Correspondence with Ministers October 2006 to April 2007 - European Union Committee Contents


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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