New dual use regulation: the mixed concept of dual use

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Technology creates many legal challenges and opportunities. Reflections on these have been brought together in a recent book. As author of one of the contributions, Kwinten Dewaele reflects on the new European dual use regulation, applicable to items that can be used both for military and civil purposes, and interpretive issues accompanying its implementation.

On the 9th of September a new European Dual Use Regulation entered into force, putting up a new framework for the export of dual use items. After having been debated for nearly five years, this new regulation has to live up to high expectations. Yet, its very concept of “dual use” remains ambiguous, with two interpretations co-existing: a materialistic one (based on the items’ characteristics) and an intentionalistic one (based on their intended end-use). The new regulation combines both. This mixed concept will hamper the effective enforcement and implementation of the regulation and ultimately harms the very purpose of export controls.

Civil-military dichotomy: a materialistic approach to dual use

While free trade is often encouraged, there is a consensus amongst public authorities that some goods of strategic value should not cross borders uncontrolled. These so-called “strategic goods” (including fissile materials, conventional weapons, dual use items, minerals, and extraordinary works of art) consequently are subject to exports controls. Recently, a new EU export control regulation entered into force regarding the export of “dual use items” thus setting out the relevant framework for EU member states. Regulation 2021/821 (hereafter: the Regulation) nevertheless leaves the concept of “dual use” largely undecided, notwithstanding its official definition. Article 2(1) of the Regulation defines “dual use items” as “items, including software and technology, which can be used for both civil and military purposes […]”. The Article reveals a clearly materialistic approach to determining what items are dual use, since it defines the concept on the basis of the objective characteristics of the item under control (i.e. whether it may be used for both civil and military purposes). Such an approach is the most common in legal applications (see for example a similar approach under American law) but leaves the determination of the distinction between “civil” and “military” applications open for debate. How does one indeed determine what is a “civil” or a “military” application?

One possible solution is to make a distinction based on the producer’s intention. Under German law, for example, one line of thought qualifies an item as a “military item” if it is developed with the intention to be used for a military purpose, even if it may have (occasional) civil applications. Analogously, one might argue that an item is a “dual use item” if the producer had the intention to develop an item that could have both military and civil applications.

However, this interpretation seems doubtful. First, Article 2(1) of the Regulation explicitly refers to the possible use (“can be used”) and not the intended use of the item under control. Moreover, a qualification based on the objective characteristics of the item at hand seems consistent with European case law (comp. Insinööritoimisto InsTiimi Oy at 40) and the practice of enforcing control lists. Indeed, rather than having exporters and controlling authorities contemplate on “possible applications”, the Regulation includes a – very extensive – list of possible characteristics that render an item subject to control. Such “listed items” are by the mere fact of their being listed automatically considered to be “dual use items”.

Benevolent-malevolent dichotomy: an intentionalistic approach to dual use

Considering the foregoing, one might be tempted to think the debate is settled, with the Regulation clearly opting for a materialistic approach on the basis of the item’s characteristics. However, things are not as simple as they seem. While it is sufficient for an item to be listed for it to be a “dual use item”, the opposite is not true. Unlisted items may – under certain conditions – also constitute “dual use items” and consequently be subject to control.

Specific reference should be made here to Article 5 of the Regulation. The main purpose of these provisions is to enhance the protection of human rights through export controls, by subjecting non-listed items to controls based on their end-use. In doing so, these provisions adhere to an intentionalistic approach: not the item’s characteristics but the intended use envisaged by the end-user determines whether it is considered a dual use item or not. Based on the distinction between benevolent and malevolent use, this approach originates in the world of science ethics (see as an authority on this matter the 2004 Fink-report). This may be useful in academia, where researchers may (and must) be expected to reflect on the possible misuse of their research.

It does not seem fair or practical, however, to put such an investigatory burden on the shoulders of both exporters and controlling authorities. Indeed, an intentionalistic approach presupposes that an exporter or controlling authority can effectively assess the intended use by a third party, quod non. Therefore, the new Regulation‘s current provisions are likely to lead to an inconsistent application of the law based on diverging risk assessments (of the same or similar transactions) by exporters and controlling authorities. Moreover, given the unclarity of the provision, it is doubtful whether the criminal enforcement of the Regulation is even compatible with the lex certa-principle (Art. 7 ECHR). Consequently, the current mixed approach taken by the Regulation largely defeats the purpose of having export controls in the first place.

Kwinten Dewaele is a PhD-researcher and FWO fellow at the Institute for Contract Law (KU Leuven). His thesis mainly deals with private compliance issues on strategic trade controls, in particular on dual use export controls.

This blogpost reflects and expands on a more detailed analysis of the concept of “dual use”, recently published as a contribution in “Technology and society: the evolution of the legal landscape” (eds. M. Bourguignon, T. Hick, S. Royer and W. Yperman; publisher Gompel and Scavina, 2021).

Kwinten DEWAELE, "New dual use regulation: the mixed concept of dual use", Leuven Blog for Public Law, 17 November 2021, (geraadpleegd op 27 November 2021)

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