How a trouser button becomes a dual-use item before the CJEU

Exporting dual-use items is subject to considerably stricter requirements than exporting purely civilian items. So just how military does an item have to be to qualify as dual-use? The Court of Justice of the European Union (CJEU) is now considering this question for the first time. In her recently published Opinion, the Advocate General advocates an extremely broad interpretation of the concept of dual-use items – with potentially far-reaching consequences for exporters.

From trouser button to training aircraft

A trouser button as a dual-use item? When the West imposed strict export restrictions on the Soviet Union during the Cold War, Nikita Khrushchev is said to have objected that every item has a dual use – even a trouser button: without it, soldiers would have to hold up their trousers and would have no hand free to shoot.

In proceedings currently pending before the CJEU, the question is more complex. In those proceedings, an Austrian company wishes to export training aircraft as well as aircraft parts and technology for the construction of the model to Myanmar. The aircraft are built for pilot training in general aviation and for aerobatics and are neither designed for military purposes nor equipped with military components. In Myanmar, however, military pilots are also to complete their basic training on them.

While the Ministry of Economic Affairs initially authorised the export and some of the items were exported, it refused to extend the export authorisation. The Myanmar Air Force was accused of systematic human rights violations, and the aircraft could be used not only for pilot training but also for reconnaissance and surveillance flights. The aircraft manufacturer lodged an appeal against this with the Federal Administrative Court.

The key question: dual-use or not?

The central question before the Federal Administrative Court is whether the aircraft, aircraft parts and technology are dual-use items. For only then can Austria prohibit their export to Myanmar for human rights considerations under Article 9 of the Dual-Use Regulation (EU) 2021/821. The Regulation’s definition is extremely broad: dual-use items are ‘items, including software and technology, which can be used for both civil and military purposes’.

For the Ministry of Economic Affairs, the aircraft are dual-use items because they would also be used for the training of military pilots and are suitable for reconnaissance and surveillance flights. The aircraft manufacturer objects that this interpretation would make the concept all-encompassing, because every item can ultimately serve the armed forces – Khrushchev’s trouser button sends its regards. The aircraft, it argues, are of civilian design, and military conversion is ruled out, in particular because of the adaptation of the avionics that this would require. In the absence of relevant case-law, the Federal Administrative Court referred the question to the CJEU for a preliminary ruling.

Dual-use without limits?

The Dual-Use Regulation distinguishes between two types of dual-use items: the export of listed items to third countries automatically requires an export authorisation. Member States may, for human rights considerations or for reasons of public security, subject the export of non-listed items to an authorisation requirement or prohibit it. The prerequisite is, first, that the items are dual-use items and, second, that the intended export may raise issues for security or for the protection of human rights. Advocate General Ćapeta has now taken a position on the first question.

The Advocate General first made clear that items specifically designed for military purposes are not dual-use items – but rather single-use items. Nor are purely civilian items dual-use items, because they can never also be used for military purposes.

Nevertheless, the Advocate General, also taking security policy considerations into account, argued for an extremely broad interpretation of the concept of dual-use. She rejected the view of the Netherlands Government that a dual-use item must make a significant contribution to the capabilities of the armed forces. Nor, in her view, does it matter whether the item is relevant to the tasks ordinarily carried out by the armed forces; rather, any link between the item’s potential uses and the armed forces suffices. Accordingly, the use of the training aircraft for the basic training of military pilots suffices, even if that training does not differ from the training of civilian pilots.

Furthermore, what matters is not whether an item is actually used for military purposes, but solely its objective, potential capability for such use. Khrushchev’s trouser buttons could therefore also be regarded as dual-use items, the Advocate General concludes.

What companies need to understand 

Although the CJEU has not yet decided the matter, it generally follows the Advocate General’s Opinion. In that case, there is a risk of far-reaching consequences for exporting companies. For if it does not matter who uses a product and for what purpose, almost any product can be a dual-use item – such as chips for civilian drones previously regarded as off-the-shelf, or even remote-control systems for toy cars.

The good news: this does not mean that an authorisation is required for the export of every trouser button. Only the export of listed items continues to be automatically subject to authorisation. If, on the other hand, the authority wishes to subject the export of non-listed items to an authorisation requirement under Article 9 of the Dual-Use Regulation, it must additionally demonstrate the existence of reasons of public security or human rights considerations. This partly puts the practical consequences of the broad interpretation into perspective.

On the negative side, the broad interpretation increases legal uncertainty. For the countless non-listed items, there is a risk that an export control authorisation requirement will be imposed shortly before their export – even if they are not subject to one today. Moreover, the conditions for doing so are vague. It is therefore conceivable that the export of the same item is subject to authorisation in one Member State, while the neighbouring State does not require an authorisation.

In addition, the imposition of an authorisation requirement can considerably delay export procedures. For in Austria, the authority first initiates an ex officio authorisation procedure by way of a decision, against which an appeal may be lodged, and only decides on whether the authorisation can be granted by way of a second decision. It may therefore take several months, if not years, before the export authorisation is obtained.

Future-proof your exports with CMS

Companies should therefore examine whether their export items may be subject to an authorisation requirement and safeguard their export processes accordingly. CMS has been providing comprehensive advice on export control and sanctions law for many years – from the classification of items and authorisation procedures to representation before authorities and courts. We will be happy to assist you with any questions regarding the classification of your products as dual-use items.

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CJEU, Opinion of AG Ćapeta of 24 September 2026, Case C‑538/25 (Flugzeugherstellerin)