Case C-760/26, Association belgo-palestinienne – may a Member State block transit to prevent genocide?
A Member State may refuse, on human rights grounds, to let dual-use goods be exported from its territory. Whether it may stop the same goods passing through is a different question, and the Dual-Use Regulation answers it more narrowly.
Facts
The Association belgo-palestinienne, the Coordination Nationale d’Action pour la Paix et la Démocratie (CNAPD) and two individuals are in proceedings against the Belgian State before the cour d’appel de Bruxelles. According to press reports of the court’s interlocutory judgment of 30 June 2026, the dispute is about whether Belgium may prohibit the overflight of its airspace and the transit through its territory of dual-use items destined for Israel and the occupied Palestinian territories; the same reports say that the federal government had planned such a ban and dropped it in October 2025 after the Conseil d’État intervened, and that the court asked for the expedited procedure, citing the situation in Gaza. Transit of non-Union dual-use items is governed by Article 7 of Regulation (EU) 2021/821. Under Article 7(1), the transit of listed items “may be prohibited at any time by the competent authority of the Member State where the items are situated if the items are or may be intended, in their entirety or in part, for any of the uses referred to in Article 4(1)”; Article 7(3) allows a Member State to extend that power to non-listed items. The uses in Article 4(1) are, in substance, weapons of mass destruction and military end-use in a country under an arms embargo. The cour d’appel asks whether that limitation is valid and, if it is, whether Article 351 TFEU allows Belgium to go beyond it.
Questions Referred
1. Is Article 7 of Regulation (EU) 2021/821 of the European Parliament and of the Council of 20 May 2021 ‘setting up a Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items’ compatible with Article 3(5) of the Treaty on European Union and Article 1 of the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide and [common Article 1] of the Geneva Conventions of 12 August 1949, inasmuch as it limits, by reference to Article 4(1) of that regulation, the possibility for a Member State to prohibit the transit of non-Union dual-use items listed in Annex I thereto (Article 7(1)) and of non-listed dual-use items (Article 7(3)) to cases where those items contribute to the proliferation of weapons of mass destruction or to the military end-use of those items in a country that is subject to an arms embargo within the meaning of Article 2(19) of Regulation 2021/821?
2. Can a Member State, pursuant to the first paragraph of Article 351 of the Treaty on the Functioning of the European Union, notwithstanding the limits laid down in Article 7 of [Regulation 2021/821], by reference to Article 4(1) thereof, prohibit the transit of non-Union dual-use items in order to prevent, pursuant to Article 1 of the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide and [common Article 1] of the Geneva Conventions, the commission of, respectively, the crime of genocide and grave breaches of the Geneva Conventions?
Sources
OJ notice C/2026/5329 (EUR‑Lex) · Case file on CURIA · Regulation (EU) 2021/821
Comment
The structure of the Regulation is at the heart of the case. For exports of non-listed items, Article 9(1) allows a Member State to prohibit or impose an authorisation requirement “for reasons of public security, including the prevention of acts of terrorism, or for human rights considerations”. Article 7, on transit, has no equivalent. A transit State may act only where the items are or may be intended for the uses in Article 4(1), and unless the destination is under an arms embargo within the meaning of Article 2(19), meaning one imposed by the Council, the OSCE or a binding resolution of the UN Security Council, a military end-use is not enough. The human rights ground that a Member State has for goods leaving its territory is not available for goods crossing it.
The first question asks the Court to measure that choice against Article 3(5) TEU, under which the Union is to contribute to “the strict observance and the development of international law”, and against two conventions to which the Union is not a party: Article I of the Genocide Convention, by which the parties “undertake to prevent and to punish” genocide, and common Article 1 of the Geneva Conventions, by which they undertake “to respect and to ensure respect” for those conventions “in all circumstances”. The difficulty lies less in the content of those obligations than in their effect on the validity of a Union act. Every Member State is bound by both conventions; the Union is bound by their substance, if at all, only as customary international law, and the question is how far a regulation can be found invalid for not leaving the Member States room to do what the conventions require of them.
The second question is the more practical one. The first paragraph of Article 351 TFEU protects “the rights and obligations arising from agreements concluded before 1 January 1958” between Member States and third countries. Both conventions predate the EEC Treaty, and Belgium was a founding Member State. If the obligation to prevent genocide and to ensure respect for the Geneva Conventions requires a transit ban, Article 351 may allow Belgium to impose one notwithstanding Article 7, subject to the duty in its second paragraph to eliminate incompatibilities. The Court is not asked to decide whether genocide is being committed. It is asked whether the Member States’ obligations under those conventions can override the Union’s common rules on what may cross their territory.