Background
The Swedish Parliament and Government have decided to implement several amendments to the Act (2000:1064) on the control of dual-use items and technical assistance and to the Regulation (2000:1217) on the control of dual-use items and technical assistance (collectively referred to as the Swedish dual-use regulations). The changes are the result of, and contain additional provisions to, the new EU regulation 2021/821 on dual-use, which entered into force in September 2021.
Development
(a) What is the new development?
Increased mandate to decide on authorization requirements
According to the EU Regulation No 2021/821 ("Dual-Use Regulation"), the National Inspectorate of Strategic Products (ISP) may decide on authorization requirements for the brokering and transit of and provision of technical assistance for dual-use item listed in Annex I to the Dual-Use Regulation in certain cases. Through the changes in the Swedish dual-use regulations, the ISP will also have the mandate to make decisions on authorization requirements for the brokering and transit of and provision of technical assistance for dual-use items that are not listed in Appendix I, i.e., the "catch-all" provision set out in Article 4 of the Dual-Use Regulation.
Obligation to notify ISP
Today, there is a requirement for exporters of non-listed dual-use items and cyber-surveillance items, as well as brokers of dual-use and providers of technical assistance for dual-use, to notify the ISP if they are aware that these items, in whole or in part, are or may be intended for mass destruction weapons programs, military end-use in a country subject to an arms embargo or can be used as components for munitions that have been exported from the EU without an authorization.
Through the changes in the Swedish dual-use regulations, the obligation to notify will be extended. Exporters, brokers or providers will thus be required to notify the ISP if they have reason to suspect that the dual-use items - both items listed in Annex I to the Dual-Use Regulation and those not listed - to be exported or provided or the technical assistance which are to be provided in whole or in part, are or may be intended for the reasons above. After being notified, the ISP shall examine and decide whether an authorization shall be required in the individual case.
Authorization requirements for the transfer of dual-use within the EU
The ISP will also have an increased mandate to decide on authorization requirements for transfers of dual-use items within the EU. This applies to dual-use items that normally only require an authorization for exports from the EU and in the situations specified in Article 11 (2) of the dual-use regulation (e.g., the operator or the competent authority knows that the final destination of the items concerned is outside the customs territory of the Union).
Other changes
Additionally, a provision will be introduced prohibiting the use of the EU's general export authorization EU007 if the exporter has reason to believe that the dual-use items in question are to be re-exported or are intended for any use prohibited under the authorization.
Furthermore, the ISP is authorized to issue regulations regarding reporting requirements when using all of the EU's general export authorizations.
(b) What should companies do?
Swedish companies dealing with dual-use items should consider the new Swedish dual-use regulations in order to make sure that they are compliant with all the requirements.
In particular, companies should be aware of the extended requirement to notify ISP, as the threshold for notifying the ISP has been lowered.
1 SFS2022-1074 (svenskforfattningssamling.se); SFS2022-1075 (svenskforfattningssamling.se).
