January 14, 2022

US and EU Export Control Cooperation under the US-EU Trade and Technology Council

Public Comments of Kevin Wolf, Emily Kilcrease, and Jasper Helder Regarding Areas and Priorities for US and EU Export Control Cooperation under the US-EU Trade and Technology Council

Ref: Docket No. 211123-0244, XRIN 0694-XC088

January 14, 2022

This paper is in response to the requests for comments from the Bureau of Industry and Security (BIS) and the Directorate General for Trade of the European Commission (DG TRADE) to help inform the work of the US-EU Trade and Technology Council (TTC) Export Control Working Group (ECWG). We are not proposing or opposing new controls on specific items, end uses, and end users. Rather, our primary purpose is to help guide and inform public discussion of the ECWG’s efforts by describing:

I. What export controls are and are not, and what basic export control terms mean;

II. Why Annex II to the U.S.-EU TTC Inaugural Joint Statement reflects a significant evolution in the role and purpose of dual-use export controls and why equally significant changes in law and policy, particularly by EU member states, will be required to implement the additional, non- traditional types of controls referred to in the Joint Statement;

III. What, for the sake of context, the traditional scope and purpose of US and EU member state multilateral controls has been, i.e., to regulate the proliferation of weapons of mass destruction (WMD), conventional weapons, and the commodities, software, and technologies necessary to develop, produce, or use them;

IV. Why the US has considerably more legal authority and practice in developing and implementing controls outside traditional controls based on multilateral regime objectives;

V. What the EU and EU member state legal authorities are for imposing controls outside the scope of the multilateral export control regimes, which are basically limited to controlling items “for reasons of public security, including the prevention of acts of terrorism, or for human rights considerations” or if within the scope of a WMD or arms embargo-related “catch-all;”

VI. What the US would need to do to implement the types of new controls referred to in Annex II of the US-EU TTC Inaugural Joint Statement; and

VII. What the European Commission (EC) and EU member states would need to do to implement the types of new controls referred to in Annex II of the US-EU TTC Inaugural Joint Statement.

BIS and DG TRADE have asked for comments about how to make the existing US and EU export control regulations, policies, and practices more transparent, efficient, effective, and convergent. In response to this request and to help achieve these objectives, Section VIII below sets out questions the US, the EC, and the EU member states could consider answering among themselves or publicly. The topics at issue in our list of questions can also be used as a guide for others wanting to make recommendations for specific changes to the export control regulations and policies of the US, the EU, or EU member states.

We recognize that the relevant government officials in the US, the EC, and the EU member states may be familiar with some or all the information in this comment. We nonetheless pull the information and questions together in one place for the benefit of creating a resource for interested parties in industry, think tanks, the media, academia, trade associations, commissions, and other parts of the respective governments. We have also embedded hyperlinks throughout this document to provide support for statements made and to be used as links to additional resources on the topics underlined. Until recently, export controls had not been discussed much outside a relatively small group of subject matter experts and practitioners. Our hope is that efforts such as this comment will help create a baseline of facts, citations, history, questions, issues, and informed commentary to facilitate the public discussion about how and whether export controls should be used differently than their traditional uses to address contemporary policy issues. Although this is a comment in response to a joint US-EU effort, the work product is equally useful in analyzing possible plurilateral controls and bilateral efforts involving other allied countries.

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