EU Human Rights Export Controls Shift Authority From Legislatures to Agencies, Law Firm Says

New European Union export controls on dual-use goods meant to promote human rights have the effect of shifting legislative authority from a member state's legislative body to its regulatory arm, Sheppard Mullin said in a May 14 analysis. Officially passed on March 26, the human rights export controls allow, among other things, a member state to impose a prohibition on the exports of items not on the Dual-Use Control List for human rights considerations. Subsequently, other member states are also prohibited from making unlicensed exports of these items if they have been notified by the appropriate competent authorities that the items are intended to be used for human rights violations. “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),” Sheppard Mullin said.

Elsewhere in its report, the law firm breaks down the additional powers granted by the new governing regulation to the EU to impose human rights-related export controls. Additional measures in the regulation include greater restrictions on cyber-surveillance items, an EU-level coordination mechanism on the export of cyber-surveillance items, two new general export authorizations on software and controlled encryption items, new controls on technical assistance for dual-use items, and new public reporting rules.

Sheppard Mullin said the definition of “provider of technical assistance” is broad. Its inclusion of “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” is “revolutionary” for the EU, the law firm said, since it in effect creates a new “deemed export” control. Due to this language, Sheppard Mullin said, the control will act like its U.S. counterpart.