Export Controls — The Keys to Forging a Transatlantic Tech Shield

Matthew Eitel

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A transatlantic tech shield requires a new, united vision for export controls and enacting the reforms necessary to make it a reality.

The United States (US) and the European Union (EU) agree that export controls are a key weapon in the arsenal against authoritarianism. In response to Russia’s full-scale invasion of Ukraine, the allies coordinated a comprehensive ban on selling Moscow a variety of dual-use technologies — hardware or software with both civilian and military applications — such as semiconductors and telecommunications equipment. 1 They also align on placing export controls in a central role to “de-risk” supply chains from China. 2

Yet the differing governance structures of the allies remain a key obstacle. The US benefits from a strong federal executive branch, which can impose financial sanctions and export controls quickly and unilaterally. Some US export controls are effective upon release. 3 The EU, on the other hand, can only act after forging consensus among its 27 member states, who view export controls as a national security competency and often sideline the Brussels-based European Commission when creating national level controls. It takes about a year to update the EU’s export control list. 4

EU and US political priorities also differ. The US now places national security concerns at the center of its international economic agenda, willing to sacrifice trade in the name of protecting US security. 5 The EU has hardened its view of economic engagement with China, but key member states such as Germany remain skeptical of the trade-offs required to closely align their approach with that of the US. 6

Future transatlantic coordination on the rationale and implementation of export controls will require reflection and reform. Washington must remain careful about unilateral action. It must avoid applying too many extraterritorial controls and coercing allies to align their regulations. Europe must update its fragmented export control regime and form a consensus on a strategic approach to technology transfers to China.

Washington Sounds the Alarm and Seeks to “Lead from the Front”

During the late 1940s, the United States began to use export controls as a national security tool in response to mounting tensions with the Soviet Union. The US Congress codified national security and foreign policy considerations as a valid rationale for imposing sanctions. 7 After World War II, NATO members and Japan began coordinating on multilateral export controls to “affect the economic development of the Soviet Union” and restrict its access to sensitive technology and military equipment. 8

A fear of rising authoritarian power continues to motivate US export control policies. In 2015, China announced its flagship industrial policy plan dubbed “Made in China 2025.” 9 It articulated an ambition to dominate global supply chains in strategic sectors such as “new advanced information technology” and “new materials.” 10 The plans alarmed Washington policymakers. They view the “Made in China” ambitions as a threat to US leadership in technological innovation.

In response, Washington pushed to revitalize the laws that govern the US export controls. Congress passed the 2018 Export Control Reform Act mandating the identification of “emerging and foundational” technologies that required export restrictions as a matter “essential to the national security of the US.” 11 The Bureau of Industry and Security, housed in the US Commerce Department, won the authority to identify technologies that warrant export controls, alongside the US Departments of Defense, Energy, and State.

At the same time, the administration of former US President Donald J. Trump launched efforts to curtail Chinese telecommunications firm Huawei’s access to US technology. In 2019, the US labeled Huawei a grave national security threat. It added the firm and 68 of its non-US affiliates to the Entity List, a public catalog of companies and persons subject to special export license requirements. 12 All non-licensed “exports, reexports, and transfers” to Huawei from US companies were banned.Photo: A surveillance camera is seen in front of a Huawei logo in Belgrade, Serbia, August 11, 2020. Picture taken August 11, 2020. Credit: REUTERS/Marko Djurica

Since Huawei continued to acquire restricted tech from non-US firms, Washington introduced an expansive new regulation to address this weakness. 13 The “Entity List foreign direct product rule” represented a substantial shift to reliance on extraterritorial authority. 14 By August 2020, the rule subjected any foreign-produced item using US inputs that could eventually be “produced, purchased, or ordered” by Huawei or its non-US affiliates to US export restrictions. 15

Although the use of extraterritorial rules is not new, the expansion of this tool has generated tensions on both sides of the Atlantic. Transatlantic tech trade associations complained that “extraterritorial application of US export controls creates regulatory burdens on European stakeholders and discourages European entities from collaborating with US counterparts, creating incentives to avoid US technology or, in some cases, hire US persons.” 16

