FOURTEENTH ANNUAL REPORT ACCORDING TO ARTICLE 8(2) OF COUNCIL COMMON POSITION 2008/944/CFSP DEFINING COMMON RULES GOVERNING CONTROL OF EXPORTS OF MILITARY TECHNOLOGY AND EQUIPMENT

2012/C 386/01

INTRODUCTION

The present report covers activities undertaken by the EU and its Member States in the framework of the implementation of Council Common Position 2008/944/CFSP (1) throughout 2011 and 2012. As far as data on conventional arms exports are concerned, the report covers the 2011 calendar year.

During 2011 and 2012, the EU and its Member States continued to implement Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment, which replaced in 2008 the EU Code of Conduct on arms exports in force since June 1998. Article 15 of the Common Position establishes that the Common Position shall be reviewed three years after its adoption. On this basis, the EU Council Working Party on Conventional Arms Exports (COARM) initiated preparatory work for the review in the second half of 2011. A thorough assessment of the provisions and implementation of the Common Position has been conducted over the past months and confirmed that the provisions of the Common Position, and the instruments it provides for, continue to properly serve the objectives set by the Council in 2008 and to provide a solid basis for the coordination of Member States’ arms export policies. The Council will continue to work in the months to come on ways to improve the implementation of the Common Position. Preliminary results of the review process are expected to be reflected in Council Conclusions by the end of 2012.

The following third countries have officially aligned themselves with the criteria and principles of Common Position 2008/944/CFSP: Bosnia and Herzegovina, Canada, Croatia, the former Yugoslav Republic of Macedonia, Iceland, Montenegro and Norway. COARM developed in 2011 a specific information exchange system between the EU and certain third countries aligning with the Common Position.

The promotion of effective national arms export control regimes in selected third countries was carried out in 2011 and 2012 in the framework of Council Decision 2009/1012/CFSP of 22 December 2009 on support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third countries (2).

The EU and its Member States continued to play a leading role in the Arms Trade Treaty process, thoroughly preparing for, and actively participating in the 2012 UN Conference on the Arms Trade Treaty in July 2012, and in all the sessions of the Preparatory Committee that took place in 2011 and 2012. The EU remains committed to the swift successful conclusion of the ATT negotiating process in early 2013. EU efforts also focused on outreach to third countries, both through bilateral consultations and through the organisation of regional outreach events in the framework of Council Decision 2010/336/CFSP of 14 June 2010 (3).

I.   IMPLEMENTATION OF COMMON POSITION 2008/944/CFSP

1.   Implementation of Common Position 2008/944/CFSP in national legislation or administrative rules

Member States are requested to apply the provisions of the Common Position in their national export control systems. The Common Position is an evolution of the EU Code of Conduct on arms exports, which it replaced in December 2008.

It includes, inter alia, an extension of controls on brokering, transit transactions and intangible transfers of technologies, as well as strengthened procedures to harmonise Member States’ export policies.

Member States are required to ensure full implementation of the Common Position in their national legislation or administrative rules. The situation regarding national transposition of the Common Position into Member States’ arms export control regimes is reported in the annexed Table C.

2.   User's Guide

The User’s Guide is an essential instrument summarising agreed guidance for the implementation of the operative provisions of the Common Position 2008/944/CFSP, and the interpretation of its criteria. It is referred to in Article 13 of the Common Position.

It has been developed by the Council Working Party on Conventional Arms Exports (COARM) and is updated as appropriate. It is intended for use primarily by export licensing officials, thus substantially contributing, in a pragmatic way, to the convergence of Member States’ arms export control policies and procedures. The Guide is a public document available on the website of the European External Action Service (4).

The User’s Guide contains sections, inter alia, on the following issues:

(a)   Denial notifications and consultations

Denial notifications and bilateral consultations continue to take place via the EU’s electronic coreu system on a daily basis. Information is circulated in a timely manner, ensuring transparency on the arms export policies of Member States vis-à-vis specific countries of final destination and end-users.

The denials notified, as well as the results of bilateral consultations, are included in a central electronic EU database of denials. The database is managed by the European External Action Service, and represents a dynamic system reflecting Member States’ arms export control policies. The number of denials notified in 2011 are indicated in row (d) of the tables in Table A.I (annexed to this report) per destination and per military list category; the number of consultations issued and received by each Member State, and the number of consultations per destination can be found in Tables B.I and B.II respectively.

(b)   Best practice for interpretation of criteria

The best practices for interpretation of the criteria of Common Position 2008/944/CFSP have been developed by the COARM working party, building on national best practices and taking into account input from other relevant stakeholders.

Their purpose is to achieve greater consistency among Member States in the application of the criteria of the Common Position. This is achieved, inter alia, through the identification of factors that need to be considered when assessing export licence applications. The best practices are for the use by export licensing officials and other officials in government departments and agencies. The decision-making process is informed by the expertise of these officials on questions covering regional, legal (e.g. human rights law, public international law), technical, development, as well as security and military related, issues.

3.   Review of Common Position 2008/944/CFSP

Article 15 of the Common Position establishes that the Common Position shall be reviewed three years after its adoption. On this basis, the EU Council Working Party on Conventional Arms Exports (COARM) initiated preparatory work for the review in the second half of 2011 and a thorough assessment of the provisions of the Common Position was conducted 2012. Involvement of relevant stakeholders, such as the European Parliament and civil society, has been ensured through the organisation of a series of dedicated meetings.

On the basis of this assessment exercised, it emerged that the Common Position, and the instruments it provides for, continue to properly serve the objectives set by the Council in 2008 and to provide a solid basis for the coordination of Member States’ arms export policies. Preliminary results of the review process are expected to be reflected in Council Conclusions by the end of 2012.

At the same time, it also emerged that further progress is achievable in the implementation of the Common Position and in ensuring maximum convergence among Member States in the field of exports of conventional arms. To this end, the Council will continue to work in the months to come on ways to improve the implementation of the Common Position.

4.   Outreach

Article 11 of the Common Position calls on Member States to ‘use their best endeavours to encourage other States, which export military technology or equipment to apply the criteria of the Common Position.’ Coordinated outreach activities by Member States and the EU continued throughout 2011 and 2012 to date (see Table D, annexed hereto).

Decision 2009/1012/CFSP allocated funds for five regional outreach seminars and four staff exchanges with third countries closely associated to the EU. Its technical implementation has been entrusted to the German Federal Office of Economics and Export Control (BAFA).

In 2011, the fourth and fifth outreach seminars foreseen by Decision 2009/1012/CFSP took place respectively in Podgorica, Montenegro, in May 2011 for the Western Balkan countries (Albania; Bosnia and Herzegovina, Croatia; the former Yugoslav Republic of Macedonia; Montenegro, and Serbia), and in Kiev, Ukraine, in November 2011, for the Eastern European and Caucasian partners of the European Neighbourhood Policy (Armenia, Azerbaijan, Belarus, Georgia, Republic of Moldova, and Ukraine).

As far as the staff exchanges foreseen by the Council Decision are concerned, Hungary hosted a study visit for Croatian arms export control officials in June 2011, Portugal hosted a study visit for officials from the former Yugoslav Republic of Macedonia and from Montenegro in October 2011. Study visits for arms export control personnel from Croatia, the former Yugoslav Republic of Macedonia and Montenegro was also hosted by Poland in November 2011. Finally, the Czech Republic hosted a study visit for officials from Croatia, the former Yugoslav Republic of Macedonia, and Montenegro in January 2012. These staff exchanges enabled officials from EU candidate countries to benefit from Member States’ experience regarding the implementation in day-to-day practice of arms exports-related customs issues, brokering and transit controls, reporting and transparency, exporters’ internal compliance programmes, and the national implementation of international and EU sanctions.

In the second half of 2012, work has started to prepare the adoption of a new Council Decision on outreach activities to promote the principles and criteria of the Common Position among third countries.

5.   Political dialogue meetings

Political dialogue meetings on arms export control issues were held on a biannual basis in 2011 and 2012 with Norway, Canada, Ukraine, the United States, the Russian Federation and, in 2012, for the first time with Serbia.

These political dialogues provided a forum for fruitful discussions on matters of mutual interest such as export policies to specific destinations, compliance and control issues, and the Arms Trade Treaty process.

6.   Update of the Common Military List of the European Union

The Common Military List of the European Union has the status of a commitment in the framework of the Common Foreign and Security Policy. It is reproduced as the scope of defence-related products annexed to Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community (5).

On 27 February 2012, the Council adopted an updated version of the list which takes into account changes in the Wassenaar Arrangement’s Munitions List agreed at the 2011 Plenary meeting of the Wassenaar Arrangement. The updated version of the Common Military List of the European Union was published in the Official Journal of the European Union C 85 of 22 March 2012, p. 1.

7.   Arms brokering

The Council agreed that the information sharing commitments set out in Council Common Position 2003/468/CFSP of 23 June 2003 on the control of arms brokering (6) should be implemented via the mechanism laid down in Common Position 2008/944/CFSP. In accordance with Article 5 of Common Position 2003/468/CFSP, Member States have put in place separate arrangements for the exchange of information on brokering licences granted and denied. Furthermore, in accordance with Articles 4 and 5 of Common Position 2003/468/CFSP, those Member States who have required brokers to obtain a written authorisation to act as brokers and/or have established a register of arms brokers, have put in place separate arrangements for the exchange of relevant information on registered brokers. Information on brokering licences granted and denied by EU Member States can be found in the annexed Table A.III.

Detailed information on national implementation of the Common Position on brokering or, for those Member States which have not yet fully implemented the Common Position, information on the state of play of its implementation, is provided in the annexed Table C.

8.   Intra-EU defence transfers

Directive 2009/43/EC simplifying intra-EU defence transfers provides that Member States shall adopt and publish, no later than 30 June 2011, the laws, regulations and administrative provisions necessary to comply with it. Member States are bound to apply the adopted measures as from 30 June 2012. Since the adoption of the Directive in 2009, Member States have held discussions in the context of a Commission-chaired committee on how best to address issues raised by the transposition of the Directive into their national legislation. Based on the input of this committee, the Commission adopted on 11 January 2011 a Recommendation (7) on the certification of defence undertakings under Article 9 of Directive 2009/43/EC. The Annex of the Directive that lays down the scope of defence items covered by the Directive has been amended according to updates of the EU common military list by Commission Directives 2010/80/EU (8) and 2012/10/EU (9) and a further update should take place by the end of 2012.

9.   Dialogue with the European Parliament and NGOs

Following the temporary suspension of meetings with the European Parliament pending the establishment of the European External Action Service, the dialogue between the COARM working party and the European Parliament resumed on 5 December 2011 with the hearing by the Sub-Committee on defence and security of the COARM Chair.

In accordance with past practice, COARM meetings with non-governmental organisations were organised in the period 2011-2012 on a six-monthly basis.

II.   ARMS TRADE TREATY (ATT)

1.   Engagement in the sessions of the Preparatory Committee

Achieving a legally binding and robust Arms Trade Treaty (ATT) has been among the top foreign policy priorities for the European Union. An ATT can make a substantial contribution to the regulation of the international trade in arms, making it more transparent and more responsible, through the establishment of common, high international standards. The ATT process reached a crucial stage with the convening of the July 2012 UN Conference mandated to negotiate the Treaty.

Throughout the period of 2011-2012, the European Union and its Member States closely supported and participated in the UN-led Arms Trade Treaty process. In preparation to the sessions of the ATT Preparatory Committee (February and July 2011, and February 2012) and to the July 2012 UN Conference, a dedicated sub-group of the COARM working group has met regularly to share views and coordinate positions, thereby allowing the EU to continue to be a very active and visible player in the ATT process. On the basis of EU coordinated positions, the EU and its Member States also held extensive consultations with third countries, and in particular major arms-manufacturing countries, and with the Chairman of the UN Conference, Ambassador Roberto García Moritán.

While recognising that significant progress was reached at the UN Conference, the EU regrets that no agreement on a final text of the Treaty could be reached. Strong efforts will continue to be made towards the early and successful conclusion of the negotiating process at the final UN conference in early 2013, which will complete negotiations on the basis of the draft Treaty of 26 July 2012.

2.   Outreach in the context of Council Decision 2010/336/CFSP of 14 June 2010 on EU activities in support of the Arms Trade Treaty

Since 2009, the EU has been particularly active in promoting the ATT process vis-à-vis third countries, and with the aim of increasing participation in the UN consultations and improving understanding by all UN Member States of the different elements of a future treaty.

On the basis of the results achieved through the first series of outreach events funded by Council Decision 2009/42/CFSP (10), the EU decided to increase efforts to enhance participation in and better understanding of the ATT process with the adoption of Decision 2010/336/CFSP.

In 2011 and 2012, outreach seminars in the framework of the 2010 Council Decision were held in Casablanca, Morocco (February 2011) for Northern, Western and Central Africa countries, in Montevideo, Uruguay (April 2011) for American and Caribbean countries, in Bali, Indonesia (June 2011) for East Asia and Pacific countries, in Nairobi, Kenya, for Eastern and Southern African countries (February 2012), in Beirut, Lebanon for Middle East countries (March 2012) and in Belgrade, Serbia, for European and Caucasus countries (April 2012). Side events were also organised in the margins of the ATT Preparatory Committee sessions, held in New York in February and July 2011, and in the margins of the 66th session of the UN General Assembly First Committee in October 2011. A final event was held in New York in the margins of the July 2012 UN Conference on the Arms Trade Treaty.

III.   PRIORITY GUIDELINES FOR COARM FOR THE NEAR FUTURE

With the adoption of the legally-binding Common Position 2008/944/CFSP, the fundamental elements of a common approach to the control of conventional arms exports by Member States have been identified. In spite of the progress represented by the adoption of the Common Position, there is still work to be done, especially in the areas which have not been addressed in the past, or where further work is necessary to consolidate and build on the results achieved. The review of the Common Position, as mandated by its Article 15, has so far enabled the identification of areas where the full potential of the text of the Common Position could be better exercised at the implementing level.

The following are priority guidelines for the near future:

(1)  OJ L 335, 13.12.2008, p. 99.

(2)  OJ L 348, 29.12.2009, p. 16.

(3)  OJ L 152, 18.6.2010, p. 14.

(4)  http://www.eeas.europa.eu/non-proliferation-and-disarmament/arms-export-control/index_en.htm

(5)  OJ L 146, 10.6.2009, p. 1.

(6)  OJ L 156, 25.6.2003, p. 79.

(7)  OJ L 11, 15.1.2011, p. 62.

(8)  OJ L 308, 24.11.2010, p. 11.

(9)  OJ L 85, 24.3.2012, p. 3.

(10)  OJ L 17, 22.1.2009, p. 39.