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)

ANNEX

TABLE OF CONTENTS

GLOSSARY

This glossary explains or defines recurring terms used in these guidelines. The items marked with * refer to definitions from the EU dual-use Regulation (EU) 2021/821 and Regulation (EC) No 223/2009 (¹). The descriptions of items without * should not be understood as legally binding definitions.

INTRODUCTION  (²)

With the adoption of Regulation (EU) 2021/821 (hereafter ‘the Regulation’), the EU demonstrates its commitment to maintaining robust legal requirements with regard to dual-use items, as well as to strengthening the exchange of relevant information and greater transparency. The Regulation provides for the first time that the publication of an EU annual report on the implementation of controls should include relevant information on the licensing and enforcement of controls under the Regulation, with due respect to the need to ensure the protection of the confidentiality of certain data, in particular where the transmission or publication of licensing data could affect defence, foreign policy or national security concerns or jeopardise the protection of personal and commercial sensitive information (Article 26).

Since 2013, the DUCG has developed, on a voluntary basis, a licensing data collection mechanism and supported the preparation of an annual report to the European Parliament and the Council that includes EU aggregated licensing data and other export control related information. The data collection took place on annual basis and the mechanism was progressively expanded in an effort to capture data relating to various types of authorisations and concerning the administration, implementation and enforcement of controls. It was based on a questionnaire developed in the DUCG.

These guidelines describe the new methodology for the collection and publication of data that the annual report needs to include. The methodology is to be applied by Member States’ licensing authorities (herein after also referred to also as ‘competent authorities’) – in cooperation with other authorities (such as customs) where appropriate – and the Commission for the purpose of preparing the EU annual report on dual-use export control (³), which covers all EU activities in the dual-use export control area.

The criteria for defining the methodology for data collection and for the preparation of the annual report in accordance to Article 26(2) of the Regulation shall take into account in particular the need to reduce administrative burdens and costs. Therefore, the methodology does not go beyond what is necessary in order to achieve the objectives of the Regulation, whilst ensuring an effective exchange of relevant information.

The present guidelines were prepared by a technical expert group composed by representatives of Member States’ export control authorities (⁴) and chaired by the European Commission DG TRADE. The guidelines also take into consideration the results of the stakeholder consultation conducted by the European Commission DG TRADE between 24 January and 28 February 2023  (⁵).

These guidelines are made available for the preparation of the EU annual report concerning dual-use licensing data and apply to 2022 licensing data and onwards. In consideration of the current state of implementation of the new Dual Use Regulation, these guidelines on the methodology may be further updated and improved as needed in the future.

1.   Relevant legal provisions

Article 26(2) para. 2 specifies the information that the EU annual report needs to include in general. The first sentence sets the baseline for reporting on authorisations, denials and prohibitions: ‘the annual report shall include information on authorisations (in particular number and value by types of items and by destinations at Union and Member State levels), denials and prohibitions under this Regulation. The annual report shall also include information on the administration (in particular staffing, compliance and outreach activities, dedicated licensing or classification tools), and enforcement of controls (in particular the number of infringements and penalties)’.

The wording ‘by types of items and by destinations’ in Article 26(2) para. 2 between brackets has to be read as requiring to report authorisations by destinations and, separately, by types of items. This interpretation is considered consistent with the need to protect sensitive information under Article 26(3) and the need to avoid the risk of undercutting restrictive licensing decisions in the Union (⁶).

‘ Information on authorisations ’ refers to licences for dual-use exports issued/granted by the Member States under the EU Dual Use Regulation or national laws.

With regards to denials and prohibitions, relevant figures will be reported at EU level, since the wording ‘number and value by types of items and by destinations at Union and Member State levels’ is absent in the relevant part of Article 26(2).

With regards to cyber surveillance items, the third paragraph of Article 26(2) provides that ‘the annual report shall include dedicated information on authorisations, in particular on the number of applications received by item, the issuing Member State and the destinations concerned by those applications, and on the decisions taken on those applications’.

Therefore, the annual report will feature a specific section on cyber surveillance items. It will include the number of applications received by Member States as well as the list of all destinations concerned by those applications and the Member States concerned. The wording ‘decisions taken on those applications’ is interpreted as either authorisation or denial/prohibition, and this information will be expressed as EU total figure for all the relevant cyber-surveillance items.

2.   Implementation

The Commission will aim at publishing the annual report mentioned in Article 26 of the Regulation in the first semester of the following year (reference year +1), depending on the actual availability and completeness of national data and other relevant factors.

The complete and correct transmission of data from Member States to the Commission will therefore have to be completed at the latest on 30 April every year (⁷).

The Commission services will review the data transmitted by the competent authorities and will prepare the annual report in consultation with the DUCG.

3.   Data collection

Under the provisions of the Dual Use Regulation, Member States will be required to submit to the Commission information on authorisations for the preparation of the annual report.

