the new legislation provides for numerous cases of exemption from the authorization requirement , such as, for example, those relating to the provision of assistance to a country included in the AGEU001 (e.g. USA, Australia and, from 2021, the United Kingdom), or in the case of information in the public domain, basic scientific research or, again, where it falls within the definition of minimum quantity of technology (which does not change compared to the version previously in force).

On the other hand, it is possible for each Member State to make technical assistance related to dual-use items not listed in Annex 1 subject to authorization , if a supplier of technical assistance has reason to suspect that the products in question are or may be destined for one of the uses referred to in Article 4 (1) referred to above (i.e. one of the uses relating to the aforementioned catch-all clause , such as development / production of weapons of mass destruction).

Finally, we report the development of a model ad hoc instance on technical assistance, as well as the possibility, where they meet certain conditions (such as the adoption of a special Internal Compliance Program ), for recourse to Authorization General of the EU (AGEU) 007 , envisaged for intra-group transfers of technology - a definition which also includes the concept of technical assistance - and software, which will be the subject of further study in the next post dedicated to the new authorization.