When it was realized that certain civilian components could naturally be used to produce nuclear, chemical, or biological weapons, steps were taken to regulate not only the trade in the weapons themselves, but also the components used to manufacture them. This process continued, but it was quickly realized that it was difficult to distinguish which products could be used for military purposes and which could not.
A good example of this is that even a layman now realizes that optometric devices can be used in both smartphones and combat drones. Drones themselves, including budget-friendly ones, were not long ago perceived as devices for filming and photographing from any perspective; today, they remain one of the most important weapons on the modern battlefield.
The same manufacturer can therefore produce a product that has both civilian and military uses. This is precisely why the way certain products are traded and operated in the market has had to be restricted. These products are "dual-use goods .
Trade in dual-use goods is regulated by both EU and national law. Pursuant to the Regulation of the European Parliament and of the Council of 20 May 2021 establishing a Union regime for the control of dual-use exports, brokering, technical assistance, transit and transfer , "dual-use items" means items, including software and technology, that can be used for both military and civilian purposes, and includes those that can be used in the design, development, production or use of nuclear, chemical or biological weapons, or their means of delivery, including all items that can be used both in non-explosive applications and in any way to support the manufacture of nuclear weapons or other nuclear explosive devices .
Importantly, and worth emphasizing, within the meaning of the Regulation, "export" refers not only to the physical departure of goods from the customs territory, but also to the transfer of software or technology via electronic means of communication—including fax, telephone, email, or any other electronic means. In other words, it is legally prohibited to call a colleague in Damascus, Tehran, Moscow, or any other location outside the European Union to verbally convey details about dual-use . Even if we don't export a given product, we can do something equally harmful—transfer technology, resulting in person X producing the product themselves according to our instructions.
Furthermore, negotiating dual-use products without authorization—on behalf of a third party—remains prohibited. Therefore, in cases where a transaction takes place between third parties outside the European Union, and we act as an intermediary or negotiator in that transaction, appropriate authorization is also required.
The same applies to providing technical assistance services, including repairs, development, production, assembly, testing, maintenance, and any other technical services, such as instruction, consulting, and training. Therefore, if a given component can be used not only in civilian applications but also, for example, in the production of ballistic missiles, we cannot sell it without appropriate permits, but we also cannot provide so-called "support" .
Obviously, speaking of "ballistic missile components" sounds extremely abstract – and it might seem that we don't deal with such goods on a daily basis. Nothing could be further from the truth – because in reality, the term "dual-use goods" covers products such as lathes, milling machines, grinders, turbochargers, bearings, gyroscopes, telecommunications equipment, deep-hole drills, metal powders and alloys such as niobium, titanium, aluminum, and even pipes and gaskets.
The Polish legislator provided for criminal liability for illegal trade in dual-use in the 2000 Act on Foreign Trade in Goods, Technologies and Services of Strategic Importance for State Security and for Maintaining International Peace and Security :
"Whoever trades without a permit or even unintentionally, contrary to the conditions specified in the permit, shall be subject to imprisonment from one to 10 years."
It is worth noting that the aforementioned Article 33(1) of the Act also penalizes unintentional commission of a prohibited act – which is also punishable by imprisonment from one to 10 years. For comparison, unintentional manslaughter is punishable by imprisonment from three months to five years. In the case of the unintentional crime of unlawful trade in dual-use , we are talking about an extremely severe sanction, as provided by the Polish legislature – a more severe sanction for an unintentional type of crime is only provided for the financing of a terrorist offense, as defined in Article 165(a) of the Penal Code.
It should be noted here that, according to the Code of Criminal Procedure, being charged with committing an offense punishable by imprisonment for a maximum of at least eight years constitutes a sufficient basis for applying pre-trial detention. Therefore, even the suspicion of unintentional commission of the offense of unlawful trade in dual-use opens the possibility of applying pre-trial detention to the suspect – even if there are no other grounds for applying this measure in the case.
Criminal provisions concerning the trade in dual-use are therefore unique in Polish criminal law—controversial and often ignored. It is only the situation beyond our eastern border, demonstrating how easy it is today to construct various types of weapons—from seemingly civilian components—that demonstrates that, in reality, dual-use are encountered almost everywhere.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of June 12, 2024
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