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On May 10, 2021, the EU adopted its new, revised version of Regulation (EC) No 428/2009 (the Regulation). It is widely acknowledged to be the first major reform to the structure of the EUs export control regime since 2009.

The text of the Regulation was approved by the European Parliament on March 26, 2021. In November 2020, the Council and European Parliament representatives reached a provisional political agreement on the Regulation. The reform of EU export controls had initially been proposed by the European Commission in September 2016.

The Regulation introduces, inter alia:

We comment below on a number of these highlights.

The main feature of the Regulation concerns the area of human rights, dealing with such things as surveillance and facial recognition software.

The Regulation does not add specific cyber-surveillance items to the Dual-Use Control List in Annex I. Rather, it sets out new Articles 5(1) and 5(2) creating a catch-all prohibition of any unlicensed export of cyber-surveillance items (whether or not listed) if:

or

In the latter case, the exporter is required to notify its competent authority (understood to be its Member State export licensing authority), which will then decide whether or not to make the export subject to an authorisation requirement. Article 26(1) provides that the European Commission and the Council of the European Union, as well as Member States, will publish guidelines for exporters to apply in doing their due diligence.

Article 5(3) allows individual Member States to impose their own additional export license requirements for cyber-surveillance items not on the Dual-Use Control List.

Articles 5(4) and 5(6) create an EU-level coordination mechanism providing for notification of other Member States when one Member State decides to impose a licensing requirement under Article 5(1), 5(2) or 5(3).

Article 26(2) requires the European Commission to prepare and release to the public an annual report detailing for each Member State information about the applications received for each cyber-surveillance item, the destinations involved, and the granting or denial of the applications. Civil society groups have called this new transparency rule a landmark development which will allow the public, civil society, journalists, and parliamentarians to scrutinize licensing decisions to ensure they are in accordance with law and provide an invaluable insight into the EU trade in surveillance technology.[1]

Under Article 9, a Member State is authorised to prohibit or impose an authorisation requirement on exports of items not on the Dual-Use Control List for reasons of public security, including the prevention of acts of terrorism, or for human rights considerations. These Member State measures are to be notified to and published by the European Commission. Pursuant to a new Article 10, exporters in other Member States are then prohibited from making unlicensed exports of the items from the EU if they have been informed by their respective competent authorities (understood to be their own Member State export licensing authorities) that the items in question are or may be intended for uses of concern with respect to public security or to human rights considerations.

The end result of Article 10 is that when one Member State prohibits or imposes a licensing requirement for an item not already on the Dual-Use Control List, the export licensing authorities of other Member States will have the legal authority by virtue of the Regulation to impose the same prohibition or licensing requirement. This provision is consistent, at least to some degree, with the aim of harmonisation intended by the Regulation. In Member States whose legislation does not empower their licensing authorities unilaterally to impose export licensing requirements on new items, the Regulation effectively transfers legislative authority from one organ of Member State government (the legislature) to another (the export licensing authority). When enforcement cases arise under new Article 10, we may see exporters in some Member States raise constitutional questions about the validity of this transfer of law-making power from the legislature to the export licensing agency. By exercising their power under Article 10(1), however, the export licensing agency would presumably be acting under the Regulation pursuant to the authority conferred by Article 207(2) of the Treaty on the Functioning of the European Union (TFEU), which confers exclusive jurisdiction on the EU to legislate on matters affecting the Unions common commercial policy. Such constitutional questions under Member State law may, therefore, be quickly overcome by Article 207(2) and resolved on the basis of the primacy of EU law over national law.

Article 8 of the revised Regulation sets out notification and authorisation requirements for a provider of technical assistance related to items on the Dual-Use Control List, if the provider is aware that the assistance is intended for use in connection with weapons of mass destruction or other specified military uses. Member States may also extend the application of this article to items not on the Dual-Use Control List.

The definition of provider of technical assistance is found in Article 2(10) and is very broad. It includes:

(1) natural or legal persons that provide technical assistance from the EU to the territory of a third country;

(2) natural or legal persons resident or established in the EU that provide technical assistance within the territory of a third country; and

(3) natural or legal persons resident or established in the EU that provide technical assistance to a resident of a third country temporarily present in the EU.

The coverage in item (3) above of technical assistance to a resident of a third country temporarily present in the customs territory of the Union is revolutionary for the EU, because it effectively creates a new deemed export control (the term used in the U.S. export control system for disclosures of technical data within the United States to non-U.S. persons). Is one temporarily present in the EU for purposes of this new rule whenever one does not have permanent residence status in an EU Member State? If so, this new EU rule will operate very much like its U.S. counterpart.

Once the European Parliament and the Council sign the adopted regulation, it will be published in the Official Journal of the European Union and will enter into force 90 days later. We expect the revised Regulation to be published this month or next and enter into force as soon as September 2021.

We will closely monitor activity around the revised Regulation and provide ongoing updates at our blog here.

[1] New EU Dual Use Regulation agreement a missed opportunity to stop exports of surveillance tools to repressive regimes, published on March 25, 2021 and available here.

