Can almost any civilian product qualify as a dual-use item? Ross Denton, Senior Counsel at Akin Gump in London, raises that question in his discussion of Advocate General Tamara Ćapeta’s Opinion in Case C-538/25 and a subsequent exchange with export-control specialist Abdul Syed. The answer could affect exporters well beyond the manufacturers of goods appearing on EU control lists.
Syed recalled a government lawyer who insisted that everything was dual-use. When Syed disagreed as an expert witness, the lawyer accused him of undermining his cases. Denton’s response was qualified: after reading the Opinion, he was tempted to say that almost everything “can be.”
The difference between is and can be carries much of the argument. A product may have potential military uses without requiring an export licence in every transaction. Even when a licensing requirement applies, classification alone does not justify refusal.
The case concerns civilian training aircraft and associated items proposed for export to Myanmar’s air force. Austrian authorities authorised an earlier export but later refused authorisation. The ensuing reference asks how to determine whether an item is dual-use. Ćapeta delivered her Opinion on 24 September 2026. It proposes an interpretation; it is not a binding judgment. The Court’s official announcement confirms that the judges will decide the case.
Denton begins with Article 2(1) of the EU Dual-Use Regulation, which defines dual-use items by their capacity for civilian and military use. He distinguishes products appearing in the Regulation’s annexes from products that meet the definition without appearing on those lists:
“Second, items that are NOT listed as ‘dual-use’ in any of the Annexes to the Dual-Use Regulation but are nevertheless ‘dual-use’.”
An exporter therefore cannot treat absence from a control list as the end of the inquiry. Non-listed items may fall within national controls or provisions addressing specified end uses. Denton identifies weapons of mass destruction, military end uses in embargoed countries, certain cyber-surveillance uses, and public-security or human-rights considerations.
Those provisions have different conditions. A concern sufficient to prompt investigation does not necessarily establish a licensing requirement under the provision an authority invokes. Denton explains the necessary sequence:
“Member States governments can impose export licensing requirements based on end-use or other criteria, but they must start with the universe of items referred to as ‘dual-use items that are not listed’ in the Annexes.”
An authority relying on a power applicable to non-listed dual-use items must establish that the product meets that description. Evidence about the destination or purchaser cannot replace evidence supporting classification.
The difficulty lies in deciding how much military utility is enough. Denton identifies two questions in the reference:
On the first question, he reports Ćapeta’s conclusion:
“an item is capable of use ‘[also for] military purposes’ whenever there exists any link between the item’s potential uses and the armed forces of the third country in question.”
That formulation explains Denton’s observation that almost everything “can be.” Armed forces purchase civilian transport, communications equipment, training systems and maintenance supplies. A product need not be a weapon or improve combat performance substantially to serve a military purpose.
The formulation nevertheless requires an identified connection between the product’s capabilities and a potential military use. Without that connection, the purchaser’s identity could become conclusive: anything bought by armed forces would qualify because armed forces bought it. Such reasoning would undermine the separate classification inquiry.
On the second question, Denton writes:
“only the objective characteristics of the item were relevant.”
He explains that the end user and intended use belong in the assessment of export authorisation, rather than the determination of whether the item is capable of civilian and military use. Compliance records should reflect that distinction. Technical specifications support classification; evidence about the transaction supports the decision whether controls apply and whether authorisation should be granted.
Denton acknowledges the breadth of the resulting category. He reproduces Ćapeta’s explanation:
“the concept of ‘dual-use items’ does not necessarily need a narrow interpretation. To the contrary, only a broad interpretation would allow that concept to cover the vast array of strategic and security considerations that may come within the conduct of the Member States’ or the European Union’s foreign relations.”
This approach gives authorities scope to address ordinary products whose capabilities acquire military significance. It also avoids making coverage depend entirely on whether a control list has kept pace with technology or procurement practices.
The accompanying limitation is essential. Denton quotes:
“Understanding the concept of ‘dual-use items’ broadly does not mean that the Member States have unfettered discretion to introduce obstacles to free trade.”
The passage continues:
“the broad interpretation of that concept is counterbalanced by the limited scenarios in which the legislature has empowered the Member States to introduce restrictions on the exportation of such items; in the context of Article 9 of the Dual-Use Regulation, that is for security or human rights considerations only.”
The proposed interpretation places fewer limits on the range of products potentially covered and relies more heavily on the statutory conditions for restricting particular exports. Its application will therefore turn on how rigorously authorities establish those conditions and courts review them.
In the supplied exchange, Denton also cites paragraph 52 of the Opinion, describing purely civilian items as those that “can never also be of use for military purposes.”
Proving that a product ordinarily serves civilian purposes is straightforward compared with proving that it could never serve a military purpose. Commercial descriptions such as “civilian,” “commercial” or “non-strategic” offer little assistance if the legal question concerns capabilities. The relevant evidence must explain what the product can do.
Denton’s exchange also points to Article 10 of the Common Rules for Exports Regulation as a separate basis for restrictions. Exclusion from the dual-use definition consequently does not resolve whether another export-control power applies. Authorities must identify the power they use and establish its conditions; exporters must address the asserted grounds separately.
Denton’s suggestion that governments prefer to “catch and then release” describes the administrative appeal of broad coverage. It allows authorities to examine transactions before permitting them to proceed. But a broad definition does not itself impose a universal licensing requirement. The authority still needs a legal basis for intervention.
Reasons also matter. Ćapeta’s treatment of effective judicial protection requires authorities to explain the classification and the security or human-rights grounds for prohibiting export. The Court’s announcement expressly identifies those requirements.
Denton concludes:
“This has to be the correct interpretation, and should not be shocking to practitioners in this area. It will be interesting to see how the Court decides the question.”
The Court’s decision will determine whether it accepts that allocation of legal scrutiny. If it does, disputes may focus less on whether civilian goods have some military utility and more on whether the authority has established lawful grounds for controlling the transaction. Denton’s analysis gives exporters and enforcement authorities the same instruction: classification comes first, but it does not decide the export.
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