On 26 October, the European Commission published on its website a note in which it drew the attention of operators to the publication of a communication (i.e. Communication C/2023/441 of 20/10/2023) setting out the national control lists notified by certain Member States, pursuant to Article 9 of the Dual-Use Regulation for the first time since the entry into force of Regulation (EU) 2021/821 (so-called Dual-Use Regulation).

STUDIO LEGALE PADOVAN, from right to left Giacomo Grappoli, Marco Padovan, Mario Alfonzo

STUDIO LEGALE PADOVAN, from right to left Giacomo Grappoli, Marco Padovan, Mario Alfonzo

In particular, such checklists adopted at national level by Spain and the Netherlands on 31 May 2023 and 23 June 2023 respectively, aimed at limiting among other things the export of semiconductor machinery, quantum computers and technologies related to the production and development of semiconductor machines or components thereof, additive manufacturing machines (i.e. 3D printers) and other emerging technologies.

Thus, the Government of Spain and the Netherlands decided to impose export restrictions on products not covered by Annex I to the Dual-Use Regulation, thereby obliging their domestic exporters to apply for prior authorisation for the export of the latter, as well as any other dual-use items listed in that Annex. However and despite the consequences that such measures may have in the countries where they were adopted, the publication of such communication may also have significant effects in all the other Member States.

In fact, under Article 10 of the Dual-Use Regulation, the other Member States – after the publication of such a communication from the Commission – may impose prior authorization for the export of the same products included in the national inspection lists adopted by another Member State (and made known in the same communication), provided that the exporter has been informed by the competent authority (e.g. for Italy, UAMA) that such products ‘‘are or may be in whole or in part be used in such a way that would raise public security concerns, including prevention of terrorist acts or be related to human rights matters’‘ (see Article 10(1) Dual-Use Regulation).

Therefore it follows that there is a possibility for the Member States to coordinate the imposition of export control measures, adopted on the basis of strategic needs developed within the Union and not under multilateral control regimes (i.e. the Australia Group, the Missile Technology Control Regime – MTCR, the Nuclear Suppliers Group – NSG, the Wassenaar Arrangement and the Chemical Weapons Convention (CWC)) which – to date – have been the only place to negotiate any control measure adopted in a dual context.

This is another symptom of an increasingly acute crisis in the multilateral system that since the post-war period, has characterised international relations at the global level and, at the same time, an increasing polarisation of relations between states, with inevitable impact on trade in strategic products. In this sense it does not seem coincidental that the European Commission itself, when introducing the communication, expressly speaks of “autonomous controls“, emphasising the appearance of a new phase in which to the controls agreed at multilateral level will increasingly be added autonomous ones, decided by the individual Member States.

Studio Legale Padovan has more than ten years of experience in carrying out objective due diligence/product classification activities in collaboration with technical experts in the field of dual-use. Upon clients’ request the Firm prepares expert opinions and technical and legal compliance reports for the goods intended for export (including software, equipment and technology) as per the EU provisions on dual use products and on products under EU restrictive measures as the case maybe with Iran and Russia.


GET TO KNOW THE AUTHORS: Marco Padovan, Mario Alfonzo, Giacomo Grappoli