Russia’s full-scale invasion of Ukraine in early 2022 forced Washington and Brussels to address tensions over extraterritoriality. Departing from the Trump administration’s approach to Huawei-related controls, the administration of US President Joseph R. Biden, Jr. offered exemptions from foreign direct product rules to European allies who imposed sanctions against Russia and Belarus. 17 The exemptions encouraged European firms to continue using US inputs or avoid switching to non-US suppliers. 18

Instead of reversing the Trump administration’s trade offensive against China, the Biden administration has proved even more aggressive in countering China’s tech ambitions. US intelligence perceives Beijing as a “near-peer” strategic threat, asserting that China is “the only competitor with both the intent to reshape the international order and, increasingly, the economic, diplomatic, military, and technological power to do it.” 19 The US no longer aims to stay only “a couple generations ahead” of China in key technological industries, says US National Security Advisor Jake Sullivan. 20 The goal is to “maintain as large of a lead as possible” by pursuing a “small yard, high fence” approach to limiting to China’s ability to “exploit American and allied technologies.” 21

To achieve this ambitious goal, the Biden administration has ratcheted up pressure. On October 7, 2022, the US Commerce Department introduced new export controls aimed at stunting China’s ability to manufacture and purchase semiconductors and semiconductor manufacturing equipment above a certain performance threshold. 22 China’s technological advancement is now deemed a national security risk by the Biden administration, which asserts that it is impossible to distinguish between China’s military and non-military uses of many critical technologies. 23 The US is looking to close loopholes in these controls with restrictions on Chinese companies’ access to US cloud-computing services. 24 Updates could also expand US extraterritorial jurisdiction by lowering the threshold needed for the controls to apply to foreign equipment. 25Photo: Pedestrians walk across a crossroad as a big electronic screen supported by face-recognition system shows the image of a jaywalker at the intersection in Nanjing city, east China’s Jiangsu province, 4 July 2019. Traffic police in Nanjing used facial-recognition technology to capture jaywalkers in east China’s Jiangsu province. Authorities already publicly name and shame people who flout the southern city’s strict road rules, using CCTV cameras equipped with artificial intelligence (AI) that can recognise offenders. Credit: Wang Feng, Oriental Image

The new strategy has caused consternation, both inside and outside the US. Critics define it as “decoupling” and “an act of [economic] war,” worrying that it could hurt Americans and Europeans as much or more than China. 26 In response, the Biden administration has toned down the rhetoric of its security-at-any-cost strategy. US Treasury Secretary Janet Yellen emphasized in April that US export controls are “motivated solely by our concerns about our security and values,” and not to “gain competitive economic advantage.” 27 National Security Advisor Sullivan echoed the softer tone in a similar speech saying that US export controls are “narrowly focused on technology that could tilt the military balance.” 5

But the core “Sullivan Doctrine” animating strict US export controls remains intact. As US Undersecretary of Commerce for Industry and Security Alan Estevez stated when describing the rationale for the October controls, the US will “not balance trade with national security.” 28

Europe disagrees.

European Attitudes Are Changing — But Skepticism Persists

The European Union began as a commitment to free trade and an aversion to power politics. 29 During the Cold War, EU member states each formulated their own export control policies. National security remained a national prerogative, outside the scope of the Common Market.

This is changing. European leaders understand the need to reinforce their ability to impose export controls. After nearly six years of negotiations, they adopted a new export control regime in 2021. 30 It reformed controls on dual-use technologies, harmonized licensing procedures across EU member states, and established regular communication channels between national and European Commission officials. The new regulations also crack down on the export of surveillance products that pose serious risks of a “violation of human rights, democratic principles or the freedom of expression.” 31

Despite this reform, the EU’s capacity to control exports remains limited. The final 2021 regulation reflects scaled-down ambitions compared with the original European Commission proposal. 32 The Commission cannot order EU-wide sanctions. It is only allowed to help member states coordinate their policies and maintain permanent EU-wide lists of restricted exports. The EU’s Foreign Affairs chief proposes sanctions but needs the unanimous consent of the 27 to impose them. 33 Any single EU member state can delay or dilute new controls and sanctions in response to Russia’s aggression. 34

European concerns about China are intensifying, driving a new push to reform the EU’s export controls policies. In 2019, the Commission defined relations with China as a negotiating partner, an economic competitor, and a systemic rival simultaneously, without committing to any of the three definitions. 35 Josep Borrell, High Representative of the EU for Foreign Affairs and Security Policy, now seeks to recalibrate EU relations with China in a “clear-eyed but not confrontational” manner that relies on “a more effective export control system.” 36Photo: Visit of Ursula von der Leyen, President of the European Commission, to the Vrije Universiteit Brussel. Credit: Jennifer Jacquemart/European Commission

