TWENTY-FOURTH 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

(2023/C 59/01)

INTRODUCTION

The present report covers data on granted and denied licences and exports of conventional arms from EU Member States during calendar year 2021. 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 2021.

The report is compiled by the European External Action Service (EEAS), based on data provided by Member States on their arms exports in 2021. The subgroup on Conventional arms exports (COARM) of the Council Working Party on Non-Proliferation and Arms Exports supports a permanent dialogue among Member States on the coherent application of the common rules governing control of arms exports. In the context of the pandemic, COARM continued to meet in an online setting during the first months of 2021, and Member States continued their use of the COARM online system for information exchange and virtual tour de tables on sensitive destinations. In the second half of the year, COARM resumed its monthly meetings in person, in Brussels. 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, as reviewed in 2019: 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 implementation of Council Decision (CFSP) 2020/1464 (4). EU outreach efforts also continued 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 (5), as amended by Council Decision (CFSP) 2020/1134 (6) and Council Decision (CFSP) 2021/814 (7). This ATT Outreach Project was subsequently renewed with the adoption of Council Decision (CFSP) 2021/2309 (8).

In addition to outreach activities implemented by BAFA and Expertise France, the Council agreed to support the Arms Trade Treaty Secretariat with the adoption of Decision (CFSP) 2021/649 of 16 April 2021 on Union support for activities of the ATT Secretariat in support of the implementation of the Arms Trade Treaty (9). This decision falls in line with the general EU policy objective to strengthen the multilateral framework, including in the field of arms export control.

I.   IMPLEMENTATION OF COMMON POSITION 2008/944/CFSP

1.   Follow-up to the review of Common Position 2008/944/CFSP

In 2021, COARM continued its work on the implementation of the deliverables included in the Council Conclusions of 16 September 2019 (10) regarding the review of the Common Position 2008/944 CFSP on arms export control. Following the launch in October 2020 of an online database (11) on the EEAS website, allowing the public to consult and analyse the data on Member States’ arms exports in a user-friendly manner, the EEAS has been preparing a closed database only accessible to licensing officers from Member States, with country pages containing relevant open source information on potential destinations of European military equipment. This database has been launched in the spring of 2022. The licensing officers database is expected to contribute to further convergence in the application of the Common Position by Member States.

Furthermore, COARM prepared a Council Decision on end-user certificates for the export of small arms and light weapons and their ammunition (12). This Decision was adopted in January 2021 and entered into force on 31 December 2021. This Decision also contributes to further convergence among Member States’ arms export policies.

In July 2021, COARM met for the first time in a setting including licensing and enforcement officers, allowing for an exchange of information and best practices on enforcement challenges in the field of arms exports.

2.   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 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 2021 the online system has proven its value in facilitating the flow of information among Member States, particularly when in the context of the pandemic delegates were still prevented from meeting in person.

The number of denials notified in 2021 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. Please note that defence companies in Member States are generally aware of the restrictions on arms export policies; companies will usually refrain from applying for a license if they know it will be denied. A low number of denials therefore does not indicate anything in terms of how restrictive or not the export policy is.

3.   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 COARM 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. In its Conclusions of 16 September 2019 the Council welcomed the amended User’s Guide (13).

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 COARM, 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 (14).

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.’ Intensive outreach activities, carried out by both the EU and by Member States individually, continued in 2021, as outlined in Annex D.

Under Decision (CFSP) 2020/1464, implemented by the German Federal Office for Economic Affairs and Export Control (BAFA), a number of mostly virtual assistance events took place. In addition, further regional outreach activities, tailored national assistance programmes and ad hoc individual assistance workshops were virtually carried out under Decision (CFSP) 2017/915 (amended by Decision (CFSP) 2020/1134 and Decision (CFSP) 2021/814), and under follow-up Decision (CFSP) 2021/2309, supporting the Arms Trade Treaty’s effective implementation and universalisation (further information on the latter activities is reported in section II.2).

