A Shift Towards Unilateralism? An Analysis of National Export Controls on Dual-Use Items under EU Law

Sammanfattning

This thesis examines the constitutional limits of export controls adopted at the initiative of Member States under Regulation (EU) 2021/821 (the “Dual-Use Regulation”) on dual-use items. In particular, it analyses Articles 4, 5, and 9 of the Regulation and how they function within the Common Commercial Policy (CCP) under Article 207 TFEU, an area of exclusive Union competence. The study examines the legal mechanisms within the Dual-Use Regulation that allow Member States to adopt national export control measures and authorisation requirements, the scope of discretion afforded to them in determining the relevant legal grounds for national export controls and the compatibility of such measures with the constitutional framework of the Common Commercial Policy.In the absence of case law from the Court of Justice concerning the relevant Articles, the thesis is supplemented by an examination of selected national case studies and publicly available statements in order to illustrate how Member States have implemented and justified export controls in practice. The analysis is conducted using a doctrinal legal method and interprets the relevant provisions in light of Member State practice, the preamble to the Regulation and the constitutional framework of the Common Commercial Policy.The findings indicate that the catch-all mechanisms, in particular Article 5, grant Member States a degree of discretion, but this discretion is limited by their transaction-specific nature and by coordination mechanisms embedded in the Regulation. By contrast, Article 9 allows Member States to adopt national control lists based on a broader range of rationales, extending from traditional security and human rights concerns to considerations relating to technological and strategic interests. The growing use of national export controls within a framework that emphasises coordination and operates in an area of exclusive competence underscores the importance of effective coordination and a careful interpretation of the permitted grounds in order to maintain coherence within the Common Commercial Policy.