The present data collection methodology should remain sustainable over time, allowing for Member States to provide relevant information to the Commission in an efficient and cost-effective manner, that is statistically sound and with due consideration to the protection of personal information, commercially sensitive information or protected defence, foreign policy or national security information. The methodology should also require minimum need for revisions, bearing in mind the regular annual updates of Annex I to the Regulation. This methodology – including the collected data – shall not be used of any other purpose than the preparation of the EU annual report in accordance to Article 26 of the Regulation.

4.   Data on dual-use items which are not classified as cyber-surveillance items according to Article 2(20) of the Regulation

4.1.    Types of items

The classification of dual-use items in Annex I is very detailed – with over 1 800 entries, following the complete alpha-numerical classification. That is the underlying rationale that led the EU legislators to group the entries in Annex I in ‘types of items’ (Article 26(2) para. 1) for the purpose of the EU annual report.

While some of the items are easily identifiable final products – e.g. nuclear reactor (ECCN 0A001) many others are smaller parts and components of other products e.g. valves, pumps, special materials, components for integrated circuits, etc. In order to allow for the required level of transparency of public reporting while ensuring efficient and sustainable data collection over time, it was decided that the baseline for the determination of the types of items will build on the classification of dual-use items at 5-digit level while ensuring that the determination of ‘types of items’ supports the provision of meaningful information from a security, policy and trade perspective.

Annex A to the present guidelines therefore describes the list of ‘types of items’ to be used for the collection of licensing data and the preparation of the EU annual report.

Authorisations will be broken down by type of item and by relevant destinations in line with the requirements of the Regulation whilst considering the nature, purpose and characteristics of the different types of authorisations, as well as the varying practices in Member States for granting authorisations and collecting data. It is therefore necessary to adapt the relevant data collection and submission by the Member States to the Commission according to the specificities of the different types of authorisations and national practices.

This methodology also acknowledges that authorisations may refer to multiple items falling within multiple types of item.

The reference year will be the year when the authorisation was issued.

4.2.    Information on authorisations

4.2.1.   Individual authorisations

Individual Export Authorisations, Brokering Authorisations, Technical Assistance Authorisations, Transit Authorisations, Intra-EU Transfer Authorisations, Authorisations under a national control measure and Authorisations for non-listed items will be all considered individual licences for the purpose of this methodology. Member States shall provide licensing data to the Commission accordingly.

4.2.2.   Global Export Authorisations

Mindful of the nature, purpose and characteristics of each type of authorisation, this methodology acknowledges that global export authorisations most often contain estimated or open-ended export values and are granted either for one or multiple items and a single destination or for one or multiple items for multiple destinations. As such, global authorisations lessen the administrative burden of competent authorities and exporters for similar and/or frequent transactions. In order to safeguard non-proliferation objectives, exporters are required to draft and submit an internal compliance programme in order to qualify for a global license. Because the Regulation leaves the concrete configuration of global authorisations to the Member States, different practices across Member States also apply. To the purpose of providing meaningful information to the public, while taking into account different national practices and the rationale of global export authorisations – as explained further above – Global Export Authorisations require to adapt the relevant data collection and reporting, in accordance to the tables below, as this is considered most representative and useful for public reporting. Member States will provide relevant licensing data to the Commission accordingly.

4.2.3.   National and Union General Authorisations

Mindful of the nature of each type of authorisations this methodology takes into consideration that:

It is therefore considered appropriate to adapt the relevant data collection and reporting methodology and Member States will provide relevant licensing data to the Commission accordingly.

The annual report by the Commission will refer to the latest publication of the EU GEAs as well as to the National General Export Authorisations as an annex of the annual report.

5.   Additional data for the EU annual report

5.1.    Overview of authorisations by their corresponding type (of licence)

While this is not mandatory under the applicable legal provisions, it is considered useful that Member States additionally submit data on a voluntary basis on the number and value of authorisations by types of licence.

5.2.    Registered users of National and EU General Export Authorisations

In order to provide information on exporters’ notifications in accordance to the Regulation (⁸), it is considered appropriate that Member States communicate information on a voluntary basis on the number of exporters that have notified or are registered with the competent authority to use Union or National general authorisations.

5.3.    Data on the use of General and Global Export Authorisations

In light of the fact that Global Export Authorisations, Union and National General Export Authorisations are the legal basis for a high portion of the overall EU export for dual-use items, it is considered useful that Member States provide additional data on the use of such authorisations, when available.

For reasons of consistency the report by the Commission will reflect accordingly that data on authorisations is not synonymous with data that represents the use of authorisations.

This methodology takes into consideration that

6.   Denials and prohibitions

Article 26 of the Regulation states that the EU annual report shall include information on denials and prohibition. The Regulation does not indicate that relevant data should be reported by number, value, destination at Union and Member States level. It is however considered appropriate to report the number of denials and prohibitions at EU level as well as their total value for statistical purposes, as in the current annual reporting practice.

