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

(2019/C 437/01)

INTRODUCTION

The present report covers statistics on licences and exports of conventional arms from EU Member States during the 2018 calendar year. It also covers activities undertaken by the EU and its Member States in the framework of the implementation of Council Common Position 2008/944/CFSP (1), (2) throughout 2018 and 2019, in addition to those activities mentioned in the twentieth annual report.

The report is compiled by the European External Action Service, based on data provided by the national authorities of Member States. The Council Working Party on Conventional Arms Exports (COARM) supports a permanent dialogue among Member States on the coherent application of the common rules governing control of arms exports. The work of COARM is also directed towards further convergence of this policy (Common Position 2008/944/CFSP defining common rules governing the 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).

In addition, the report contains non-exhaustive information on intra-EU transfers of defence-related products that are governed by Directive 2009/43/EC of the European Parliament and of the Council (3).

The following third countries have officially aligned themselves with the criteria and principles of Common Position 2008/944/CFSP: Albania, Bosnia and Herzegovina, Canada, North Macedonia, Georgia, Iceland, Montenegro and Norway. An information exchange system between the EU and Norway has been in place since 2012.

The promotion of effective national arms export controls and the principles and criteria of Common Position 2008/944/CFSP in selected third countries was pursued in the period covered by this report with the adoption of Council Decision (CFSP) 2018/101 (4), which secured the follow up to Council Decision (CFSP) 2015/2309 (5). EU outreach efforts also significantly increased on universalisation and implementation of the Arms Trade Treaty, with a large number of activities carried out during the same period under Council Decision (CFSP) 2017/915 (6).

I.   IMPLEMENTATION OF COMMON POSITION 2008/944/CFSP

1.   Implementation of Common Position 2008/944/CFSP

The Common Position includes, inter alia, assessment criteria for export licence applications; an extension of controls on brokering, transit transactions and intangible transfers of technology; and strengthened procedures to promote the convergence of Member States’ export policies by means of the exchange of information on denied exports, as well as guidance with regard to end-user documentation, transparency and reporting.

The aim of the Common Position is to ensure the responsible export of arms by Member States, namely that the latter does not contribute to internal repression, regional instability or international aggression, serious violations of Human Rights or of International Humanitarian Law. A responsible arms trade policy contributes to the maintenance of international peace and security. Also, the strict application of the Common Position is designed to prevent the diversion of arms to unintended end-users.

Denial notifications and consultations

The Common Position foresees the notification of licence denials. When a Member State is reviewing a licence application for a transaction that is essentially identical to one denied before by another Member State, the Common Position foresees a consultation process. This is done via the COARM Online Information System. The system has already demonstrated that it further supports transparency between Member States vis-à-vis specific countries of final destination and end users. In 2018 the online system has further proven its value in streamlining the flow of information among Member States.

The number of denials notified in 2018 is 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.

2.   User’s Guide

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

It was developed by the COARM Working Party and is updated periodically: the last update was done as part of the review of the Common Position, which took place in 2018 and the first half of 2019. The User’s Guide 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.

With a view to supporting the operationalisation of the criteria of Common Position 2008/944/CFSP, the Guide presents good practices that have been developed by the COARM Working Party, building on national best practices and taking into account input from other relevant stakeholders, including civil society. 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 use by licensing officers and other officials in relevant government departments and agencies. The decision-making process is informed by the expertise of these officials on matters covering regional, legal, judicial, technical, development, as well as security and military-related issues.

The Guide is a public document available on the website of the European External Action Service (7).

3.   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.’ Intensive outreach activities, carried out by both the EU and by Member States individually, continued in 2018 and 2019, as outlined in Table D, annexed to this report.

Under Decision (CFSP) 2018/101, implemented by the German Federal Office for Economic Affairs and Export Control (BAFA), a number of regional workshops, study visits and individual assistance events took place. In addition, further regional outreach activities, tailored national assistance programmes and ad hoc individual assistance workshops were carried out under Decision (CFSP) 2017/915, supporting the Arms Trade Treaty’s effective implementation and universalisation (further information on the latter activities is reported in Section II.2).

4.   Political Dialogue meetings

Political Dialogue meetings on arms export control issues were held in 2018 and 2019 with Norway, Canada, the United States and Ukraine. 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.

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

The EU Common Military List includes the military items that Member States shall enable export control for, in line with article 12 of the Common Position. It is identical to the list of defence-related products annexed to Directive 2009/43/EC.

As this report covers statistics on conventional arms exports from EU Member States during the 2018 calendar year, the CML included is that relating to 2018 that was adopted by the Council on 26 February 2018, and that takes into account the changes in the Wassenaar Arrangement’s Munitions List agreed at the 2017 Plenary meeting of the Arrangement. This updated version of the CML was published in the Official Journal of the European Union of 15 March 2018 (8). The CML that was valid in 2019 was published in the Official Journal on 12 March 2019 with reference 2019/C 95/01 (9).

6.   Arms brokering

In accordance with Article 5 of Council Common Position 2003/468/CFSP (10), Member States have put in place separate arrangements for the exchange of information on brokering licences granted and denied. Furthermore, those Member States who require 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 attached Table A.III.

