# CJEU Case C-538/25 on the Concept of Dual-Use > The Opinion in C-538/25 supports a broad reading of dual-use and separates product characteristics from export authorisation. Source: https://www.mtrlegal.com/en/cjeu-case-c-538-25-dual-use-concept/ · Language: en · Updated: 2026-10-21 --- ## Opinion in Case C-538/25 on the interpretation of the concept of dual-use Advocate General Tamara Ćapeta has delivered her [Opinion on the interpretation](https://curia.europa.eu/site/jcms/p1_1000088069) of the term “dual-use items” in Case C-538/25 (case before the Court of Justice of the European Union). In her view, this term should be understood broadly so that the different strategic and security-related considerations of the Member States and the European Union can be covered. The proceedings concern a [request for a preliminary ruling from the Austrian Bundesverwaltungsgericht (Federal Administrative Court)](https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C_202505939), which was lodged with the Court of Justice of the European Union (CJEU) on 7 August 2025. In the main proceedings, an anonymised aircraft manufacturer as complainant and the Austrian Federal Minister for Economic Affairs, Energy and Tourism as the defendant authority are opposing parties. The subject matter of the proceedings comprises aircraft, a flight simulator, technology transfer and finished aircraft parts intended for Myanmar. The Opinion does not decide whether the export is permissible in the specific case. That assessment remains reserved to the referring court. ## Background to the main proceedings in Austria ### Authorisation in 2019 and subsequent refusal According to the information presented in the proceedings, the Austrian authorities authorised the export of the items in question in 2019. When the company sought to export the same items again to the Myanmar Air Force in 2023, the authorisation was refused. The authorities classified the items as dual-use items. The reason given was that they could be used for reconnaissance flights and for training military pilots and could therefore be connected with human rights violations. According to further information reported publicly, the company had already applied to the competent Ministry of Economic Affairs in June 2018 for an export authorisation for six aircraft. According to those reports, after proceedings lasting several years, the Ministry issued a more detailed prohibition decision in July 2024, which was based, among other things, on the possible training of military pilots and ongoing systematic human rights violations by the end user. ### Dispute over technical and military usability At the centre of the case is an aerobatic model of a two-seater aircraft. According to the information available, it is neither specially designed for military purposes nor equipped with military components. The aircraft manufacturer argues before the Bundesverwaltungsgericht (Federal Administrative Court) that the aircraft were not designed for military purposes; a corresponding conversion was impossible. The economic volume of the blocked transaction was put at more than EUR 80 million in public reporting, and elsewhere in the same article at EUR 116 million. A non-governmental organisation attributes the proceedings to an Austrian aviation company and a specific aircraft type. That attribution is based there, among other things, on a request for information submitted to the Austrian Ministry of Economic Affairs, according to which only one aviation-related dual-use export authorisation for Myanmar was granted between January 2018 and early 2024, namely on 14 June 2019. Since the proceedings before the Court of Justice are being conducted anonymously and the decision is still pending, this external attribution should be understood as a source reference and not as a judicial finding. According to the same organisation, the project also included the final assembly of aircraft at Shante Air Base near Meiktila. According to that account, the transaction was brokered through a company sanctioned in the United Kingdom. These statements, too, are not the subject of a final decision by the Court of Justice in Case C-538/25. ## Questions referred by the Austrian Bundesverwaltungsgericht ### Interpretation of Article 2(1) of Regulation (EU) 2021/821 The first question from the Bundesverwaltungsgericht concerns the interpretation of Article 2(1) of Regulation (EU) 2021/821. The referring court wishes to know which circumstances must be taken into account when examining whether an item can also be used “for military purposes”. In addition, the Bundesverwaltungsgericht expressly asks whether an item must make a significant contribution to military capabilities in order to be classified as a dual-use item. ### Further questions of EU law concerning the export prohibition The request also concerns the question of whether an export to a third country may be prohibited solely on the basis of human rights considerations pursuant to § 20 in conjunction with § 6 Außenwirtschaftsgesetz (Austrian Foreign Trade Act). In this context, the interpretation of Article 207 TFEU (Treaty on the Functioning of the European Union) in conjunction with Article 10 of Regulation (EU) 2015/479 is also at issue. The proceedings therefore touch both on the classification of an item as a dual-use item and on the separate question of the conditions under which a specific export may be prohibited. ## Key statements in Advocate General Ćapeta’s Opinion ### Broad interpretation of the concept of dual-use In her Opinion, Advocate General Ćapeta takes the view that the term “dual-use items” must be interpreted broadly. This is intended to cover the broad range of strategic and security-related considerations that may be relevant both for the Member States and for the European Union. According to the Opinion, the dual-use character of an item must be assessed on the basis of its physical and technical capabilities. The decisive factor is therefore whether, by its nature, the item can be used for civilian and military purposes. ### No requirement of a significant contribution to military capabilities According to the information available, the Advocate General does not require the item to make a significant contribution to the capabilities of the armed forces. Accordingly, the contribution to the capabilities of the armed forces need not be significant. Thus, for classification as a dual-use item, it is not relevant whether the item concerned substantially strengthens military capabilities. Rather, the decisive point remains whether, due to its technical and physical characteristics, it can also be used for military purposes at all. ## Distinction between dual-use character and export authorisation ### Situation in the country of destination concerns the authorisation decision In the Advocate General’s view, the situation in the country of destination plays no role in the classification as a dual-use item itself. However, it may become relevant when deciding on the export authorisation. This distinction is central: the dual-use character is linked to the item itself, whereas the authorisation decision may take account of further circumstances of the specific export. The circumstances that may be relevant in the context of the authorisation decision include in particular: - the intended end user, - the risk of diversion, - security-related concerns, - human rights considerations, - the specific possible use in the country of destination. ### End user and risk of diversion do not determine the character of the item According to the Opinion, neither the end user nor a risk of diversion determines the dual-use character of the item. Both aspects may, however, be material to the question of whether an export is subject to authorisation or may be prohibited. According to the view reported, national authorities must state reasons why an item is to be regarded as a dual-use item. They must also explain why a prohibition raises security or human rights issues. ## Significance for companies with cross-border exports The Opinion makes clear that, when exporting technically usable items, a careful distinction must be made between the characteristics of the product and the specific authorisation decision. The technical suitability of an item may be sufficient for classification as a dual-use item, without there necessarily having to be a significant contribution to military capabilities. At the same time, according to the Opinion, human rights and security-related aspects cannot automatically establish the dual-use character of an item. They may, however, play an independent role in the authority’s decision on an export authorisation. The Court of Justice of the European Union is not bound by the Advocate General’s Opinion. A decision in Case C-538/25 remains to be seen. Until then, this is a legal assessment by the Advocate General, not a final decision of the Court of Justice. ## Assessment by MTR Legal Rechtsanwälte For companies, investors and high-net-worth individuals, export control proceedings may have considerable economic and regulatory significance. This applies in particular where technical items can be used for both civilian and military purposes and where [foreign trade law, human rights or security-related issues](https://www.mtrlegal.com/offices/berlin/wirtschaftsstrafrecht/aussenwirtschaftsstrafrecht/) are also involved. MTR Legal Rechtsanwälte advises clients in commercial law proceedings with an international dimension. Where legal questions arise in connection with state authorisation decisions, foreign trade law and administrative measures, a well-founded assessment in the area of public law may be advisable. Further information is available at [Legal advice in public law](https://www.mtrlegal.com/wiki/oeffentliches-recht/).