Commission Delegated Regulation (EU) 2023/66 of 21 October 2022 amending Regulation (EU) 2021/821 of the European Parliament and of the Council as regards the list of dual-use items

• Published date: 11 January 2023
• Subject Matter: Common foreign and security policy,Customs procedures,Free movement of goods
• Official Gazette Publication: Official Journal of the European Union, L 9, 11 January 2023

11.1.2023 EN Official Journal of the European Union L 9/1

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COMMISSION DELEGATED REGULATION (EU) 2023/66

of 21 October 2022

amending Regulation (EU) 2021/821 of the European Parliament and of the Council as regards the list of dual-use items

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 (1), and in particular Article 17(1) thereof,

Whereas:

(1) Regulation (EU) 2021/821 requires dual-use items to be subject to effective control when they are exported from or in transit through the Union, or are delivered to a third country as a result of brokering services provided by a broker resident or established in the Union.

(2) Annex I to Regulation (EU) 2021/821 establishes the common list of dual-use items that are subject to controls in the Union. Decisions on the items subject to controls are taken within the framework of internationally agreed dual-use controls.

(3) The list of dual-use items set out in Annex I to Regulation (EU) 2021/821 needs to be updated regularly in order to ensure full compliance with international security obligations, to guarantee transparency, and to maintain the competitiveness of economic operators. The control lists adopted by the international non-proliferation regimes and export control arrangements have been changed during 2021, and therefore Annex I to Regulation (EU) 2021/821 should be amended accordingly. In order to facilitate references for export control authorities and economic operators, Annex I to that Regulation should be replaced.

(4) Regulation (EU) 2021/821 empowers the Commission to update the list of dual-use items set out in Annex I by means of delegated acts, in conformity with the relevant obligations and commitments, and any amendment thereof, that Member States and, where applicable, the Union have accepted as members of the international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties.

(5) Considering the importance of ensuring full compliance with international security obligations as soon as practically possible, this Regulation should enter into force on the day following that of its publication.

(6) Regulation (EU) 2021/821 should therefore be amended accordingly,

HAS ADOPTED THIS REGULATION:

Article 1

Annex I to Regulation (EU) 2021/821 is replaced by the text in the Annex to this Regulation.

Article 2

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 21 October 2022.

For the Commission

The President

Ursula VON DER LEYEN

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(1) OJ L 206, 11.6.2021, p. 1.

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ANNEX

‘ANNEX I

LIST OF DUAL-USE ITEMS REFERRED TO IN ARTICLE 3 OF THIS REGULATION

The list of dual-use items contained in this Annex implements internationally agreed dual-use controls including the Australia Group (1), the Missile Technology Control Regime (MTCR) (2), the Nuclear Suppliers Group (NSG) (3), the Wassenaar Arrangement (4) and the Chemical Weapons Convention (CWC) (5).

CONTENTS

Part I General Notes, Acronyms and Abbreviations, and Definitions

Part II - Category 0 Nuclear materials, facilities and equipment

Part III - Category 1 Special materials and related equipment

Part IV- Category 2 Materials processing

Part V - Category 3 Electronics

Part VI - Category 4 Computers

Part VII - Category 5 Telecommunications and "information security"

Part VIII - Category 6 Sensors and lasers

Part IX - Category 7 Navigation and avionics

Part X - Category 8 Marine

Part XI - Category 9 Aerospace and propulsion

PART I

General Notes, Acronyms and Abbreviations, and Definitions

GENERAL NOTES TO ANNEX I

1. For control of goods which are designed or modified for military use, see the relevant list(s) of controls on military goods maintained by individual EU Member States. References in this Annex that state "SEE ALSO MILITARY GOODS CONTROLS" refer to the same lists.

2. The object of the controls contained in this Annex should not be defeated by the export of any non-controlled goods (including plant) containing one or more controlled components when the controlled component or components are the principal element of the goods and can feasibly be removed or used for other purposes. N.B. In judging whether the controlled component or components are to be considered the principal element, it is necessary to weigh the factors of quantity, value and technological know-how involved and other special circumstances which might establish the controlled component or components as the principal element of the goods being procured.

3. Goods specified in this Annex include both new and used goods.

4. In some instances, chemicals are listed by name and CAS number. The list applies to chemicals of the same structural formula (including hydrates) regardless of name or CAS number. CAS numbers are shown to assist in identifying a particular chemical or mixture, irrespective of nomenclature. CAS numbers cannot be used as unique identifiers because some forms of the listed chemical have different CAS numbers, and mixtures containing a listed chemical may also have different CAS numbers.

NUCLEAR TECHNOLOGY NOTE (NTN)

(To be read in conjunction with section E of Category 0.)

The "technology" directly associated with any goods controlled in Category 0 is controlled according to the provisions of Category 0.

"Technology" for the "development", "production" or "use" of goods under control remains under control even when applicable to non-controlled goods.

The approval of goods for export also authorises the export to the same end-user of the minimum "technology" required for the installation, operation, maintenance and repair of the goods.

Controls on "technology" transfer do not apply to information "in the public domain" or to "basic scientific research".

GENERAL TECHNOLOGY NOTE (GTN)

(To be read in conjunction with section E of Categories 1 to 9.)

The export of "technology" which is "required" for the "development", "production" or "use" of goods controlled in Categories 1 to 9, is controlled according to the provisions of Categories 1 to 9.

"Technology""required" for the "development", "production" or "use" of goods under control remains under control even when applicable to non-controlled goods.

Controls do not apply to that "technology" which is the minimum necessary for the installation, operation, maintenance (checking) or repair of those goods which are not controlled or whose export has been authorised.

Note : This does not release such "technology" specified in 1E002.e., 1E002.f., 8E002.a. and 8E002.b.

Controls on "technology" transfers do not apply to information "in the public domain", to "basic scientific research" or to the minimum necessary information for patent applications.

NUCLEAR SOFTWARE NOTE (NSN)

(This note overrides any control within section D of Category 0)

Section D of Category 0 of this list does not control "software" which is the minimum necessary "object code" for the installation, operation, maintenance (checking) or repair of those items whose export has been authorised.

The approval of goods for export also authorises the export to the same end-user of the minimum necessary "object code" for the installation, operation, maintenance (checking) or repair of the goods

Note : The Nuclear Software Note does not release "software" specified in Category 5, Part 2 ("Information Security").

GENERAL SOFTWARE NOTE (GSN)

(This note overrides any control within section D of Categories 1 to 9.)

Categories 1 to 9 of this list do not control "software" which is any of the following:

a. Generally available to the public by being: 1. Sold from stock at retail selling points, without restriction, by means of: a. Over-the-counter transactions; b. Mail order transactions; c. Electronic transactions; or d. Telephone call transactions; and 2. Designed for installation by the user without further substantial support by the supplier; Note : Entry a. of the General Software Note does not release "software" specified in Category 5, Part 2 ("Information Security").

b. "In the public domain"; or

c. The minimum necessary "object code" for the installation, operation, maintenance (checking) or repair of those items whose export has been authorised.

Note : Entry c. of the General Software Note does not release "software" specified in Category 5, Part 2 ("Information Security").

GENERAL "INFORMATION SECURITY" NOTE (GISN)

"Information security" items or functions should be considered against the provisions in Category 5, Part 2, even if they are components, "software" or functions of other items.

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