AG opinion on dual-use classification: 5 things you need to know

This is the first time the CJEU has been asked to interpret ‘dual-use items’ under Article 2(1) of the Dual-Use Regulation in this fundamental way. That provision defines dual-use items as ‘items, including software and technology, which can be used for both civil and military purposes’. This definition has governed EU export controls for years, but its outer limits have never been tested at EU level. The Advocate General illustrates the problem with a well-known example: Khrushchev once joked that trouser buttons were ‘dual-use’ goods, because a soldier holding up his trousers with one hand could only fire his weapon with the other. Most people would agree that a training aircraft is a very different case. The real question is where the line should be drawn.

Why this matters to you

The CJEU's ruling will bind export control authorities in every EU Member State. Any business that exports goods, software, or technology needs to understand how broadly or narrowly the Court will interpret the definition of ‘dual use’.

The AG proposes a low threshold: an item is capable of use ‘also for military purposes’ whenever there is any link between its potential uses and the armed forces of the destination country. The item does not need to substantively contribute to the end user's military capabilities. In practice, this means that using a training aircraft for basic military pilot training is enough to bring it within scope, even where that training is identical to civilian pilot training.

The AG gives two reasons for this. First, Article 2(1) sets no contribution threshold. Second, adding one would let items that raise security or human rights concerns escape the Regulation entirely, undermining the export controls framework.

Why this matters to you

A broad definition means a low threshold. Do not assume your product falls outside the Dual-Use Regulation just because it was designed for civilian use or has limited military utility. Get legal advice on classification early.

The AG sets out a crucial two-step framework, and each step uses different criteria. National authorities must first decide whether an item is a ‘dual-use item’ under Article 2(1), then separately decide whether exporting it raises security or human rights concerns under Article 9(1). The classification question comes first. and can be challenged before a court, independently of any later authorisation decision.

A broad definition of ‘dual-use items’ does not give Member States free rein to block trade. The law limits when they can restrict exports: under Article 9, this is only possible on security or human rights considerations.

National authorities must give reasons whenever they prohibit or restrict an export. They must explain, in the specific case, why the goods raise potential human rights or security concerns, and national courts can review whether those reasons are sufficient.

Why this matters to you

This two-step framework creates two separate points of legal risk and two separate grounds for challenge. If your export is restricted, check whether the underlying ‘dual-use item’ classification is sound: this can be challenged separately from the authorisation decision. Given the AG's broad approach to classification, the stronger grounds for challenge are likely to be at step two: whether the authority's reasons for restricting the export are adequate and proportionate.

This is the most practically important point for compliance teams. The AG makes clear that Article 2(1) revolves on an item's capability, not on proof of who will actually use it or how. Authorities need only be satisfied that the item is objectively capable of use ‘also for military purposes’.

Authorities must look at the item's physical and technical characteristics at the time of export, including whether it could objectively be repurposed for military use. They should not, at this stage, consider the intentions behind the item's design, its intended use, or its development.

At the classification stage, the AG says authorities need not consider:

• the military capabilities of the end user or recipient in the third country
• the situation in that country
• whether the end user could repurpose the item
• the risk of diversion

These factors are relevant only at the second step: deciding whether an authorisation is required.

Why this matters to you

The classification question and the authorisation question are distinct. Even if your item seems low-risk given the specific destination or buyer, it may still qualify as a dual-use item. Classification should be assessed based on what the item objectively can do, at the time of export, not on its intended use.

The AG identifies three scenarios in which an item's capabilities can make it ‘dual-use’:

• Simultaneous use: the item is useful for both civilian and military purposes at once, such as telecommunications infrastructure that carries both civilian and military communications.
• Alternate use: the item can switch between civilian and military purposes without technical modification, such as a lorry that carries potatoes one day and rifles the next.
• Dual-purpose items: the item is designed for civilian use but can be repurposed for military use.

The AG points to civilian drones and their parts as a topical example of the third category. Their physical and technical characteristics, including how easily they could be repurposed, are relevant to how they are classified.

Why this matters to you

The third category, dual-purpose items, is the most dynamic and potentially the most surprising. Everyday commercial products can become a dual-use item as military applications evolve.