While the value of denials is not required by the Regulation, it is considered useful that Member States communicate this data on a voluntary basis for the purpose of preparing the annual report.

7.   Data on dual-use items classified as cyber surveillance items according to Article 2(20) of the Regulation

The definition of Article 2(20) for cyber-surveillance items comprises those listed in Annex I as well as non-listed items.

Annex B describes the items listed in Annex I to the Regulation which are considered to fulfil the definition of Article 2(20). The decision as to whether a specific non-listed item meets the requirements of the legal definition must be taken on a case-by-case basis by the Member States.

Applications and authorisations for non-listed cyber surveillance items have also to included in the annual report, based on data provided by the Member States.

Applications and authorisations for other listed items can be included in the report, based on the decision of the relevant competent authority.

Member States will provide to the Commission relevant licensing data accordingly.

8.   Information on administration and enforcement

In order to comply with the transparency requirements set by the Regulation, Member States will communicate to the Commission information on:

9.   Preparation of the EU annual report on dual-use export controls

The Commission will prepare the annual report based on data made available by Member States according to the methodology described in these guidelines. The report will make use of data visualisation tools and charts to ensure comparability over time.

Tables below provide examples of data tables that will be used for the preparation of the annual report.

9.1.    EU annual report on authorisations

9.1.1.   Individual authorisations

Table 1

Publication in the annual EU report of individual authorisations (number and value) by types of items

Example

Table 2

Publication in the annual EU-report of individual authorisations (number and value) by destinations.

Example

Article 26 of the Regulation does not indicate that the annual report should include a breakdown of authorisations by their type. It is however considered useful and appropriate to report this information, based on data provided by Member States on a voluntary basis.

9.1.2.   Global Export Authorisations

Publicaton of data concerning global export authorisations (destinations and types of items) (¹²)

Example

Table 3

Destinations

Table 4

Type of items

Table 5

Value of Global Export Authorisations  (¹³)

9.1.3.   National General Export Authorisations

Table 6

Destinations

Example

Table 7

Type of items

Example

Table 8

Value of National General Export Authorisations  (¹⁶)

Example

Table 9

Publication in the annual EU-report of authorisations (number and value) by types of licences

Example

9.1.4.   Use of Global, Union and National General Export Authorisations (²⁶)

Table 10

Use of EUGEAs by exporters

First use notifications –Example

Table 11

Total number of exporters using EUGEAs

Example

Table 12

Use of National General Export Authorisations by exporters

Example

Table 13

Additional data  (²⁹) : detail by type of items

Example

Table 14

Additional data  (³¹) : detail by destinations

Example

9.1.5.   Denials and prohibitions (Annex A)

Table 15

Data published in the EU annual report concerning denials and prohibitions

Example

The EU annual report will also indicate the relative percentage of denied transactions on the total EU dual-use authorisation value in the reference year.

9.1.6.   Cybersurveillance items

Table 16

Publication in the EU annual report of data concerning applications for cyber-surveillance items (Annex B)

Example

Table 17

Publication in the EU annual report of data on authorisations, denials and prohibitions for cyber-surveillance items (Annex B)

Example

10.   Information on the administration and enforcement of controls

The EU annual report will include the following information.

10.1.    Administration of controls

Number of staff (full-time equivalent) directly involved in the administration of controls in the EU: xx

Use of export control tools:

Number of outreach events organised in the referenced year: yy

Hyperlinks to national reports, as available.

10.2.    Enforcement of controls

Number of compliance audits conducted: xx Including those conducted by customs or other agencies.

Number of infringements reported: yy

Number of administrative and criminal penalties/fines imposed: xx By any relevant national enforcement agency, in case of infringement of export control regulations.

ANNEX A

Types of items according to Article 26(2) para. 2 Regulation (EU) 2021/821 (not including cybersurveillance items)

CATEGORY 0 – NUCLEAR MATERIALS, FACILITIES AND EQUIPMENT

CATEGORY 1 – SPECIAL MATERIALS AND RELATED EQUIPMENT

CATEGORY 2 – MATERIALS PROCESSING

CATEGORY 3 – ELECTRONICS

CATEGORY 4 – COMPUTERS

CATEGORY 5 – TELECOMMUNICATIONS AND INFORMATION SECURITY

CATEGORY 6 – SENSORS AND LASERS

CATEGORY 7 – NAVIGATION AND AVIONICS

CATEGORY 8 – MARINE

CATEGORY 9 – AEROSPACE AND PROPULSION

NON-LISTED ITEMS

ANNEX B

Cyber-surveillance items according to Article 2(20) of Regulation (EU) 2021/821

ELI: http://data.europa.eu/eli/reco/2024/214/oj

ISSN 1977-0677 (electronic edition)