As part of the Commission’s public online consultation on the review of the EU’s export control policy, Marietje Schaake proposes the following 12 actions to remedy the shortcomings in the EU’s export control regime for dual use items. You can read the final submission here.
Action 1: Create an EU-wide catch all clause
If a European Member State decides to invoke the current catch all clause in the regulation to prevent the export of a non-listed dual use item on the basis of grave human rights concerns, then this does not prevent other EU MS to export the same item. This needs to change.
Action 2: Ensure accountability and transparency
Member States and the European Commission should have a pro-active notification obligation towards the Parliament and submit an annual report of the number and nature of license applications, in order to ensure proper oversight and eventually set up one objective standard for the issuing of export licenses.
Action 3: Uniform penalties
The EU needs a coherent system of penalties for companies who violate the export control regulation.
Action 4: Introduction of a simplified GEA for intra-company transfers
The EU should establish a precise General Export Authorisation relating to intra company transfers, which would enable the EU to draw up a list of items that are not allowed to be transferred (without prior consent) to non-EU entities outside the company.
Action 5: Establish country-specific lists
The changes in North Africa and the Middle East, but also in Ukraine and Russia, have over the past years required urgent EU action, e.g. in relation to the adoption of (targeted) restrictive measures like oil embargoes, asset freezes and investment bans. In a similar way the EU should be able to address what some have called the ‘buy-side’ of dual use technologies in a flexible way, by imposing ad hoc export license requirements on certain products, to certain countries, to prevent the ongoing export.
Action 6: EU ‘know your customers’ guidelines on exports
The Commission should set-up and provide ‘know your customer guidelines’ on the basis of the UN “Guiding Principles on Business and Human Rights” that give guidelines to companies to assess whether their goods may be used for internal repression or human rights abuses.These guidelines can consist of a checklist of ‘flagging criteria’ that could indicate potentially suspicious transactions. On this basis, companies can assess the plausibility that their products may be used to violate human rights before the sale is completed. The Commission in turn should monitor enforcement of these know your customer rules. Whistleblower protection should be offered to employees of exporters that report non-compliance.
Action 7: Helpdesk for companies
The Commission should be able to swiftly provide companies that are in doubt as to whether to apply for an export licence with accurate and up-to-date information on the legality or potentially harmful effects of potential transactions. To this end, a company helpdesk should be set, which should closely liaise with Member State export control authorities to provide companies with the necessary information.
Action 8: Dialogue with exporters
Exporters should take responsibility and increase transparency regarding exports by smaller companies that belong to their holdings. The Commission should have a clear mandate to demand transparency of in this context.
Action 9: Investigate possibility to start infringement procedure
The Commission should investigate the possibilities for launching infringement proceedings against a country whose export control authority has exported dual use goods in violation of the updated dual use regulation. It must be clear that the dual use regulation requires a uniform and consistent application in order to be effective. The European Commission needs to make sure that this happens and, when necessary, be ready take steps against national authorities
Action 10: Dialogue with security researchers in STEG
The Commission and MS authorities must engage in dialogue with security researchers. An appropriate framework for this is the Surveillance Technology Working Group (STEG) within the DG Trade Dual Use Working Group. While controlling the export of technology to prevent human rights abuses is essential, export controls should not hinder the legitimate transfer of technology which can be used to protect human rights and for research. With this in mind, consulting security researchers and experts is essential.
Action 11: Allowing third country citizens to report
Those in third countries often suffer the most damage from violations of or loopholes in EU export control legislation. Therefore the EU needs to create a mechanism for citizens, human rights organisations and human rights defenders in third countries to report instances where they believe export control legislation has been circumvented or should be updated. This could be done in the form of a reporting hotline, or by creating a separate contact point within the dual-use coordination group. The European Commission should collect reports and disseminate them to the relevant MS export control authorities.
Action 12: Address unintended consequences of the intrusion software control
The 2013 inclusion of ‘intrusion software’ in the List of Dual-Use Goods and Technologies and Munitions List of the Wassenaar Agreement has led to an unintended chilling effect on the work of (independent) security researchers, despite numerous statements of members of the Wassenaar Agreement, export control authorities, NGO’s, the European Parliament and the European Commission, and despite the existence of numerous safeguards in the Wassenaar Agreement and the Dual Use Regulation. In order to remove this unintended chilling effect, the Commission could find inspiration in statements that clarify that the scope of control on the “development” of intrusion software applies only to end use cases and end users facilitating or conducting surveillance activities.