Dual-use qualification: the unexamined frontier of European law.

Position

The European Union is building, text after text, a frontier it does not draw.

Regulation (EU) 2024/1689 on artificial intelligence excludes from its scope systems placed on the market or used exclusively for military, defence or national security purposes. The proposal for a space regulation presented by the Commission on 25 June 2025 · COM(2025) 335 · excludes from its own scope space objects exclusively used for defence or national security purposes, together with objects temporarily placed under military control for the duration of the operation.

Two texts, one architecture: a harmonised regime on one side, a reserve of sovereignty on the other, and between the two a qualification that neither text examines.

The first text leaves that qualification without a designated holder. The second nationalises it without harmonising it: recital 36 of the proposal assigns to each Member State the task of determining, according to the circumstances of the case, whether an object partially used for defence purposes and placed under its operational control falls within the exclusion. A holder, then; but neither common criteria, nor procedure, nor effect with regard to the other Member States.

This position contends that the frontier of the future single market for space will thus be drawn twenty-seven times, differently, at the threshold of a regime whose very object is harmonisation · and that this national qualification without a common frame of reference constitutes the act that commands everything: authorisation, supervision, obligations and market access. It contends, further, that European dual-use actors have an interest in producing the doctrine of arbitration the texts do not provide, while the negotiation remains open on this precise point.

The precedent · Regulation (EU) 2024/1689

The regulation on artificial intelligence does not apply to AI systems where, and in so far as, they are placed on the market, put into service or used exclusively for military, defence or national security purposes · Article 2(3). The exclusion is thus bounded by use, not by object. Recital 24 draws the consequence: a system developed or used for those purposes and then assigned, temporarily or otherwise, to other purposes enters the scope of the regulation.

For a structurally dual programme, the exclusion therefore presupposes a purity of use that contemporary capability hardly presents any longer. The classification under Article 6 then operates by reference: Annex I refers to harmonisation legislation, itself bounded by Article 346 TFEU; Annex III lists domains which, as they stand, capture neither autonomous navigation nor targeting-assistance functions.

The result is a characteristic situation: each regime may be perfectly held by the function in charge of it · export control, compliance, technical direction · without their coexistence supplying the qualification on which the decision depends. The exposure does not reside in an unknown rule. It resides between several known rules that do not answer the same question.

The repetition · the proposed space regulation

Proposal COM(2025) 335 lays down a principle of prior authorisation for space activities within its scope and articulates its requirements around safety, resilience and sustainability. Where the artificial intelligence regulation bounds its exclusion by use, the space proposal excludes objects: its defence and national security exclusion rests on two adverbs · "exclusively", "temporarily" · that is, on a binary qualification applied to a massively dual capability.

One and the same infrastructure serves commercial and institutional clients. A civil observation capability is mobilised for a security mission. An object changes use, or control, in the course of its life. At each of these switches, the proposal makes the authority that authorises, the regime that supervises, the obligations that apply and the basis on which the activity may be pursued depend on the qualification.

On the most exposed branch · the object partially used for defence purposes, placed under the operational control of a Member State for the duration of the mission · recital 36 designates the holder of the qualification: each Member State, case by case. It provides neither common criteria, nor procedure, nor a mechanism of recognition between Member States. The determination that brings an object into or out of the harmonised regime is thus remitted to twenty-seven sovereign appraisals, at the entrance of a text whose declared function is to end the fragmentation of thirteen national legislations.

This point is, moreover, among the most contested in the negotiation. The draft report of the ITRE committee of 3 March 2026 · procedure 2025/0335(COD), amendment 28 · deletes the sentence of recital 36 attributing that determination to the Member States, substitutes "temporarily" for "partially" and extends the branch to national security, without entrusting the determination to anyone. The deletion does not displace the qualification: it leaves it without a text. The co-legislator is thus disputing the very attribution of the act that draws the frontier · which suffices to establish that it is not drawn. In the Council, the Danish presidency circulated a first compromise text on 5 December 2025, without revising the Commission's proposal at this stage, negotiations continuing within the Space Working Party; in France, the proposal for a European resolution No 846 tabled in the Senate on 2 July 2026 calls for strict reciprocity · a mutual, no longer unilateral, equivalence · with regard to third-country operators. As the text remains a proposal, no obligation flows from it to date; that is precisely what makes the period useful.

The triangle without an arbiter

The difficulty does not close within the European perimeter. European dual-use space programmes operate at the intersection of three grids of qualification conceived separately: the European regime for artificial intelligence, the export controls applicable to supply chains containing components subject to American law, and the interoperability requirements of the Atlantic framework (NATO standardisation agreements). None of the three readings maps onto the others; no instance arbitrates between them.

What a doctrine of inter-regime arbitration requires

Two doctrinal requirements can be stated as of now, without prejudging the manner in which each programme satisfies them.

Qualification is an act, not a state. It cannot be deduced from the coexistence of compliance functions each answering its own question; it is performed, reasoned and revised. An act of doctrinal qualification, not a retrospective finding.

Exposure can only be read by holding the regimes together. By sector and by arbitration window, none of the three grids, read alone, supplies the qualification on which the decision depends; their simultaneous reading is a precondition, not a corrective.

There remain the questions the texts do not examine and the negotiation has just opened: who performs the act when the recital that entrusted it to the Member States disappears, what is authoritative between twenty-seven appraisals when the object crosses borders, and what the switch from one regime to the other in the course of an object's life entails for the operator.

A doctrine is not a document: it is an act of sovereignty.

For the operators and programmes exposed to this duality, the question deserves to be examined while the texts are being negotiated. Afterwards, it will no longer be a question: it will be a status.

Paris, 17 August 2026