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A New Era of Export Controls Begins in the EU: The Revised EU Dual-Use Export Controls to Promote Human Rights - JD Supra

Joining Michael this week for the podcast quarterly check in with Europe is International Competition specialist Oliver Heinisch from London. Oliver shares the latest updates from the continent, including insight on Brexit, European merger controls, and the adequacy of GDPR enforcement.

Oliver is a partner in the Antitrust and Competition Practice Group in Sheppard Mullins London and Brussels offices. Oliver advises on all areas of EU, UK and German competition law with a focus on international Seemore+

Oliver is a partner in the Antitrust and Competition Practice Group in Sheppard Mullins London and Brussels offices. Oliver advises on all areas of EU, UK and German competition law with a focus on international cartel and abuse of dominance procedures including related antitrust litigation matters as well as merger control law. He also regularly advises clients on questions relating to the UKs decision to leave the European Union.

What We Discussed in This Episode:

What is the latest with Brexit and the Trade and Cooperation Agreement?

What is happening in Northern Ireland vis--vis Brexit?

How is the relationship between the UK and the European Union (EU) developing?

What has the EU decided in regard to the UKs adequacy of data protection?

What type of guidance has the EU Commission issued regarding merger transactions?

How will merger controls be handled going forward?

Is there potential for blind overregulation of digital markets?

Is there underenforcement of the GDPR?

What does Europe have to do to kickstart its economy as it emerges from the pandemic?

Seeless-

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Nota Bene Episode 123: Europe Q2 Check In - Brexit Updates and Antitrust Laws in the Digital Economy with Oliver Heinisch - JD Supra

BRUSSELS The European Union took a crucial step on Monday toward reopening its borders to vaccinated travelers after the blocs executive released a plan for allowing journeys to resume after more than a year of stringent coronavirus restrictions.

The European Commission, the executive branch of the European Union, proposed that the 27 member countries reopen their borders to all travelers who have been fully vaccinated with shots approved by the blocs medicine regulator or by the World Health Organization. The commission also outlined other, looser, pandemic-related conditions that should permit people to travel.

The proposal would see more regular travel to the bloc gradually restart in time for the summer tourism season, which provides economic lifeblood for several member states. The plans are an important moment in Europes efforts to return to a semblance of normalcy after more than a year of strict limitations.

Travel from outside the bloc was halted almost entirely last spring and only restored tentatively for a handful of exceptions last summer. The measures separated families, hobbled the tourism and aviation sectors and brought business travel to an almost total halt.

The policy switch was first previewed by Ursula von der Leyen, president of the European Commission, in an interview with The New York Times last month, during which she said that vaccinated Americans should be able to visit Europe this summer. The detailed proposal laid out on Monday also confirmed Ms. von der Leyens earlier statements about the important role that the mutual recognition of vaccination certificates will play in resuming international travel.

To pass, the proposal released on Monday will require the backing of a reinforced majority of member states, which it is likely to receive late this month or in early June. Still, individual member countries retain a good deal of sovereignty around health policy, so each state will probably use that leeway to tailor the travel measures further.

For example, some countries that greatly depend on visitors for income and jobs, such as Greece and Spain, have already moved to reopen borders even before the European Union adopts any new, bloc-wide policy. Others, especially in the continents north, could maintain more stringent regulations because they dont stand to gain as much from loosened travel rules for the summer.

Given those likely differences, the commissions proposal comes in part to prevent a totally uncoordinated approach to travelers from outside the bloc.

Still, even if the proposal is adopted by E.U. countries, the changes would not necessarily mean a simple or predictable set of rules for visitors, and spontaneous travel to Europe could still be far off.

For unvaccinated travelers, the conditions in their country of origin, a negative PCR test and quarantine are likely to continue to play a deciding role in whether they can visit. But the commission has proposed that those who want to enter at least two weeks after receiving their second vaccine shot should be allowed, without testing or quarantines.

Under the plans, the bloc would also be able to quickly snap back to a near-total travel ban if a dangerous coronavirus variant were to emerge using an emergency brake mechanism.

A key piece of the puzzle for the European Union would be the mutual recognition of officially issued vaccination certificates. While the bloc is making strides in preparing a digital green pass for inoculated citizens (and has contracted companies including the logistics giant SAP to digitize vaccine cards), the United States and other countries are further behind and as yet do not offer uniform, verifiable vaccine certificates. The European Union and the United States have been involved in technical discussions on how to ensure American certificates are verifiable and acceptable in the bloc, officials said.

Addressing some major questions that aspiring visitors have raised in recent weeks, the commission said that children would not need to be vaccinated to travel to the bloc but that they could be required to show a negative test.

British visitors to the European Union, a big pool of tourists, could be counted among those able to travel more freely given the fast advancement of vaccination there. But the European Union is not yet in touch with British officials over the question of mutually recognizable vaccine certification, officials said.

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Vaccinated Tourists Could Soon Be Allowed to Visit Again, E.U. Says - The New York Times

AB Ignitis grup (hereinafter the Company) informs that on 14 April 2021 General Court of the European Union adopted a decision to annul the decision of European Commission to coordinate aid scheme for renewable energy projects implemented by the Republic of Lithuania (hereinafter the Scheme).