5.   Political Dialogue meetings

Political Dialogue meetings on arms export control issues were held in 2021 with Norway and the United States. 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.

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

The EU Common Military List (CML) includes the military items that Member States shall require export licenses 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.

The EU CML takes into account the changes in the Wassenaar Arrangement’s Munitions List agreed at the Plenary meetings of the Arrangement. The EU CML in use in 2021 was published in the Official Journal of the European Union of 13 March 2020 (15). Since the Wassenaar Arrangement Plenary did not take place at the end of 2020, there was no update to the EU CML in 2021.

7.   Arms brokering

In accordance with Article 5 of Council Common Position 2003/468/CFSP (16), 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.

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

During 2021, COARM was briefed by and had a discussion with Ms Hannah Neumann, member of the European Parliament, regarding her proposal for a regulation on arms exports. The EEAS answered a significant number of parliamentary questions on arms exports issues.

In accordance with past practice, COARM meetings with non-governmental organisations (such as Saferworld, Conflict Armament Research etc.) were organised regularly. COARM also invited representatives from the defence industry to its meetings, as well as from ICRC, think tanks working on topics related to the arms trade, and other stakeholders.

II.   ARMS TRADE TREATY (ATT)

1.   Involvement in the ATT: Conferences of States Parties

As with previous Conferences of States Parties (CSP), the EU and its Member States played an active part in the run-up to the Seventh Conference of States Parties, conducted in a hybrid format from 30 August until 2 September 2021, allowing for participation of around 300 people from the 110 States Parties, the 31 Signatories and other States and stakeholders (civil society, defence industry); the majority following the conference online. The Conference agreed on a clear plan for the following cycle to be presided by Germany. The Conference also endorsed a clear structure for arranging the payment calendar with States in long-term arrears. The initial meeting of the Diversion Information Exchange Forum was postponed to the next Conference of States Parties in order to enable in person attendance for confidential discussions amongst States Parties. Sierra Leone, as the Presidency, proposed a set of measures to prevent diversion as a way to strengthen ATT implementation, including expert discussions concerning post-delivery cooperation experiences from both exporter and importer perspectives. China participated for the first time as a State Party, propagating their national arms export legal framework and policy of no exports to non-state actors.

The EU delivered 5 statements: on stockpile management, transparency, universalisation, support to the ATT secretariat, and implementation, and submitted a general statement in writing. The EU also co-hosted two virtual side-events related to EU funded projects. On 2 September 2021 the EU’s support to the ATT Secretariat was launched: EUR 1,4 million for the coming 2 years in order to support the ATT Secretariat and ensure they can guide national Points of Contact, build a needs database and organise train-the-trainer sessions. The second side-event showcased the existing ATT Outreach Project implemented by German export control authority BAFA and by Expertise France.

2.   The EU’s ATT Implementation Support Programme under Decision (CFSP) 2017/915, amended by Decision (CFSP) 2020/1134 and Decision (CFSP) 2021/814, and Decision (CFSP) 2021/2309

Further to its entry into force in December 2014 and with so far (17) 112 States Parties, 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 (Decision (CFSP) 2017/915, amended by Decision (CFSP) 2020/1134 and by Decision (CFSP) 2021/814). This ATT Outreach Project was subsequently renewed with the adoption of Decision (CFSP) 2021/2309. 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 third countries, 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 2021 can be found in Table D.

III.   PRIORITY GUIDELINES FOR COARM FOR THE NEAR FUTURE

COARM is starting preparations for the review of Council Common Position 2008/944/CFSP, which will be finalised in 2024 in accordance with the Council Conclusions of 16 September 2019. In the rapidly changing EU defence environment, COARM is committed to ensure arms export policies continue to fit well into the broader EU security and defence landscape.

In this context, COARM is considering the export control dimension of developments in the area of EU defence — in particular the European Peace Facility (see below), and the European Defence Fund.

Finally, COARM will continue to actively reach out to other relevant groups in order to connect to adjacent fields of work, including the Working Party on Dual-Use Goods and the Customs Cooperation Working Party. Links between COARM and national enforcement officers dealing with arms export control are being strengthened.