Detailed information on national implementation of Common Position 2003/468/CFSP is provided in the attached Table C.

7.   Dialogue with stakeholders: European Parliament, civil society and industry

Dialogue with the European Parliament on arms export control issues usually takes place annually with the hearing of a European External Action Service senior official. During 2018 and 2019, the EEAS also had contacts with the EP’s Rapporteur on arms export control and answered a significant number of parliamentary questions on arms exports issues.

In accordance with past practice, COARM meetings with non-governmental organisations were organised in the period 2018-2019 on a six-monthly basis. COARM also invited once a year representatives from industry to its meetings.

II.   ARMS TRADE TREATY (ATT)

1.   Involvement in the ATT: Conferences of States Parties

As with previous Conferences of States Parties (CSP) (reported on in earlier Annual Reports), the EU and its Member States played an active part in the Fourth Conference of States Parties, held in Tokyo on 20-24 August 2018 (reported on in the 20th Annual Report), and the Fifth Conference of States Parties, held in Geneva on 26-30 August 2019. The Presidents of the Fourth and Fifth CSPs each attended a meeting of COARM during their respective Presidencies.

The Fifth Conference of States Parties, presided over by Ambassador Jānis Kārkliņš of Latvia, attempted to switch gradually the focus from institution building to discussions of substantive issues pertaining to implementation of the Treaty, including through support for the work of the three Working Groups (Effective Treaty Implementation, Universalisation, and Transparency and Reporting), and for the activities undertaken by the Voluntary Trust Fund and Sponsorship Programme. The Conference set goals for the next year, with a focus on implementation of action-oriented decisions on gender and gender-based violence (GBV); the risks of diversion; a new work-stream on transit and transshipment; the need to increase the number and timeliness of national reports; and, in the light of the large amount of unpaid assessed contributions, measures to tackle the serious financial situation. On the Voluntary Trust Fund, it expressed appreciation to the States that had made voluntary financial contributions and encouraged all other States, in a position to do so, to contribute to the Fund. It decided on its budget for 2019/2020, and, in the light of the unpaid contributions of States, called on States that had not done so to address their financial obligations in a prompt and timely manner. The Conference elected Ambassador Carlos Foradori of Argentina as President of the Sixth Conference of States Parties in 2020. The meeting saw the active engagement of States Parties and Observers, as well as of civil society, academia and industry representatives. States Parties are in agreement that attention should continue to be on effective implementation and universalisation of the Treaty.

2.   The EU Implementation Support Programme under Decision (CFSP) 2017/915

Further to its entry into force in December 2014 and with so far 105 States Parties (as of 28 October 2019), the ATT continues to face challenges in terms of its universalisation and its effective implementation by States Parties.

To contribute to addressing these challenges, the EU adopted an ambitious implementation support programme for third countries (Council Decision (CFSP) 2017/915). This programme is implemented by both the German Federal Office for Economic Affairs and Export Control (BAFA) and Expertise France. It currently provides for assistance to a total of 18 third countries as long term partners (Roadmap partners) and 14 third countries as ad-hoc partners, on their request, in strengthening their arms transfer systems in line with the requirements of the Treaty. Details of the activities carried out under the EU programme during 2018 and 2019 (to end August 2019) can be found in the attached Table D.

III.   PRIORITY GUIDELINES FOR COARM FOR THE NEAR FUTURE

COARM performed a thorough review during 2018 and the first half of 2019 of the implementation of the Common Position and the fulfilment of its objectives, 10 years after its adoption, as mandated by Council Conclusions 10900/15 from July 2015. The EU and its Member States agreed that, with the adoption of Common Position 2008/944/CFSP, the core elements of a common approach to the control of conventional arms exports by Member States are in place. In spite of the progress represented by the adoption of the Common Position, there is still work to be done, notably at the implementing level of the Common Position.

The following are priority guidelines for the near future:

BRIEF DESCRIPTIONS OF EU COMMON MILITARY LIST CATEGORIES (11)

(1)  Legally binding for EU Member States.

(2)  Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment (OJ L 335, 13.12.2008, p. 99).

(3)  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 (OJ L 146, 10.6.2009, p. 1).

(4)  Council Decision (CFSP) 2018/101 of 22 January 2018 on the promotion of effective arms export controls (OJ L 17, 23.1.2018, p. 40).

(5)  Council Decision (CFSP) 2015/2309 of 10 December 2015 on the promotion of effective arms export controls (OJ L 326, 11.12.2015, p. 56).

(6)  Council Decision (CFSP) 2017/915 of 29 May 2017 on Union outreach activities in support of the implementation of the Arms Trade Treaty (OJ L 139, 30.5.2017, p. 38).

(7)  https://eeas.europa.eu/headquarters/headquarters-homepage/8465/arms-export-control_en

(8)  OJ C 98, 15.3.2018, p. 1.

(9)  OJ C 95, 12.3.2019, p. 1.

(10)  Council Common Position 2003/468/CFSP of 23 June 2003 on the control of arms brokering (OJ L 156, 25.6.2003, p. 79).

(11)  The full description of the categories as adopted by the Council on 26 February 2018 (OJ C 98, 15.3.2018, p. 1) can be found on: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018XG0315(01)&from = EN