If you deal with research and development that can be used for civilian and military purposes, you deal with Dual Use.
It needs to be assessed in every respective case if the topic falls under the definition of Dual Use or not.
It is the responsibility of the individual researcher to assess products, including know-how, as to whether these are to be considered as Dual Use products and whether they would fall under export restrictions, which may include restrictions on publication and other dissemination. Watch the videos below for an explanation of Dual Use or scroll further down to dive into the legislation.
Dual Use Products
The list of Dual Use products is stipulated in the Regulation 2021/821, UK and is not exhaustive. This means that if a product is not directly included into the list – it can still be subject to restrictions of Dual Use regulations
In case a Product falls under the definition of Dual Use products – any dissemination of such Product (including publications) may be considered as export and thus require authorization. A researcher should, in such cases, apply for an Export Permit.
The consequences of non-compliance with the Dual Use regulations could result in criminal liability in the form of a fine or imprisonment of 2-8 years (cf. Executive Order No 635 of 9 June 2011 on exports of dual-use items and technologies).
The audits of compliance with the Dual Use regulations are conducted by the Danish Business Authority (see more details below).
Dual Use Definitions
Category 0: Nuclear materials, facilities and equipment
Category 1: Special materials and related equipment
Category 2: Materials processing
Category 3: Electronics
Category 4: Computers
Category 5: Telecommunications and “information security”
Category 6: Sensors and lasers
Category 7: Navigation and avionics
Category 8: Marine
Category 9: Aerospace and propulsion
Compliance
Compliance with the requirements of the Regulation consists of three main steps:
1. Checking with the List of Dual Use Products stipulated in the Regulation (in case of doubt – consult with the Head of Department).
2. If the Product falls under the definition of Dual Use Products – file a request for an Export Permit together with the Head of Department.
3. Be ready for potential inspections from the Danish Business Authority. This can best be done by saving all the documents (emails, receipts, invoices, contracts etc.) connected to Dual Use Products, or the Products that are not Dual Use but could be subject to audit.
Read expert analysis on the inspections by the Danish Business Authority here:
‘Inspection visits in dual-use cases and EU sanctions’ by Sara Schjørring
Assessement and Export Permits
The List of Products subject to limitations as Dual Use changes approximately once a year. Thus, it is important to check the official current list of respective Products beforehand. Guidelines on the List from the Danish Business Authority can be found here.
To assess your item for Dual Use – find the category of respective item in the List in the Regulation 2021/821, UK and read thoroughly through the kinds of items that constitute Dual Use Products. If you see that your item falls under one of the Dual Use Products – you need an Export Permit to publish or disseminate it in any way.
According to the current version of the Regulation categories 1 to 9 of this list do not control "software" which is any of the following:
a. Generally available to the public by being: 1. Sold from stock at retail selling points, without restriction, by means of: a. Over-the-counter transactions; b. Mail order transactions; c. Electronic transactions; or d. Telephone call transactions; and 2. Designed for installation by the user without further substantial support by the supplier;
b. "In the public domain"; or
c. The minimum necessary "object code" for the installation, operation, maintenance (checking) or repair of those items whose export has been authorised.
Always check with the current List when assessing your items.
In case of doubt if the Product is a Dual Use Product – consult with the Head of Department for an assessment.
According to the Danish Business Authority ‘Only in cases where there exists definite critical information about the end-use of products will the Authority require that exporters apply for an authorization’ (Export Permit)
In cases of filing a request for an Export Permit – it is possible to hear the result in two weeks, or a few weeks in some complicated cases. Thus, this timeframe needs to be considered, together with the possibility of receiving denial of an Export Permit.
Even after receiving an Export Permit, the exporter has the responsibility ‘to make sure that the dual-use product or technology they intent to export will not be used in connection with weapons of mass destruction, military use in countries subject to an arms embargo, violation of human rights, and other unwanted purposes’. Read more here.
Links and legislative acts
of 20 October 2021
amending Regulation (EU) 2021/821 of the European Parliament and of the Council as regards the list of dual-use items
This regulation changes the Annexes to the Original Regulation 2021/821 as to the items that fall under the definition of Dual Use Products.
If you have assessed your Product (or filed a request for an Export Permit) before the effective date of this document, please use the previous version of the List of Dual Use Products from Regulation 2021/821.
If you are assessing items for Dual Use characteristics after the effective date of this Regulation 2022/1 – assess them based on the last consolidated version - link
of 20 May 2021
amending a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items (recast)
Effective version of the Regulation (including all further amendments for 28 November 2022) - link
With date of effect: 27/08/2009
Regulation (EC) No 428/2009 is repealed.
For authorisation applications made before 9 September 2021, the relevant provisions of Regulation (EC) No 428/2009 shall continue to apply.
Questions or comments about this web page can be put to Head of Department of IMADA Martin Svensson (svensson@imada.sdu.dk) or Specialist Consultant at the Faculty of Science Olena Zhylinkova (olen@sdu.dk).