In practice, it is often difficult to distinguish between dual-use items and purely civilian goods. However, this distinction can be crucial, as a recent case demonstrates. The proceedings raise the question of whether aircraft used for general pilot training constitute dual-use items if soldiers are trained on them. At its core, the issue concerns the question of how “military” a good must be to be classified as a dual-use item.
What has happened? An aircraft manufacturer wishes to export aircraft and a flight simulator to Myanmar (Burma) for pilot training. The aircraft are designed for pilot training in general aviation and aerobatics. They are neither designed for military use nor equipped with military components. In Myanmar, however, military pilots are also to undergo their basic training on the aircraft. In addition, aircraft parts and technology are to be exported to Myanmar.
Initially, the authority approved the export in a procedure initiated ex officio. The aircraft manufacturer subsequently exported some aircraft, the flight simulator and part of the aircraft parts and technology to Myanmar. The aircraft manufacturer now wishes to export the remaining aircraft and items. However, the authority prohibited this by means of a decision. The aircraft manufacturer lodged an appeal against this with the Federal Administrative Court.
What is the legal issue? The Myanmar military uses its air superiority to indiscriminately bomb civilian areas. Due to systematic human rights violations, an arms embargo is in place against Myanmar. Although the embargo directly prohibits only the export of defence-related products to Myanmar, it may also apply to dual-use items, but not to purely civilian goods.
Whilst the aircraft and other goods are not defence-related products, it is disputed whether they are dual-use items. This is crucial. For whilst the export of purely civilian goods is generally not subject to export controls, dual-use items are subject to the export restrictions of the EU Dual-Use Regulation 2021/821 and the Austrian Foreign Trade Act (Außenwirtschaftsgesetz – AußWG).
What applies to the aircraft? The aircraft manufacturer takes the view that the aircraft and other items are purely civilian goods. The aircraft is generally designed for pilot training and not specifically for the training of military pilots. Although military pilots are trained on the aircraft, they only complete their basic training on the type, which does not differ from the training of civilian pilots. Furthermore, conversion of the aircraft for military purposes is impossible, as this would require, for example, an adaptation of the avionics.
The authority considers these to be dual-use items. This is because the aircraft could be used ‘also for military purposes’, which corresponds to the definition of a dual-use item. It would also be technically possible to retrofit the aircraft for military purposes, for example for reconnaissance and surveillance flights. Furthermore, the aircraft could already be used for military reconnaissance by having soldiers fly over an area and “look out of the window”. The aircraft manufacturer, however, argues that, by this logic, any item could be used in some way by the armed forces. This view would extend the concept of dual-use items without limit.
What are dual-use items? In essence, the case boils down to the question of how "military" an item must be to be considered a dual-use item. The legal definition is remarkably broad. According to the Dual-Use Regulation, the term covers “items which can be used for both civilian and military purposes”. The term encompasses not only physical objects, but also software and technology. The critical issue is determining the precise boundary between purely civilian goods and dual-use items. Is it sufficient that the good can also be used for military purposes, or must the good make a significant contribution to the capabilities of the armed forces?
The Federal Administrative Court has provisionally assumed that the aircraft, aircraft parts and technology constitute dual-use items. The decisive factor for the qualification is not whether the items are specifically designed for military purposes. Rather, a potential use for military purposes is likely to suffice, as the Dual-Use Regulation contains the wording ‘can be used’. Furthermore, the Regulation lists examples of goods that are not designed for military purposes, but which may nevertheless be used for such purposes. For this reason, the court provisionally takes the view that it is not the use of the actual use of the items that matters, but that the assessment must be made abstractly, purely based on the nature of the items. In other words, it does not matter whether it is likely that the items will be used for military purposes.
What was the outcome of the proceedings? The Federal Administrative Court itself has not yet reached a decision on this matter. Rather, it has requested a preliminary ruling from the Court of Justice of the European Union (CJEU) for guidance on interpretation. The CJEU must now, in the case Flugzeugherstellerin C-538/25, interpret how the EU legal definition of dual-use items is to be understood. The proceedings before the Federal Administrative Court will then continue.
Federal Administrative Court of Austria 07.08.2025, W606 2300668-1 (in German)
