In her Opinion of 24 September 2026 in case C-538/25 (Flugzeugherstellerin), Advocate General Ćapeta provided, for the first time, guidance on the interpretation of the notion of “dual-use items”. The Advocate General suggested a broad interpretation of that concept, concluding that the identification of an item as “dual-use” must be based on its objective capabilities.
The concept of dual-use is central to many defence-related regulations, and the forthcoming judgment will affect the understanding of their scope.
The legal framework governing dual-use items
A “dual-use item” is defined as an item, including software and technology, which can be used for both civil and military purposes, and includes items which can be used for the design, development, production or use of nuclear, chemical or biological weapons or their means of delivery, including all items which can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices (Article 2 of Regulation 2021/821).
Annex I to Regulation 2021/821 lists certain items considered to be “dual-use items”. Any item listed in Annex I automatically require an export authorisation.
As regards dual-use items which are not listed in Annex I, Member States may restrict their exportation in two ways, namely by (i) setting up national control lists of dual-use items for which an export authorisation is required, or (ii) deciding, on a case-by-case basis, that the exportation of certain dual-use items must be subject to an export authorisation.
Factual background
Flugzeugherstellerin (a fictitious name), an Austrian developer and manufacturer of a two-seat training aircraft offered in two configurations (aerobatic and reconnaissance), applied for an authorisation to export aircraft in the aerobatic configuration to a company in Myanmar for pilot training. These aircraft are not listed in Annex I to Regulation 2021/821.
A one-year export authorisation, subject to certain conditions, was granted to Flugzeugherstellerin. One year later, Flugzeugherstellerin applied for an “extension” of that authorisation because not all aircraft had been exported yet. That application was, however, rejected.
Flugzeugherstellerin subsequently submitted a further application for an authorisation to export those aircraft, which was again rejected. That decision was justified by the fact that the aircraft could be used for the training of military pilots, that it was technically possible to repurpose them for a different use (i.e. for reconnaissance or surveillance purposes), that the end-user of the goods at issue had been accused of persistent and systematic human rights violations, and that there was sufficient evidence to suggest that the goods at issue would be used or diverted for undesirable purposes. Flugzeugherstellerin challenged that decision.
The question therefore arose as to the interpretation of the concept of a “dual-use item” and, more specifically, the criteria to be taken into account when assessing whether a civilian item can be used “[also for] military purposes”, such as to qualify it as “dual-use”. The answer to that question is decisive in determining whether the Austrian authorities could legitimately prohibit the export of the goods at issue.
The need for a broad interpretation
According to the Advocate General, the concept of “dual-use items” should be interpreted broadly, so as to cover the full range of strategic and security considerations that may arise in the conduct of the Member States’ or the European Union’s foreign relations. Such a broad interpretation would afford the competent authorities a wide margin of discretion in assessing whether, at a particular point in time, the exportation of a particular item raises strategic and security concerns.
The identification of a “dual-use item” must be based on the potential capabilities of the item in question
The Advocate General concluded that an item is of use “[also for] military purposes” where there is any connection whatsoever between its potential uses and the armed forces of the third country concerned. It is therefore not necessary for an item to make a substantial contribution to the military capabilities of the end-user in order for it to qualify as being of use “[also for] military purposes”.
The determination of whether an item is also capable of having a military use must therefore be based on the potential capabilities of the item in question, following the Advocate General’s reasoning.
According to the Advocate General, those potential capabilities may exist in three situations:
- where the item is capable of both civilian and military use;
- where the item in question is capable of being used for civilian or military purposes and it is possible to switch between those uses without any technical modification; or
- where the item has a dual purpose, that is to say, where it is specifically designed and intended for civilian purposes but can be repurposed for military purposes.
Accordingly, the Advocate General concluded that whether an item is capable of use “[also for] military purposes” must be assessed solely on the basis of its objective capabilities and physical characteristics at the time of exportation. For the purposes of that assessment, it is not necessary to take into account the military capabilities of the end-user or recipient in the third country to which the item is to be exported, nor the situation in the third country, the ability of the end-user to repurpose the item or the risk of the item being diverted, since those considerations are relevant only for the purpose of determining whether an authorisation may be required for the exportation of that item.
It is only at a second stage, namely when determining whether the export of a non-listed “dual-use item” should be subject to an export authorisation that considerations such as the end-user, the (situation in the) country of destination, the potential for a diversion, and other factors may become relevant.
What now?
The Advocate General’s Opinion provides important guidance on the assessment to be carried out in respect of items that are not listed in Annex I to Regulation 2021/821 but may nevertheless be used for military purposes. The proposed interpretation places the emphasis on the item’s objective capabilities, while reserving considerations relating to the end-user, the country of destination and the risk of a diversion for the subsequent assessment of whether an export authorisation is required.
It is now for the Court of Justice to decide and it remains to be seen whether it will follow the Advocate General’s reasoning and endorse this broad interpretation of the concept of “dual-use items”.
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This newsletter does not constitute legal advice or a legal opinion. Please consult with a legal counsel of your choice before taking any action based on the information provided.