Transatlantic divergence in
‘specially designed’ export controls:
A call for clarity
In 2018, the European Union produced draft guidance on the meaning of ‘specially designed’, and the Commission sought comments to help finalise a ‘common definition’, such proposed harmonisation carried out under Directive 2009/43/EC (‘Transfers Directive’), which aimed to simplify terms and conditions of transfers of ‘defence-related products’ among Member States. While the draft never became law, the need for clarity (and a system more akin to the United States’ ‘catch and release’) is needed more than ever.
In today’s shifting geopolitical landscape, export control regulations have evolved into strategic instruments that extend beyond national security. A key – but contentious – element within these controls is the definition of ‘specially designed’ items.
The United States and the European Union diverge markedly in their approach. US export controls, encapsulated in legislation including the International Traffic in Arms Regulations (‘ITAR’) and Export Administration Regulations (‘EAR’), employ a rigorous ‘catch and release’ methodology. Under this system, an item is first ‘caught’ if it is engineered or modified to meet the performance or function of a controlled product, or if it serves as a critical component or software integral to such products. Subsequently, the item can be ‘released’ based on clear criteria: for instance, if it is of lesser significance, equivalent in performance to a non- controlled item, or developed as a general-purpose commodity suitable for both controlled and uncontrolled applications. The US legislator has provided five to six releasing criteria, depending on the corpus of rules we are looking at. This structured approach provides clarity and predictability for US industry and its international partners.
In contrast, EU regulations, namely, Directive 2009/43 (on defence-related products) and Regulation 2021/821 (on dual-use items), are trapped in the non-unified structure of the Union, and do not offer a detailed definition of ‘specially designed.’ Instead, the term is mentioned as part of the relevant list of controlled items, with minimal guidance on inclusion criteria and no formal mechanism for exclusion. This ambiguity forces EU economic operators to interpret the requirements on a case-by- case basis, leading to a high degree of uncertainty. And this uncertainty is even greater for those economic operators operating in both jurisdictions with complex supply chains.
Recognising this gap, the European Commission launched a 2018 survey to explore the feasibility of a fully-fledged ‘catch and release’ system similar to the US approach and even more ambitious. Yet, it remained inconclusive, reflecting widespread confusion among industry stakeholders and hampering efforts to forge a unified European defence market.
For the transatlantic export control community, these regulatory disparities highlight an urgent need for dialogue and possibly improvement on the European side. EU policymakers must work toward standardising definitions and establishing clearer guidelines that serve both security and industrial competitiveness. Industry stakeholders also have a key role to play – they should actively engage with regulators, share best practices and advocate for a predictable EU export control framework that reduces uncertainty and facilitates both international and intra-EU trade.
The EU Competitiveness Compass highlights regulatory efficiency as crucial for Europe’s strategic autonomy, especially in the defence sector. As the EU strengthens its defence industry through initiatives like the European Defence Fund and the Strategic Compass, a predictable and harmonised export control framework is vital for compliance and competitiveness. Clarifying what is meant by ‘specially designed’ would reduce legal uncertainty for EU industry and reinforce the Union’s credibility as a global defence actor.
Credit : Fabio Ferretti di Castelferretto, Co-founder & Manager at DefenseWise SRL - Publication : WorldECR (DOW JONES) - Issue March 2025
© 2025 - All rights reserved. This article may not be shared, reproduced, disclosed, or distributed, in whole or in part, to any other party without the prior written consent of the copyright holder.
We use cookies in accordance with our