2008 EU Council Common Position

Member states of the European Union are major exporters of weapons: five EU members are among the world’s ten largest exporters of major weapons. These are France, Germany, Italy, Spain, and the United Kingdom. See, e.g., S. Wezeman and P. D. Wezeman, ‘Trends in international arms transfers: 2013’, SIPRI Fact Sheet, March 2014, p. 2.  Awareness of the impact of the uncontrolled proliferation of arms on security and development increased sharply when on 2 August 1990, a well-equipped Iraqi army invaded and annexed Kuwait. E. Lawrence, ‘1991 Arms Trade Control Efforts and Their Echoes’, 41 Arms Control Today (July/August 2011). The invasion had succeeded in part due to arms Iraq had procured from China, France, Russia, the United Kingdom, and the United States. The war would be costly. By May 1991, the USA declared arms proliferation a global problem, and called on the permanent members of the UN Security Council to agree to guidelines for transfers of conventional arms. In October 1991, the five permanent members of the UN Security Council adopted a set of ‘Guidelines for Conventional Arms Transfers’. But serious disagreements among Council members prevented the process from continuing beyond the establishment of a UN Register of Conventional Arms. E. Lawrence, ‘1991 Arms Trade Control Efforts and Their Echoes’, 41 Arms Control Today (July/August 2011).

The time was ripe, however, for progress at European level. EU member states had long tried to harmonize their foreign and security policies; arms export controls were one step in this direction. In March 1991, the Council of the EU established the Working Group on Conventional Arms Exports (COARM) to discuss the potential for harmonisation. Eight criteria were adopted by the Council in 1991 and 1992.

Based on this experience, in 1998 member states adopted the EU Code of Conduct on Arms Exports, 1998 EU Code of Conduct on Arms Exports, 8675/2/98 Rev 2, 5 June 1998. under which they committed to ‘high common standards which should be regarded as the minimum for the management of, and restraint in, conventional arms transfers’. M. Bromley, ‘The Review of the EU Common Position on Arms Exports: Prospects for Strengthened Controls’, Non-proliferation Paper No. 7, EU Non-Proliferation Consortium, January 2012, pp. 2-9; C. Poitevin, ‘European Union Initiatives to Control Small Arms and Light Weapons: Towards a More Coordinated Approach’, Non-proliferation Paper No. 33, EU Non-Proliferation Consortium, December 2013, p. 1. The Code of Conduct spelt out eight criteria for assessing arms exports:

1. Respect for international obligations and commitments, such as sanctions and non-proliferation agreements;
2. Respect for human rights in the country of final destination;
3. Internal situation in the country of final destination, such as tensions or armed conflicts;
4. Preservation of regional peace, security and stability;
5. National security of members states as well as friendly and allied countries, including the risk of reverse engineering;
6. Behaviour of the buyer country with regard to the international community;
7. Risk of diversion or re-export under undesirable conditions; and
8. Compatibility of the export with the technical and economic capacity of the recipient country.

The first four criteria required denial of an export licence, while the others were factors to be taken into account in examining an application. Reporting procedures and consultation mechanisms were also outlined. In particular, data on licences and exports would be compiled into a publicly available EU annual report.

Since 2000, a common list has been issued of military equipment covered by the Code of Conduct: the EU Common Military List. EU Common Military List, 2013/C 090/01, 56 Official Journal of the European Union (2013). COARM set up a database of export licence denials that member states can consult. A user’s guide was also issued, including guidelines on interpreting the eight criteria. This extends the Code of Conduct to transit licences and licensed production deals.

In 2003, the European Union also adopted a Common Position on the control of arms brokering. Council of the EU, Common Position 2003/468/CFSP of 23 June 2003 on the control of arms brokering, Official Journal of the European Union, L156, 25 June 2003. This establishes a set of provisions to be implemented through national legislation, such as subjecting brokering transactions to licence application, establishing a system for the exchange of information on brokering activities, and establishing adequate sanctions for violations.

In 2008, the EU Code of Conduct was revised and replaced with the legally-binding EU Common Position. Council of the EU, Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, Official Journal of the European Union, L335, 13 December 2008. This includes a number of changes that had been agreed in 2005 and were already included in the Code of Conduct User’s Guide. In particular, the Common Position formally identifies the range of activities to be covered by arms export licensing systems. The eight criteria were also modified: criterion 2, regarding respect for human rights in the importing country, was expanded to include international humanitarian law; and additional language on the risk of diversion was added to criterion 7. Controls were extended to brokering, transit transactions, and intangible transfers of technology. A Common Position User's Guide was also drawn up and is regularly updated by COARM. User's Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment.

In parallel, the EU Council adopted a Joint Action on 17 March 2008 to support EU activities promoting controls on arms exports and the principles and criteria of the EU Code of Conduct in other states. Council Joint Action 2008/230/CFSP. Since December 2009, the Council has also supported these activities, and allocates significant budget lines for this. Council Decision 2009/1012/CFSP of 22 December 2009; Council Decision 2012/711/CFSP of 19 November 2012.

The Common Position was reviewed in 2012. Discussions were held on how member states may improve the information at the disposal of export licensing officers to assess the risk of diversion.

The EU Common Position seeks to harmonise EU member states’ arms export policies by defining common rules governing control of exports of military technology and equipment. It extends the arms export licensing systems to physical exports, licensed production, brokering, transit, and transhipment, and intangible transfers of software and technology (Art. 1(2).), and under some circumstances to dual-use goods and technology (Art. 6.). However, states maintain final control of all aspects of arms export licensing (Art. 4(2).).

In assessing export licence applications for items included on the EU Common Military List, EU Common Military List, 2013/C 090/01, 56 Official Journal of the European Union (2013). national officers are required to consider eight criteria (Art. 2.):

1. Respect of the international obligations and commitments of member states, including sanctions and non-proliferation agreements;
2. Respect for human rights and international humanitarian law, including the risk of internal repression;
3. Internal situation in the country of final destination, particularly the existence of tensions or armed conflicts;
4. Regional peace, security, and stability, and the risk of aggression of another country;
5. National security of member states and friendly and allied countries;
6. Behaviour of the recipient country with respect to international law, including its attitude to terrorism and international organized crime, non-use of force, and non-proliferation;
7. Risk of diversion, re-export under undesirable conditions, or reverse engineering, while recognizing legitimate defence and security interests and participation in UN or other peacekeeping operations;
8. Compatibility of the export with the technical and economic capacity of the recipient country, minimising the diversion of human and economic resources for armaments.

This necessitates prior verification of end user certificates or similar documents (Art. 5.). Member states must circulate information on applications denied (Art. 4(1).), as well as confidential annual reports on exports (Art. 8(1) and (3).). In addition, the EU publishes an annual report based on contributions from all member states (Art. 8(2)). Adherence to the Common Position by other (non-EU-member) states is encouraged (Art. 11.).