EP ¦ EU Trade in Dual-Use Items with Conflict-Affected Regions

EU Trade in Dual-Use Items with Conflict‑Affected Regions – Gaps, Risks and Practical Steps Forward

The European Union is a major exporter of technology that can have both civilian and military applications. Regulation (EU) 2021/821 provides a comprehensive framework for controlling exports, transit and brokering of dual‑use items, but recent experience and the patterns of trade show persistent gaps when goods move to conflict‑affected regions. The risks are twofold: listed items that clearly require licences may still be authorised to actors or end uses that contribute to violations of international humanitarian law, and non‑listed, mass‑market components can be procured at scale and incorporated into weapons or surveillance systems with severe human rights consequences. Limited, non‑granular reporting and restrictive legal thresholds for catch‑all controls reduce visibility and blunt the EU’s ability to prevent harmful flows.

EU legal framework – scope and shortcomings

Regulation 2021/821 imposes an authorisation requirement for items on the EU control list and establishes catch‑all mechanisms for specific risk scenarios. Article 15 sets out the licensing considerations – including international obligations, sanctions, foreign and security policy factors, the intended end use and diversion risk – and thus gives Member States a basis to refuse licences where exports would contravene international commitments or raise International Humanitarian Law (IHL) concerns. For listed items this framework is generally sufficient in principle.

The regulation is weaker where non‑listed items are concerned. The military end‑use catch‑all in Article 4 can make non‑listed items licensable when authorities inform exporters that goods are destined for incorporation into a military list item – but only when the recipient country is subject to a full‑scope UN, OSCE or EU arms embargo. Article 7 links transit controls to the same limitation. Other catch‑all powers were strengthened in the 2021 recast – notably for cyber‑surveillance and terrorism‑related end uses – but the Article 4 limitation leaves important legal gaps for countries involved in serious conflicts that are not embargoed.

Practical consequences – examples from recent cases

Real world cases illustrate the problem. Battlefield debris and forensic analysis from Ukraine show western electronics and components – often non‑listed – being used in weapons and Uncrewed Aerial Vehicles (UAVs). Export controls were not designed to stop wide, decentralized procurement of such mass‑market components; many states and industry actors instead rely on sanctions‑style instruments like the Common High Priority List (CHPL) and customs‑classification measures. Those measures can work to curb flows to targeted actors, but they sit outside the export control regime and are HS‑code based, which reduces precision.

A Belgian court’s provisional injunction in 2025 concerning tapered roller bearings destined for an Israeli defence entity exposed another gap. The judge found a prima facie case that shipments could materially support violations of IHL and concluded that transit should be blocked. Under the EU dual‑use regulation, however, authorities lack an explicit legal basis to invoke the military end‑use catch‑all unless an arms embargo applies. National measures, such as the Flemish arms trade decree used in that case, can fill the vacuum locally, but the inconsistency across Member States produces legal uncertainty and divergent outcomes.

Cyber‑surveillance adds a separate dimension. The recast regulation and the Commission’s 2024 guidance improved human‑rights related catch‑all controls; Article 5 enables authorities to act where cyber‑surveillance exports pose a serious risk of human rights abuses and requires exporter notification. Yet spyware supply chains are often multinational, opaque and agile, making detection and interdiction difficult without robust cross‑border intelligence sharing and enforcement cooperation.

Bastian Schwind-Wagner _Follow

"The EU’s current dual‑use export regime contains useful tools for listed items but leaves legal and practical gaps for non‑listed components and for transit to military end uses in countries not under an arms embargo. Without clearer rules and better data, risks that dual‑use goods enable violations of international humanitarian law will persist.

Strengthening the military catch‑all, improving destination‑level reporting and restricting general licences for conflict‑affected destinations would reduce these risks while preserving legitimate trade. Coordinated enforcement and targeted additions to the EU control list will help close loopholes exploited through gray markets and complex supply chains."

Data and transparency – why the picture is unclear

The EU’s consolidated reporting has improved in recent years but remains insufficiently granular to allow public oversight of potentially problematic exports to conflict‑affected countries. The Commission’s 2023 statistics and several Member State reports provide useful aggregates, but many national reports are missing or omit destination‑level detail by category. A minority of Member States publish detailed breakdowns – notably Flanders and Sweden, and France and Spain present helpful category‑by‑country data – but the absence of consistent, comparable data across the EU prevents a reliable assessment of whether problematic trade is systemic or episodic.

Customs data from Eurostat COMEXT can indicate which HS groups are moving to which countries, and a selected HS basket highlights that aerospace and electronics make up the bulk of the value of potentially relevant shipments. But HS codes poorly match precise dual‑use control lists; customs leads only to indicators, not definitive proof that exported goods are controlled dual‑use items or destined for harmful end uses.

Where Member States stand in practice

Member States retain primary competence for licence decisions and enforcement. The regulation’s licensing criteria are binding in the sense that Article 15 lists the factors that must be considered, but interpretation and implementation vary. Some Member States have adopted national control lists, additional national rules, or policies restricting exports to specific recipients. Others use general or open licences for efficiency; that practice can be acceptable for low‑risk trade but becomes problematic for countries experiencing conflict because it reduces case‑by‑case scrutiny and heightens diversion risk. Sweden’s reporting of licences involving military end users and Flanders’ detailed listing of end‑user types are good practice examples. Overall, there is no clear evidence of systemic intentional non‑compliance with international obligations for listed goods, but circumvention and evasion of controls for non‑listed components are significant and increasing.

Recommended policy responses – legal and practical steps

1. Broaden the military end‑use catch‑all.
   Amend Regulation 2021/821 to decouple Article 4’s military end‑use control from the requirement of a full‑scope arms embargo. The catch‑all should be triggerable where a recipient is in a conflict‑affected situation and there is a demonstrable risk that non‑listed items would be incorporated into military systems or used in grave IHL violations. The UK’s post‑Brexit approach shows such broader wording is workable and would close legal gaps exposed by transit cases and indirect supply chains.
2. Strengthen reporting and transparency.
   Require Member States to publish consistent, destination‑level licence data by category and value for both individual and general authorisations. The EU annual report should include country‑by‑category details similar to the best national reports. Improved public reporting enhances parliamentary oversight, informed civil society scrutiny and harmonised risk assessment across Member States.
3. Discourage general and open licences for conflict‑affected destinations.
   EU guidance should recommend limiting the use of open or general authorisations to recipients without elevated conflict or human‑rights risks. Where general licences are used, competent authorities must demonstrate rigorous mitigation measures – end‑user vetting, enhanced due diligence and follow‑up checks.
4. Provide clear guidance on integrating IHL into licensing assessments.
   The Commission should issue interpretative guidance on applying Article 15 considerations to account for IHL obligations explicitly and to clarify how to assess risks of complicity in serious IHL violations. Member States should be encouraged to record and share reasoned assessments in exported licence decisions affecting conflict‑affected destinations.
5. Create an EU mechanism for adding items outside multilateral regime lists.
   The EU should adopt a defined procedure within the regulation for placing items on the EU control list even if the multilateral export control regimes have not yet listed them. This would permit more agile responses to emerging technology risks and align EU policy with operational needs (the Commission’s 2025 delegated act took steps in this direction but an explicit, rule‑based mechanism would provide legal certainty).
6. Expand enforcement cooperation and information sharing on circumvention.
   Build EU‑level platforms for timely exchange of intelligence on diversion, sanctions evasion and grey‑market supply chains. Strengthen customs–export‑control liaison and use OLAF and Eurojust more systematically to coordinate investigations into cross‑border circumvention.
7. Prioritise cyber‑surveillance controls and provider accountability.
   Tighten assessment of exports of surveillance tools, require meaningful provenance and chain‑of‑custody checks for software/hardware packages, and ensure export authorisations reflect the risk that such tools will be used to commit or facilitate serious human‑rights abuses. Where spyware providers use complex corporate structures across jurisdictions, the EU should prioritise cross‑jurisdictional inquiries and sanctions where warranted.

Practical measures for Member States and industry

Member States should adopt best practices in reporting, vetting and post‑export controls. They should review and tighten general licence use for higher‑risk destinations and proactively reassess previously issued licences when conflict dynamics change. Exporters must strengthen end‑use verification, maintain robust compliance programmes, and promptly report suspicious orders or diversion indicators.

Conclusion – shifting from reactive to proactive risk management

The EU’s dual‑use regulation provides a sound legal baseline for controlling listed items and for integrating human‑rights considerations into licensing decisions. However, gaps persist for non‑listed goods, for transit scenarios where no embargo exists, and for rapid, decentralized procurement of components that can be weaponised or used for mass surveillance.

The EU should adopt a more proactive posture: broaden Article 4, improve and harmonise reporting, discourage open licences for conflict‑affected destinations, create a mechanism to add critical items to the EU control list without waiting for multilateral regimes, and enhance enforcement cooperation. Those steps would close legal gaps, increase transparency and reduce the risk that EU‑origin dual‑use goods contribute to conflict or serious human‑rights violations.

Dive deeper

• EP ¦ EU trade in dual-use items with conflict-affected regions ¦ Link
• EUR-Lex ¦ 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 (recast) ¦ Link