EU rules on control of arms exports [Plenary Podcast]

Written by Beatrix Immenkamp,

The EU’s Common Position on arms exports is the only legally binding region-wide arrangement on conventional arms exports. While the Common Position has increased information-sharing and transparency of Member States’ arms exports, there is still scope for enhancing the convergence of national arms-exports policies and for stricter implementation of the criteria defined in the act.

EU Member States’ arms exports in 2015

According to the EU’s 18th Annual Report on arms exports, the value of arms export licenses by Member States in 2015 totalled €195.9 billion, double the amount of €98.4 billion licenced in 2014 (in 2011 – €37.5 billion; in 2012 – €39.8 billion; in 2013 EUR – €36.7 billion). Exports to other Member States made up about 15% of all EU arms exports. Saudi Arabia, Egypt and Qatar were the main destinations of EU arms exports licenses in 2015, with total licences worth €22.2 billion, €19.5 billion and €16.6 billion, respectively. (NB: Normally, the value of export licences exceeds the value of actual exports, sometimes by a very significant amount. For example, in 2015 the licensed value submitted by France was 25 times the value of actual exports. However, while all EU Member States report on licensed value, not all report on the value of actual exports, making comparison of actual export figures difficult.) The combined exports by EU Member States of major conventional weapons accounted for 26% of the global total in 2012–16, making the EU Member States collectively the second largest exporter of major conventional weapons in the world, after the USA (33%), but before Russia (23%). Global transfers of major conventional weapons reached their highest volume for any five-year period since the end of the cold war in 2012-2016.

The Common Position: overview

In 2008, the Council adopted Common Position 2008/944/CFSP (CP) which lays down common rules governing the control of exports of military technology and equipment, replacing an earlier political agreement, the EU Code of Conduct on arms exports (1998). At international level, all EU Member States have signed and ratified the Arms Trade Treaty (ATT), in force since 24 December 2014. The aim of the CP is to enhance the convergence of EU Member States’ arms-export-control policies, since arms exports remain ultimately a matter of national competence in accordance with Article 346 of the Treaty on the Functioning of the EU. In this respect, the CP incorporates eight common criteria (minimum standards) to be taken into account by Member States when assessing export licence applications for military technology and equipment, but also for brokering, transit transactions and intangible transfers of technology. The EU List is aligned with the Wassenaar Arrangement (a voluntary export controls regime for conventional arms and dual-use items), and is regularly updated, most recently on 8 March 2017. The CP is implemented according to the User’s Guide developed within the Council’s Working Party on Conventional Arms Exports (COARM).

The common criteria defining rules on arms exports control

The eight common criteria for assessing arms export licences refer to: (1) respect for the international obligations and commitments of EU Member States, particularly sanctions (including arms embargos) and international agreements; (2) respect for human rights and international humanitarian law by the recipient country; (3) the internal situation in the recipient country; (4) risks to regional peace, security and stability; (5) national security of the Member States as well of their friends and allies; (6) behaviour of the buyer country towards the international community, including its attitude to terrorism and respect for international law; (7) risk of diversion towards an unauthorised end-user or end-use; and (8) compatibility of the arms exports with sustainable development in the recipient country. The assessments are made on a case-by-case basis.

Exchange of information and transparency

The Common Position establishes mechanisms for the exchange of information on arms export licences and on actual exports (including their financial value). It also institutes the obligation to notify licence denials and bilateral consultations when a Member State intends to grant approval for an export licence ‘essentially identical’ to one already denied by another Member State. In 2011, COARM also created an information exchange system between the EU and third countries which aligned themselves with the CP. EU Member States are required by the CP to publish national reports on their arms exports. Moreover, they are required to provide information for the EU’s annual reports on arms exports (published since 1999). These contain data provided by Member States on the financial value of their arms export licence approvals and actual arms exports, broken down by destination and the categories of the EU Military List, as well as information on licence denials and the criteria invoked for the denials. The 18th Annual Report on arms exports, published in May 2017, includes data on arms exports for the 2015 calendar year. Only 23 Member States publish a national report and most Member States submit only partial information to the EU report.

Assessment of the implementation of CP 2008/944/CFSP

The CP is considered to have had a positive impact on EU national arms export policies, through better exchange of information and increased transparency. At the same time, implementation is still the responsibility of the Member States and there is still room for further convergence of national policies, both as regards implementation and the interpretation of the criteria. Recommendations for enhancing compliance with the CP include (i) a peer review process to compare the different systems and methodologies for implementation adopted by the MS; (ii) more sharing of information on recipient countries in COARM; (iii) greater information sharing among Member States on cases of diversion, companies involved in criminal activities, and suspended and revoked licences; (iv) the quarterly exchange of information on licences issued per type and quantity of equipment and technology, as well as information on end-use and end-users for destinations that had recently been subject to en EU embargo; (v) discussions and consultations at Council level in the event of a major policy change by one or several Member States; and (vi) strengthening the language of the CP on human rights evaluations.

Concerns have grown over the past few years over arms exports by EU Member States to countries in the Middle East which are engaged in armed conflict or use imported weapons for internal repression, which constitutes a violation of the criteria laid down in the CP. The Middle East was by far the most important region in terms of arms exports for the EU Member States in 2015, with the value of arms export licences for the region reaching €78.8 billion, up from €31.5 billion in 2014, and €7.6 billion in 2013.

The review of the Common Position

A review of the CP was initially scheduled to take place three years after its adoption. However, in its November 2012 Conclusions, the Council concluded that the CP was still suited for its stated objectives. At the same time, the Council resolved to provide additional guidance regarding the application of the export criteria, to refine the information exchange mechanism, to improve denial notification and consultation mechanisms and to ensure compatibility between the ATT and the CP. On 20 July 2015, the Council adopted new Conclusions on the CP’s review, emphasising the development of an IT platform for information-sharing on licence denials and the adoption of an updated User’s Guide to incorporate ATT-related guidelines. The next review is scheduled to take place in 2018.

The European Parliament (EP) adopted resolutions on the Common Position in 2008, 2013, and 2015, in which the EP called for a strict application of the common criteria and improved transparency. A motion for a new EP resolution on Arms export: implementation of Common Position 2008/944/CFSP (rapporteur Bodil Valero, Greens/EFA) was approved by the Foreign Affairs Committee on 11 July 2017 by 36 votes to 14, with 14 abstentions. The EP plenary will vote on the resolution on 13 September 2017. The motion calls for the setting up of an arms control supervisory body; the creation for a mechanism which sanctions Member States that do not comply with the CP; an expansion of the list of criteria to include the risk of corruption; increasing the transparency of arms export reporting; and creating effective post-shipment controls. The motion notes that arms exports to Saudi Arabia breach the EU’s Common Position and repeats the European Parliament’s call for an EU arms embargo on Saudi Arabia, first made on 25 February 2016.

Read this Plenary At a Glance note on ‘EU rules on control of arms exports‘ in PDF on the Think Tank pages of the European Parliament.

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