Currently, the Companys subsidiaries UAB Vjo vatas, UAB Vjo gsis and UAB Eurakras are receiving feed-in tariffs according to the provisions of the Scheme.

Based on current market practice, after the General Court of the European Union annuls the coordinated Scheme, an in-depth investigation will be potentially launched in respect of the utilisation of the Scheme (hereinafter the Investigation), which may take several years. The Company notes that the decision to annul the decision of the European Commission to coordinate the Scheme does not constitute a negative decision on the utilisation of the Scheme in the Republic of Lithuania.

The Company is not a party of the Investigation which will be potentially launched, therefore, the Company will announce publicly about the progress of the Investigation only if the information disclosed publicly during investigation that is accessible by the Company is relevant to investors.

Based on the information currently available to the Company, the ongoing processes in respect of annulling the Scheme should not have significant effect on the financial results of the Group companies.

For more information please contact:

Artras KetleriusHead of Public Relations at Ignitis Grouparturas.ketlerius@ignitis.lt+370 620 76076

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On the decision of General Court of the European Union to - GlobeNewswire

The European Union abandoned a plan to send monitors to observe elections in Ethiopia next month, citing concerns about security.

The decision risks undermining the credibility of a long-delayed vote that will be a critical test of reforms implemented by Prime Minister Abiy Ahmed in one of Africas fastest-growing economies. The nations electoral authorities are facing difficulties organizing the ballot because of unrest thats flared in various parts of the country.

READ: Why Ethiopias Nobel Peace Prize Winner Is Waging War: QuickTake

The EU canceled the observer mission after the Ethiopian government refused to fulfill standard requirements needed for its deployment, according to a statement on the blocs website. The vote is scheduled to take place on June 5.

The EUs conditions included the independence of the mission and the importing of communication systems needed in the context of a challenging security environment, the EU said. It is disappointing that the EU has not received the assurances necessary to extend to the Ethiopian people one of its most visible signs of support for their quest for democracy.

Ethiopias foreign ministry said in a statement it was unfortunate the EU had presented the need to import communication systems as a condition to monitor the vote.

As an important strategic partner and staunch supporter of the reform process, this demand by the EU has come as a surprise to the government of Ethiopia, as none of these elements were a bone of contention in past elections, the ministry said.

Unrest has flared in Ethiopia since Abiy began freeing up the countrys once tightly regulated political space after he came to power in April 2018. Hes given room for opposition parties and rebel groups to operate, which critics say has stoked fragmentation and long-suppressed rivalries among ethnic communities.

Voting wont take place in the northern Tigray region, where federal troops have since November been fighting dissident forces loyal to the states former ruling party. And the Oromo Federalist Congress, one of the nations biggest opposition parties, has said it wont participate in the election with its leaders Jawar Mohammed and Bekele Gerba still behind bars facing charges of terrorism and inciting ethnic violence.

Anti-government activists have flagged concerns about the nations preparedness for the polls.

The opposition Afar Peoples Party last month submitted a list of five complaints to the National Election Board of Ethiopia ranging from concerns over how voters are being registered to some of its candidates being fired from government positions.

Adding to the complexity of the situation in the Afar region are border clashes with the neighboring Somali region, which have left more than 100 people dead in recent weeks, according to government officials.

In the Amhara region, the opposition National Movement of Amhara last month raised concerns that the government has arbitrarily arrested and beaten demonstrators involved in protests held across the region against the killing of Amharans by rival ethnic militia groups.

The government is harassing and detaining Amhara youths, elders, and religious leaders who have spoken out, coordinated and led the protests for the citizens who were massacred, the group said in a statement on April 28.

Hundreds of Amhara citizens have been killed in recent months in the Benishangul-Gumuz regions Metekel zone by ethnic Gumuz militia men as well as in Oromias West Wollega and Horo Gudru zones, according to the Amhara Association of America, a lobby group documenting attacks against Amharas.

Solyana Shimeles, a spokesman for the Ethiopian National Election Board, didnt respond to questions sent by email about the oppositions grievances in the Afar region or the general conditions in the country for holding free and fair elections.

The government is also grappling with widespread inter-communal violence elsewhere in the country. The Ministry of Defence last month announced a state of emergency in the southern part of the Amhara region after gunmen killed an unspecified number of people in attacks between people belonging to the Amhara and Oromo ethnic groups.

The Prime Ministers office said last month that the government had established a National Election Security Committee comprising of the Federal Police, the Attorney General, the National Intelligence and Security Service, and the Ministry of Defence to ensure a peaceful and legitimate election.

The committee will try and identify areas where there is a risk of conflict and deal with any election-related grievances, the office said.

With assistance by Paul Richardson, and Samuel Gebre

(Updates with Ethiopian government comment in fifth paragraph)

Before it's here, it's on the Bloomberg Terminal.

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European Union Cancels Election-Observer Mission to Ethiopia - Bloomberg