Challenges and opportunities for the EU-CAN trade relations Intellectual Property, Technology Transfer and the EU Dual-use items Exports Control regime

Abstract

The subject of Dual-use Research and Innovation (R&I) is a matter of current debate within the European Union (EU). Debated issues include research collaboration with third countries and qualification as a Dual- use technology as covered under the Export Controls Regulation (EU) 2021/821 and its Annex I. On one hand, it is important for the EU’s security interests to restrict Transfer of Technologies in these sensitive fields, while on the other, it is also important to collaborate with other States that share the same interests and promote the Transfer of Technology. One of the examples where this situation can be found is the Trade Agreement signed between the EU and the Andean Community countries in 2012 (Colombia and Peru) and 2016 (Ecuador), where the protocol of accession was recently concluded under the Council Decision (EU) 2024/2728 of 14 October 2024. Interestingly, Article 255 of the Intellectual Property Title of this Agreement mentions that the Transfer of Technology between the parties shall consider the Dual-use Export Controls regime. This consideration may be understood as a tension between the competing objectives of restricting sensitive technologies and promoting their transfer. Considered this provision of the Trade Agreement, the question arises as to whether robust Export Controls regulations are compatible with treaty-based trade relations. In addressing this question, this paper will assess the compatibility of the EU Export Control regime with relevant World Trade Organization (WTO) law, mainly the General Agreement on Tariffs and Trade (GATT) and the Trade Related Aspects on Intellectual Property Rights (TRIPS) Agreement. This analysis will be done on both the sides of the Trade Agreement. Section 1 provides an overall introduction to the issue. Section 2 then mentions the main legal issues in the EU legal framework and the EU–Andean Community Trade Agreement. In Section 3, the concepts of Critical Technologies, Dual-use technologies and Dual-use R&I are discussed. Section 4, then focuses on the relevance of Transfer of Technology and Biotechnology, as well as Intellectual Property (IP) and TRIPS Agreement. In Section 5, the possible intersections and clashes between these different legal instruments and issues is discussed. Finally, conclusions are drawn in Section 6.