The EU is seeking expanded legal powers to match this hardened view. An upcoming “anti-coercion instrument” aims to bolster the bloc’s ability to hit back at China following a trade dispute driven by Lithuania’s recognition of Taiwan. 37 The new “European Economic Security Strategy” calls for updates to the EU’s dual-use export controls to support European Commission President Ursula von der Leyen’s push to “de-risk” European supply chains from China. 38

Despite growing alignment with the US and calls for reform, significant challenges remain. Many Europeans did not view China as a security risk. The populations of all but four EU member states view China as an “ally” or “necessary partner.” 39 Europe’s economies remain dependent on China; Ireland is the only EU member state that can boast a trade surplus with China. 40 German Chancellor Olaf Scholz diluted Germany’s new China strategy, stopping short of endorsing aggressive controls on advanced tech. 41 France, Germany, Italy, and the Netherlands have expressed concerns that President von der Leyen’s “de-risking” strategy will encroach on member states’ ability to set national security policies. 42

US willingness to use extraterritorial application of its export controls as leverage remains a key obstacle. Dutch company ASML has become the symbol of this tension. 43 It is the world’s only manufacturer of extreme ultraviolet lithography systems, a type of semiconductor equipment used to produce advanced chips. 44 In 2018 and 2019, the Dutch government resisted US pressure before finally accepting a ban on certain ASML exports to China. 45Photo: A technican of Trumpf, that supplies CO2 laser technology to Dutch ASML and the leader of semiconductor lithography machines, Ditzingen, Germany, May 15, 2019. Credit: REUTERS/Kai Pfaffenbach

The US, Netherlands, and Japan engaged in a similar diplomatic dance with the Biden administration. The new US export controls restricted foreign and American companies — and individual American citizens — from assisting Chinese chipmakers. They also expanded the list of US parts that trigger an export license review for items made by firms outside the US. 46 In order for these controls to be effective, semiconductor powerhouses Japan and the Netherlands needed to impose similar restrictions.

Despite initial skepticism, Japan and the Netherlands agreed in January to a confidential deal to impose similar controls. 47 Dutch Trade Minister Liesje Schreinemacher announced the “additional national export control measures” — echoing central tenets of Sullivan’s strategy — in March and published the new controls in late June. 48 Japan followed suit, aligning its high tech export controls with those of the US and the Netherlands. 49

A New Venue

Another challenge is updating existing international agreements.

Multilateral export control regimes include the Nuclear Suppliers Group, the Missile Technology Control Regime, the Australia Group (for chemical and biological weapons), and the Wassenaar Arrangement (for conventional weapons and associated dual-use technologies). Most of the items and technologies included on EU export control lists were agreed upon under the rules of one of these four groups. 50

Skepticism is rising about the relevance of these multilateral regimes. 51 The focus on limiting conventional weapons or weapons of mass destruction seems too narrow to achieve the broad objectives such as containing another country’s technological rise. 52 Decisions require consensus among a large and diverse membership. The Wassenaar Arrangement has 42 members, including Russia.

These limitations have led to proposals to create a new forum restricted to advanced democratic countries and designed to deal with dual-use technology exports to China. After the relative success of democratic coordination against Russia, such a new multilateral group could be effective in imposing “export controls to achieve objectives beyond nonproliferation.” 53

Success is far from assured. The EU remains hesitant to use multilateral forums like the EU-US Trade and Technology Council (TTC) to target China. 54 Many European firms remain suspicious of US companies unfairly benefitting from expansive US controls, although US firms like Micron and NVIDIA are facing steep costs and lost opportunities. 55

European fear of US tech dominance breeds worries that export controls threaten the continent’s quest for technological sovereignty. 56 To some, the US is simply acting “without seriously consulting its European allies” and its drive to maintain “US tech dominance…runs headlong into European concerns.” 57

Perverse Incentives and Unintended Consequences

During the late 1990s, the US restricted exports of satellite technologies. 58 At the time, US companies generated more than 60% of global revenue for the satellite industry. By 2005, that percentage dropped to 41% with US satellite firms losing more than $500 million annually. The ability of the US satellite industry to lead global innovation was hamstrung. China and other nations found alternative suppliers.

