EU adviser says civilian design is no passport for aircraft exports

An EU court adviser said civilian planes used to train military pilots could face export controls, but governments must explain the risks behind restrictions.(CN) — A civilian plane can serve a military just by teaching its pilots to fly, an adviser to the EU’s top court said Thursday as an Austrian manufacturer fights to resume exports to Myanmar’s air force.Advocate General Tamara Ćapeta urged the Court of Justice of the European Union to broadly interpret the rules covering goods with civilian and military uses. The manufacturer wants Austria’s export ban overturned, prompting Austria’s Federal Administrative Court to seek guidance on which goods qualify.Ćapeta said basic military flight training counted even when the lessons matched civilian instruction. Requiring proof that an aircraft substantially strengthened an armed force would be difficult and could leave sensitive exports beyond regulators’ reach.The test, she said, was what the equipment could do, based on its physical characteristics when exported, including its potential for conversion. A civilian design did not exclude military use. The customer, destination and risk of diversion mattered later, when deciding whether to restrict a shipment.Ćapeta read EU legislation as giving security and strategic concerns equal weight with free trade. “Whereas as individuals we may be nostalgic, the court does not enjoy such a privilege; rather the court must interpret the law in its current context,” she wrote.Classifying unlisted goods as suitable for both uses did not automatically justify blocking them. Authorities still had to explain the security or human rights risks of the particular export, allowing national courts to check whether restrictions were necessary and could achieve their aim.Machiko Kanetake, professor of international law and security governance at the University of Amsterdam and academic director and executive board chair of the T.M.C. Asser Instituut, put the interpretation in perspective: “This broad reading of dual-use items makes sense in the light of the practices of export controls and the flexible meaning already given to the concept of ‘dual-use’ items,” Kanetake said.She considered the obligation to justify restrictions more significant. For businesses, she said, requiring authorities to connect a shipment to their stated concerns provided an essential safeguard: a basis for challenging the controls in court.The manufacturer applied in 2018 to export six training aircraft, a simulator, production technology and parts through a civilian trading company to Myanmar’s air force. Austria granted conditional permission in 2019. According to the Austrian government, three aircraft, the simulator and some technology and parts were exported before the company sought permission for the remainder in 2020.Those details suggest Diamond Aircraft Industries, although the opinion does not identify the manufacturer. A 2023 Justice For Myanmar investigation described a matching project involving six DART-450 aircraft, local assembly and technology transfers to Myanmar’s military. Diamond was contacted for comment.The military seized power in February 2021. Its subsequent air campaign devastated civilians: The United Nations human rights office reported at least 982 civilian deaths from airstrikes in 2025, including 232 children, the highest verified annual toll since the coup.Austria refused further exports in July 2021. After earlier decisions were set aside, authorities imposed the challenged ban in July 2024, citing military training, possible reconnaissance use and the risk of supplying an end user accused of systematic human rights violations. The manufacturer maintains the aircraft was designed for civilian use and disputes whether it could be converted.The Austrian court said the goods were outside the EU’s listed dual-use controls, military list and Myanmar sanctions, making the separate power to restrict unlisted goods crucial. Ćapeta did not address whether exports lacking any dual-use character could also be restricted.Austria’s Ministry of Economy, Energy and Tourism did not respond to a request for comment.Ćapeta’s opinion did not settle whether the remaining planes could be exported. The EU court must now interpret the rules, without being bound by her advice. Austria’s court will then decide whether the ban stands.Courthouse News reporter Eunseo Hong is based in the Netherlands.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads