Legal Foundations of European Union Law II Tutorials Karima Amellal

Dual-use goods The Council of the EU wants to enact a regulation which establishes new rules concerning export controls on dual-use goods. Goods and technologies are considered to be dual-use when they can be used both for military and civil purposes. The proposal submitted by the Commission contains a list of controlled dual- use goods. The regulation states that controlled items may not leave the EU customs territory without an export authorization.

Question 1: Which general principles determine whether the EU has the legislative competence to enact the regulation?

Legislative Competence 1. Principle of conferral, Art. 5 (1), (2) TEU: The EU must have a legal basis within the Treaties for every legal act it adopts. Does the Treaty expressly confer on the Union the competence to act in this field?

Art. 207 TFEU: Competence of the Union in the field of the Common Commercial Policy Scope of the Common Commercial Policy: International trade relations of the EU, including the exchange of goods with non-EU-Members Thus: Rules on the export of dual-use goods fall within the scope of the CCP

2. Principle of institutional balance, Art. 13 (2) TEU Which institution has the power to enact the regulation? Competence of the EP or the Council or jointly? Art. 207 (2) TFEU: The EP and the Council shall act

3. Form of legal action According to the principle of conferral, the EU and its institutions are only empowered to act in the form which the legal basis for the act permits. Observed by the EU institutions: Art. 207 (2) TFEU refers to regulations (see Art. 288 (2) TFEU)

Question 2: The European Parliament proposes a few amendments to the list of controlled goods. The Council rejects the amendments and has further objections regarding the regulation. The majority of the Member States fears that the restrictions will have harmful effects on EU trade relations. Consequently, the Council adopts its own position reducing the number of goods subject to export controls. Afterwards, the Council communicates its position to the European Parliament.

Course of the legislative procedure What happens if, within 3 months of such communication, the European Parliament has not taken a decision? Art. 294 (7) lit. a TFEU applies: The act concerned shall be deemed to have been adopted in the wording which corresponds to the position of the Council.

What happens if, the European Parliament rejects by a majority of its component members the Council’s position? Art. 294 (7) lit. b TFEU applies: The proposed act shall be deemed not to have been adopted

c) What happens if, the European Parliament proposes, by a majority of its component members, amendments to the Council‘s position and the Council does not approve all amendments? Art. 294 (8) lit. b TFEU applies: A meeting of the Conciliation Committee shall be convened by the President of the Council in agreement with the President of the European Parliament. For further proceeding see Art. 294 (13) TFEU