Regulation (EC) 1236/2005: An Overview Joris Heeren Deputy Head of Unit, FPI Service for Foreign Policy Instruments European Commission
Introduction • Plan of the presentation 1. Regulation (EC) 1236/2005 2. Amendments to the Regulation a. Amendment to Annex III list of goods (2011) b. Publication of new lists of goods (2014) c. Regulation (EU) 2016/2134 (comprehensive review of 2005 Reg) 3. Outcome and outstanding issues 4. Future steps
Regulation (EC) 1236/2005 • Subject matter and scope Trade in goods that could be used to torture , ill- treat , or execute people Trade with third countries (EU trading partners) Set of rules instrumental in promoting respect for human rights and protecting public morals
Regulation (EC) 1236/2005 • Two main trade measures 1. Trade ban a. Goods which have no practical use other than to torture, ill-treat or execute people b. Covers both imports and exports 2. Prior authorisation regime a. Goods which could be used to torture, ill-treat or execute people but also for legitimate purposes (eg medicines) b. Covers exports
Regulation (EC) 1236/2005 • How are the measures implemented? (1/2) 1. Trade ban a. Goods listed in Annex II b. Prohibition covers movement of goods (imports/exports) c. Prohibition covers also technical assistance i. Technical support (eg repairs, maintenance) ii. Technical services (eg training, sharing of know-how) iii. Both verbal and by electronic means
Regulation (EC) 1236/2005 • How are the measures implemented? (2/2) 2. Prior authorisation regime a. Goods subject to license regime listed in Annex III b. Exports prohibited unless preliminarily authorised i. No license = no export ii. Case-by-case decision iii. Delegated to national authorities iv. Determined on reasonableness grounds
2011 Amendment • Amendment of Annex III list of goods 1. Trade measure a. Introducing prior authorisation regime for exports i. Substances covered medicinal products (eg sodium thiopental) used in lethal injections ii. Countries covered third countries that have not abolished the death penalty 2. Endorsed by EU pharmaceutical industry
2014 Amendment • Publication of new lists of goods 1. New Annex II ( ‘goods with no use other than’ ) Broadens categories of goods and adds new goods to which the ban on imports and exports is applied 2. New Annex III ( ‘goods that could be used for’ ) Broadens categories of goods and adds new goods to which the export authorisation regime is applied
Regulation (EU) 2016/2134 (1/7) 1. General export authorisation A. What exports? a. Exports to state parties to international conventions on capital punishment (applying to all exporters ) B. Conditions a. Country of destination abolished death penalty for all crimes b. Goods are not re-exported to other countries where the death penalty still applies
Regulation (EU) 2016/2134 (2/7) 2. Brokering services A. What activities? a. Transfer of goods located in third countries i. Purchase, sale or supply ii. Negotiation or arrangement of transactions for purchase/sale B. Trade measures a. Prohibiting brokering services of goods listed in Annex II b. Introducing prior authorisation regime for brokering services related to goods listed in Annex III and Annex IIIa
Regulation (EU) 2016/2134 (3/7) 3. Technical assistance A. What activities? a. Supply of (i) technical support (eg maintenance) and (ii) technical services (eg training) same as in Regulation 1236/2005 B. Trade measure a. Introducing prior authorisation regime for technical assistance related to goods listed in Annex III and Annex IIIa N.B. The supply of technical assistance for goods listed in Annex II banned in 2005
Regulation (EU) 2016/2134 (4/7) 4. Transport of goods in transit A. What activities? a. Transport within the customs territory of the EU of non-Union goods passing through it and destined to third countries B. Trade measures a. Prohibiting transport of goods in transit if listed in Annex II b. No ban on transport of goods in transit if listed in Annex III and Annex IIIa unless economic operator has some information about their use for torture or capital punishment in the country of destination
Regulation (EU) 2016/2134 (5/7) 5. Promotion and advertising A. What activities? a. Promotion at exhibitions and trade fairs in the EU b. Advertising in print, online, on TV, etc B. Trade measures a. Prohibiting display or offer for sale in the EU of goods listed in Annex II b. Prohibiting sale or purchase of advertising space or time from within the EU in relation to Annex II goods
Regulation (EU) 2016/2134 (6/7) 6. Anti-Torture Coordination Group A. Composition a. One representative per Member State b. Chaired by a representative of the Commission B. Function a. Examines questions re application of the Regulation i. Exchange of information on administrative practices b. Can consult relevant stakeholders (eg exporters, brokers) c. Submits annual report to European Parliament
Regulation (EU) 2016/2134 (7/7) 7. Urgency procedure A. When? a. New goods for torture or capital punishment are developed b. Clear and immediate risk goods will be used for these ends B. How does it work? a. Fast track procedure amendment i. Lists of goods ii. List of countries benefiting from general authorisation b. Parliament and Council maintain right to scrutiny of delegated act (ie act adopted by the Commission)
Outcome • Anti- torture regulation … 13 years later Sets benchmark against which trade in goods designed to inflict torture, capital punishment or cruel, inhuman or degrading treatment is measured, worldwide Addresses new challenges (see amendments) Refines legal framework not to interfere unduly with ordinary trade practices (eg supply of medicines)
Outstanding issues (1/2) • Activities of EU nationals abroad? A. Brokers and suppliers of technical assistance supplying services from a third country Currently not covered by the anti-torture Regulation B. Possible inclusion as a result of review process In mid-2020 and, thereafter, every five years
Outstanding issues (2/2) • Torture end-use catch-all clause? A. Proposed by Parliament clause allowing national authorities to license or refuse exports of any items which pose a substantial risk of being used for torture, ill- treatment or capital punishment B. Legal issues inconsistent with (i) Art 207 TFEU and (ii) Art XX(a) GATT 1994 C. Practical objections issues re information gathering
Future steps • Codification proposal (Commission, May 2018) A. Proposal for adoption of new regulation a. Incorporating amendments b. Superseding acts incorporated in it c. Fully preserving the content of acts being codified B. Reasons a. Clarity legal certainty b. Transparency rules readily understandable
Thank you! Joris Heeren Deputy Head of Unit, FPI Service for Foreign Policy Instruments European Commission joris.heeren@ec.europa.eu
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