7 European Union arms exports
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| Common Position defining rules governing the control of exports of military technology and equipment
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| Legal base | Article 15 EU; unanimity
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| Deposited in Parliament | 4 March 2005
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 4 July 2005
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| Previous Committee Report | None
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| To be discussed in Council | 18 July GAERC
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| Committee's assessment | Politically important
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| Committee's decision | For debate in European Standing Committee B
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Background
Section 1.15 7.1 In his helpful Explanatory Memorandum, the
Minister of State for Europe (Mr Douglas Alexander) recalls that
the 1998 European Union Code of Conduct on Arms Exports was agreed
as a Council Declaration, and represents minimum standards all
Member States agree to apply. He says that, since its adoption,
the UK has considered all export licence applications against
its criteria, with the Code and the UK's national criteria
being consolidated into the Consolidated EU and National Export
Licensing Criteria in 2000. A review of the EU Code was initiated
in October 2003 "to ensure that it was dealing sufficiently
with modern defence export practices".
The draft Common Position
Section 1.16 7.2 The Minister describes the outcome of the
review, as set out in the Common Position, as follows:
"The Code of Conduct has been renamed to better reflect the
strength of its provisions. It will be known as 'The Rules Governing
the Control of Exports of Military Technology and Equipment'.
The revisions it contains require Member States to apply the criteria
within the code under an increased number of circumstances. These
include assessing goods in transit, trans-shipments, licences
for trafficking and brokering and transfers of intangible technology.
"In addition to these amendments it was proposed that a Common
Position should be agreed that would make the Rules legally binding.[23]
This puts a legal obligation (rather than political as before)
on Member States to follow the Rules when taking licensing decisions.
It also obliges Member States to exchange information on those
decisions with other Member States encouraging the development
of common standards."
The Government's view
Section 1.17 7.3 The Minister says:
"This review took place within the EU Working Party on Conventional
Arms Exports. A number of amendments to the Code were proposed.
These included making explicit the requirement for the criteria
within the Code to apply to goods in transit, trans-shipment,
licences for trafficking and brokering and the transfer of intangible
technology. This would significantly increase the number of situations
where the Code is applied across the EU and is in line with UK
practice.
"The UK already applies the Rule's criteria
when assessing licence applications against our Consolidated EU
and National Criteria. We believe that the Rules represent minimum
standards that should be taken into consideration when evaluating
export licences. The adoption of legally binding set of Rules
by all Member States therefore represents a strengthening of common
principles on defence export across the EU.
"The UK supports this strengthening of arrangements
for exports worldwide. A decision on the revision of the Code
does not prejudge further discussions on additional measures for
controlling exports to specific countries."
Section 1.18 7.4 On the legal and procedural
aspects, the Minister explains that
"Section 9(5) of the Export Control Act 2002
requires the Secretary of State for Trade and Industry to 'have
regard to any guidance' which relates to their ability to issue
licenses. This guidance is stated to be the consolidated national
and EU arms export licensing criteria. This is based heavily
on the criteria within the EU code of conduct. Adoption of this
common position would require amendment to this guidance, but
not to any UK primary or secondary legislation."
It would not increase compliance costs for UK companies
applying for strategic export licences.
Section 1.19 7.5 On subsidiarity, the
Minister says that
"the
Rules set minimum standards that all Member States have agreed
to apply when assessing licence applications for the export of
military equipment and technology. The adoption of this Common
Position will make it legally binding for Member States to ensure
their national policies conform with the criteria of the Rules.
However, the final decisions on licence applications remain a
matter for national governments."
Section 1.20 7.6 He says that he expects the
Common Position to be agreed at the 18 July 2005 General Affairs
and External Relations Council (GAERC).
Conclusion
Section 1.21 7.7 We are grateful to the Minister
for his efforts to enable this important matter to be properly
scrutinised, both through an earlier letter and this Explanatory
Memorandum. But there is no mention in either document of the
controversial elements of this proposal, particularly the opposition
of the US Administration to the proposed lifting of the arms embargo
relating to the Peoples' Republic of China (following the 1989
Tiananmen Square massacre) which Member States favour once the
revised Code of Conduct is in being.
Section 1.22 7.8 Given its controversial nature,
we recommend the draft Common Position for debate in European
Standing Committee B, prior to the 18 July General Affairs and
External Relations Council.
23 Article 15 TEU says that "Common Positions
shall define the approach of the Union to a particular matter
of a geographical or thematic nature Member States shall ensure
that their national policies conform to the common positions". Back
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