Recently the Dutch authorities have started adding a ‘human rights’ export license condition to the global licenses it issues for encryption items with ECCN 5A002.a.1. This condition states the following:
‘This license may not be used if the exporter is aware or has been informed by the competent authorities of the Member State where he is established, that the items in question are or may be intended, in their entirety or in part, for use in connection with violations of human rights, the democratic principles, or the freedom of speech as described in the Charter of Fundamental Rights of the European Union, where use is made of interception techniques and digital data transfer equipment for the monitoring of cellular telephones and the reading of text messages and for the specific surveillance of internet use (for example by means of control centers and legal interception gateways).’
We understand that there have been discussions on an EU level as to whether a similar condition should be added as an end-use restriction to the EU Dual-use Regulation, similar to the military and WMD end-use catch all clauses which are already included in Article 4 of same regulation. Even if such a ‘human rights’ end-use restriction will not be agreed upon on an EU level, it may very well be that other EU Member State will follow suit and will start adding similar licensing conditions.
