DUAL-USE ITEMS AND TECHNOLOGY (16989/06)
Letter from the Chairman to Malcolm Wicks
MP, Minister of State for Science and Innovation, Department for
Trade and Industry
Sub-Committee C considered the above document
at its meeting on 8th March 2007 and decided to hold it under
scrutiny.
The Sub-Committee strongly supports this Proposal
for a Council Regulation setting up a Community regime for the
control of exports of dual-use items and technology, and welcomes
the stance taken by the UK Government. Overall the document provides
for a streamlining of the current Regulation, but there are two
major legal points which require clarification, relating to criminal
sanctions and to information-sharing on criminal convictions.
The Sub-Committee would also be grateful for clarification on
three points of substance.
The proposed Regulation raises concerns regarding
the competence of the European Community to require Member States
to impose criminal sanctions, The Committee's report "The
Criminal Competence of the European Community" (no. 42, session
05-06) examined this matter in detail, with reference in particular
to the judgment (September 2005) of the European Court of Justice
(ECJ) in Case C-76/03 (Environmental Protection).
As you are aware, the Commission has adopted
a wide interpretation of this judgment and asserts that it has
such competence, but the Member States, including the UK, disagree,
and the opposing parties are currently in an impasse over the
issue. The issue remains live before the ECJ in the Ship Pollution
case (Case C-440/05) but the Court is not expected to deliver
its judgment in that case before the end of 2007. In the light
of this ongoing dispute, does the Government support new Article
21 which requires the Member States to impose criminal penalties?
The second legal point concerns Article 15,
which provides for exchange among Member States of information
on convictions for criminal export-related offences. There are
currently two initiatives underway in the Third Pillar which aim
to build on the current EU system for storing and exchanging criminal
record information among Member States (proposed Framework Decision
on the organisation and content of the exchange of information
extracted from the criminal record (Doc 5463/06) and Commission
Working Document on the feasibility of an Index of third country
nationals convicted in the EU (Doc 11453/06)), How does the obligation
in the proposed Regulation fit into this general scheme? Does
the Government have any concerns regarding the use of Article
133 to make provisions of this nature?
On substance, one point of concern to the Sub-Committee
relates to Article 19, which provides for the setting up of a
Dual-Use Committee. The wording is not very clear on the Committee's
composition (which can only be inferred from Art. 20), function
or powers. Is the Government satisfied with the way this Article
is drafted?
A second point of substance relates to the definition
of dual-use items (Article 2). The wording used covers items which
can be used to make nuclear weapons, but there is no explicit
mention of chemical and biological weapons, nor of means of delivery.
This apparently amounts to a discrepancy in relation to UN Security
Council Resolution 1540, which refers to "nuclear, chemical,
or biological weapons and their means of delivery" (para.
1), whilst Article 4(1) line 5, of the proposed Regulation also
uses the wider definition. Does the Government consider that Article
2 covers the full range of dual-use items as set out in the substantive
sections of the proposed Regulation? Or is there a case for the
definition being widened to make it consistent with the rest of
the proposed Regulation and bring it in line with UNSCR 1540?
A third point of substance relates to the effectiveness
of the current regime. What is the Government's assessment of
the effectiveness of the Regulation currently in force; including
in relation to the full implementation of its provisions by other
Member States? In what ways will the amended regime for the control
of the export of dual-use items be more effective than the current
one?
The Sub-Committee would be grateful for clarification
of the above points, and requests that the Government keep it
informed on the negotiations in the Council on this dossier.
29 March 2007
Letter from Malcolm Wicks MP to the Chairman
Thank you for your letter of 29 March. We are
consulting other Government Departments with a view to providing
a full response to the points you raised. I will write again with
a substantive response once further enquiries are complete.
16 April 2007
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