ITAR and the EU dual-use regulation: two control logics to master

Two regimes, two scopes

Export control in aerospace and defence rests on a basic distinction: defence articles on one side, dual-use items on the other. The former are designed or modified for military use; the latter are civil products, software or technologies that could have a military application. That boundary is not drawn in the same way on both sides of the Atlantic, which forces industry to reason in parallel.

In the United States, the International Traffic in Arms Regulations (ITAR) are codified in Title 22 of the Code of Federal Regulations, Parts 120 to 130. They are administered by the State Department and built around the United States Munitions List (USML), set out in Part 121. Part 123 governs licences for export and temporary import, and its § 123.9 deals specifically with re-exports and retransfers.

In the European Union, Regulation (EU) 2021/821 of 20 May 2021, a recast of the Union regime, governs the control of exports, brokering, technical assistance, transit and transfer of dual-use items. Published in the Official Journal on 11 June 2021, it is directly applicable in every Member State. Its reference list, Annex I, is organised into ten categories numbered 0 to 9. Military goods remain outside its scope: they fall under national regimes, with the harmonised framework of Directive 2009/43/EC for intra-Community transfers.

Origin-based versus destination-based logic

The most structural difference lies in territorial reach. ITAR follows US articles and technical data wherever they go: a USML-listed component integrated into a European system remains subject to US law, and its re-export or retransfer to a third party in principle requires prior US authorisation. For an integrator, a single ITAR sub-assembly can therefore determine whether the finished product can be exported.

The European regulation reasons primarily from export outside the Union. Intra-EU transfers of dual-use items are in principle free, except for items listed in Annex IV, which remain subject to authorisation. The text also contains a "catch-all" clause (Article 4): an authorisation may be required for an unlisted item when the competent authority informs the exporter of a sensitive end-use risk, notably military end-use in a country under an arms embargo. An exporter aware of such a use must report it.

Intangibles, a frequent blind spot

Both regimes cover technology, not just hardware. For a maintenance shop or a design office, this is often where the risk lies:

• technical data sent to a foreign subcontractor or customer (manuals, drawings, repair procedures);
• technical assistance, which Regulation 2021/821 defines and subjects to authorisation in certain circumstances, as it does brokering;
• exchanges via email, collaborative platforms or cloud storage, which count as transfers under the regulations.

The European regulation provides exemptions, notably for information in the public domain and basic scientific research. It also establishes Union general export authorisations (Annex II), available to any exporter meeting their conditions, which lightens the administrative burden for routine flows.

Building a compliance programme

For a European manufacturer, compliance involves a few recurring workstreams:

• classifying every product, piece of software and data package against both lists, and documenting the reasoning;
• tracing the origin of US components and data received from suppliers, to identify re-export constraints;
• screening customers, destinations and end users before any offer;
• training sales, procurement, engineering and MRO teams, who are on the front line;
• retaining records of licences, classifications and exchanges in order to respond to an audit.

In France, licences are issued by the national administration competent for each regime, with separate procedures depending on whether the item is war materiel or a dual-use item. In all cases, primary responsibility lies with the exporter.

A competitiveness issue

Beyond the risk of penalties, mastering these rules has become a commercial argument. Export customers are questioning suppliers ever earlier about the regulatory status of equipment, and lead times for authorisations weigh directly on delivery schedules. Anticipating classification at the design stage, rather than at the point of shipment, remains the best way to prevent an export constraint from turning into an industrial roadblock.