IV.   EUROPEAN PEACE FACILITY ASSISTANCE MEASURES

With the approval of the Council Decision establishing the European Peace Facility (EPF) on 22 March 2021 (18), the EU has created a robust mechanism dedicated to supporting partners on military and defence matters. This follows the ambition outlined in the Global Strategy for the European Union’s Foreign and Security Policy and as further elaborated in the Strategic Compass.

With the EPF, the EU covers the common costs of military CSDP missions/operations, and can provide support to partners comprising military assistance, training, equipment (including arms and ammunition) to improve their ability to prevent and respond to crises, better protect civilians and thereby strengthen international security and ultimately our own security.

In 2021, a large portion of support under the assistance measures pillar was dedicated to the military components of African-led Peace Support Operations as previously funded under the African Peace Facility. Other assistance measures served to provide military equipment in relation to CSDP missions and operations, such as in Mozambique, and strengthen the military and defence capacities of partners in the Eastern Neighbourhood and the Western Balkans.

The type of equipment to be provided to partners’ armed forces followed a partner-driven, case-by-case approach, in line with an integrated methodological framework to ensure adequate risk assessments and mitigating measures. In 2021, no items on the EU Common Military List were delivered under an EPF assistance measure.

Please see Table F for an overview of EPF assistance measures adopted in 2021.

BRIEF DESCRIPTIONS OF EU COMMON MILITARY LIST CATEGORIES (19)

(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), amended by Council Decision (CFSP) 2019/1560 of 16 September 2019 (OJ L 239, 17.9.2019, p. 16).

(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) 2020/1464 of 12 October 2020 on the promotion of effective arms export controls (OJ L 335, 13.10.2020, p. 3).

(5)  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).

(6)  Council Decision (CFSP) 2020/1134 of 30 July 2020 amending Decision (CFSP) 2017/915 on Union outreach activities in support of the implementation of the Arms Trade Treaty (OJ L 247, 31.7.2020, p. 24).

(7)  Council Decision (CFSP) 2021/814 of 20 May 2021 amending Decision (CFSP) 2017/915 on Union outreach activities in support of the implementation of the Arms Trade Treaty (OJ L 180, 21.5.2021, p. 151).

(8)  Council Decision (CFSP) 2021/2309 of 22 December 2021 on Union outreach activities in support of the implementation of the Arms Trade Treaty (OJ L 461, 27.12.2021, p. 78).

(9)  Council Decision (CFSP) 2021/649 of 16 April 2021 on Union support for activities of the ATT Secretariat in support of the implementation of the Arms Trade Treaty (OJ L 133, 20.4.2021, p. 59).

(10)  https://www.consilium.europa.eu/media/40660/st12195-en19.pdf.

(11)  https://webgate.ec.europa.eu/eeasqap/sense/app/75fd8e6e-68ac-42dd-a078-f616633118bb/sheet/74299ecd-7a90-4b89-a509-92c9b96b86ba/state/analysis.

(12)  Council Decision (CFSP) 2021/38 of 15 January 2021 establishing a common approach on the elements of end-user certificates in the context of the export of small arms and light weapons and their ammunition (OJ L 14, 18.1.2021, p. 4).

(13)  https://www.consilium.europa.eu/media/40659/st12189-en19.pdf.

(14)  https://www.eeas.europa.eu/eeas/disarmament-non-proliferation-and-arms-export-control-0_en.

(15)  OJ C 85, 13.3.2020, p. 1.

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

(17)  In October 2022.

(18)  Council Decision (CFSP) 2021/509 of 22 March 2021 establishing a European Peace Facility, and repealing Decision (CFSP) 2015/528 (OJ L 102, 24.3.2021, p. 14).

(19)  The full description of the categories as adopted by the Council in 2020 (2020/C 85/1) can be found on: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1584081152567&uri=OJ:JOC_2020_085_R_0001.