This cautionary tale underlines important lessons. Over time, export controls can undermine national security interests, though designed to strengthen them. 59 US export controls are only as strong as the world’s dependency on US equipment, software, and knowledge. That dependency is not a given. Strict unilateral controls create incentives to reduce the ability of the US to control the flow of advanced technology. 60 They encourage competitors to develop US-free supply chains to evade US export controls and keep selling to China.

Chinese firms are aggressively pursuing chip supply chains free of Western inputs and Beijing is striking back with chip manufacturing controls of its own. Yangtze Memory Technologies Corp (YMTC) plans to use domestically sourced equipment for advanced flash memory products. 61 Huawei filed patents for its own extreme ultraviolet technology in 2022, signaling that its lofty ambitions to catch up to ASML.

Admittedly, most Chinese semiconductor firms remain woefully short of achieving Beijing’s lofty goals for chipmaking self-sufficiency. 62 China’s recent restrictions on two key chipmaking metals could succumb to similar faults of US chip controls, accelerating Europe and America’s critical minerals “de-risking” efforts. 63Photo: A researcher wearing cleanroom suit displaying a wafer in the lab of Shanghai Microsemi Semiconductor Co., Ltd. in Shanghai, China. Credit: Wu Jianxin/Oriental Image via Reuters Connect

Adversaries and allies alike bear the economic costs of US export controls. Beijing retaliated against the US controls by banning Chinese infrastructure operators from using memory chips from US chipmaker Micron Technology. 64 The US urged Seoul to dissuade South Korean chipmakers Samsung Electronics and SK Hynix from filling the gap. 65 Washington possesses strong leverage. The US Commerce Department extended a one-year exemption to Korean firms that produce 40% of their memory chip inventory in China. 66

China’s chip self-sufficiency push and the Micron ban illustrate the need for transatlantic alignment on tech export controls regimes. The US must shift to a strategy of incentivizing rather than coercing allies to join these regimes. Brussels must make the case to member states that strengthened EU export control rules can increase national security as a necessary component of “de-risking” the continent’s supply chains.

The US and the EU share a common interest in ensuring China does not take advantage of Western technology to strengthen its military and commit human rights abuses. A transatlantic tech shield requires a new, united vision for export controls and enacting the reforms necessary to make it a reality.

Policy RecommendationsLeverage the EU-US Trade and Technology Council: Previous TTC joint statements expressed “shared concerns” that the “civil-military fusion policies of certain actors undermine security interests,” but stop short of naming China. 67 Building on the G7’s Hiroshima Leaders’ Communiqué, the upcoming TTC meeting should explicitly endorse a common transatlantic approach to tech export controls on China.

Improve European export control governance: the EU should consider proposals to develop a new joint risk framework for bloc-wide export controls. 68 The EU should follow through on a recent draft recommendation of a parliamentary committee to set up a “dedicated European Export Control Agency” to oversee dual-use export controls. 69

Address the potential danger from export controls to US and EU tech industries: Recent US export controls create perverse incentives for adversaries — and allies — to reduce their reliance on US tech, potentially threatening the controls’ long-term effectiveness and weakening US leverage on China. 70 Congress should mandate the US Bureau of Industry and Security produce a report evaluating how foreign direct product rules affect the presence of US inputs in semiconductor supply chains.

Broaden the discussion and think long term: The EU and the US should expand efforts to work with a wider array of democratic allies, including Japan, South Korea, and Taiwan when aligning on export controls policy. Together, they should monitor the emergence of new technologies, map key supply chain chokepoints and dependencies, and assess the capabilities of selected countries. 53 This will help build consensus and foster common threat perceptions, with a view to launching further initiatives, including a new multilateral export controls regime to deal with non-traditional security concerns.

Matthew Eitel is Special Assistant to the President and CEO at the Center for European Policy Analysis (CEPA). Matthew was previously a Program Officer for CEPA’s Digital Innovation Initiative.

Charles Martinet contributed significant research and editorial support to this policy brief. Charles is a former intern with CEPA’s Digital Innovation Initiative and is currently master’s student at Sciences Po Paris, where he studies the geopolitics of technology, artificial intelligence governance, and EU tech policy.