By Guest author

In the upcoming weeks the Commission should release a proposal for a new Directive that will establish new rules related to the export of dual-use goods. Dual-use goods are defined as products and technology that can be used for civil purpose but also military applications.

On 22 July Euractiv published a leaked proposal from the European Commission (EC) related to a new Regulation on dual-use goods that will amend the previous one (REG.(EC) N.428/2009). The trigger of this proposal of the Commission came up after the campaign initiated by NGOs, mass media and MEPs following the information published about Hacking Team, an Italian IT company specialised in selling intrusive surveillance software.

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In October 2013 the Commission sent a comprehensive Report to the Council and the Parliament on the topic, followed up by a Communication in 2014 and an Impact Assessment in 2015, just before a vote in the European Parliament (EP).

On 8 September 2015 the European Parliament approved Marietje Schaake´s Report on Human rights and technology: the impact of intrusion and surveillance systems on human rights in third countries (2014/2232(INI)) that underlined the risks for citizens created by the sale of these tools.

When we consider export controls of dual-use goods we should take into account that EU Member States (MS) are already part of the Wassenaar Arrangement (WA), an international multilateral export control regime agreement on Conventional Arms and Dual-Use Goods and Technologies. This agreement had already been heavily criticised from different perspectives, not least the non-binding character of the Agreement. The leaked proposals seem to have taken into consideration the criticism of the WA and of the previous EU Regulation

Reconciling trade and human rights is one of the aims of the text. In order to achieve this, the draft Regulation envisages the creation of a new EU General Export Authorisation (EUGEAs) in order to harmonise the European system of authorisation within all the MS. This aims to make the authorisation process easier.

The draft Regulation has updated a comprehensive list of dual-use goods with a re-definition of the terminology and has introduced a catch them all mechanism. According to this instrument, also non-listed items could be subject to control in case this is needed in the light of the objectives of the Regulation.

On this specific issue, some organisations like Privacy International have criticised the inclusion of Forensic Tools in the list of goods that require a specific authorisation process.

In conclusion, the draft text of the Commission has taken into account the remarks of the European Parliament – at least in relation to the protection of human rights. The text also includes the opinions presented by many of the stakeholders during the Public Consultation. The new Regulation aims to ensure new safeguards for individuals and to make it easier for industries to make it through the authorisation process.

The new regulatory settlement is designed not to affect law enforcement investigations. The evaluation related to the inclusion of items in the list of products that will require a specific authorisation process should be made carefully.

Euractive: Commission plans export controls for surveillance technology (22.07.2016)
https://www.euractiv.com/section/trade-society/news/technology-companies-face-export-hurdles-under-draft-eu-rules/

Leak of the new directive proposal on export control of dual use-goods (22.07.2016)
http://www.euractiv.com/wp-content/uploads/sites/2/2016/07/dual-use-proposal.pdf

Wassenaar Agreement
http://www.wassenaar.org/

EP Report: Human rights and technology: the impact of intrusion and surveillance systems on human rights in third countries (08.09.2015)
http://www.euractiv.com/wp-content/uploads/sites/2/2016/07/dual-use-proposal.pdf

Privacy International: Landmark changes to EU surveillance tech export policy proposed, leaked document shows (28.07.2016)
https://www.privacyinternational.org/node/909

(Contribution by Alessandro Bruni, EDRi intern)

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