Select Committee on European Scrutiny Third Report


20 Control of exports of military technology and equipment

(28092)

Common Position Defining Common Rules Governing the Control of Exports of Military Technology and Equipment

Legal baseArticle 15 EU; unanimity
Deposited in Parliament30 November 2006
DepartmentForeign and Commonwealth Office
Basis of considerationEM of 30 November 2006
Previous Committee ReportNone
To be discussed in Council11-12 December 2006 General Affairs and External Relations Council
Committee's assessmentPolitically important
Committee's decisionCleared

Background

20.1 The background is set out in the preamble, which recalls that Member States:

—  intend to build on the Common Criteria agreed at the Luxembourg and Lisbon European Councils in 1991 and 1992, and on the European Union Code of Conduct on Arms Exports adopted by the Council in 1998;

—  recognise the special responsibility of military technology and equipment exporting States;

—  are determined to set high common standards which shall be regarded as the minimum for the management of, and restraint in, transfers of military technology and equipment by all Member States, and to strengthen the exchange of relevant information with a view to achieving greater transparency;

—  are determined to prevent the export of military technology and equipment which might be used for internal repression or international aggression or contribute to regional instability;

—  intend to reinforce cooperation and to promote convergence in the field of exports of military technology and equipment within the framework of the Common Foreign and Security Policy (CFSP);

—  have taken complementary measures against illicit transfers, in the form of the EU Programme for Preventing and Combating Illicit Trafficking in Conventional Arms;

—  adopted Joint Action 2002/589/CFSP on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons;

—  adopted Common Position 2003/468/CFSP on the control of arms brokering;

—  support the UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, adopted in 2001;

—  on 13 June 2000, adopted the European Union Common Military List, which is regularly reviewed (amended most recently in 2005),[41] taking into account, where appropriate, similar national and international lists.

20.2 The preamble also notes:

—  that States have a right to transfer the means of self­defence, consistent with the right of self­defence recognised by the UN Charter;

—  the wish of Member States to maintain a defence industry as part of their industrial base as well as their defence effort;

—  that the strengthening of a European defence technological and industrial base, which contributes to the implementation of the Common Foreign and Security Policy, in particular the Common European Security and Defence Policy, should be accompanied by co-operation and convergence in the field of military technology and equipment;

—  that Member States intend to strengthen the European Union's export control policy for military technology and equipment through the adoption of this Common Position, which updates and replaces the European Union Code of Conduct on Arms Exports

The draft Common Position

20.3 Article 1 requires each Member State to assess the export licence applications made to it for items on the EU Common Military List mentioned in Article 12 on a case­by­case basis against the criteria detailed in Article 2.

20.4 The export licence applications mentioned in paragraph 1 shall include:

—  applications for licences for physical exports, including those for the purpose of licensed production of military equipment in third countries;

—  applications for brokering licences;

—  applications for "transit" or "transhipment" licences;

—  applications for licences for any intangible transfers of software and technology by means such as electronic media, fax or telephone.

Member States' legislation shall also indicate in which case an export licence is required with respect to these applications.

20.5 Article 2 contains seven detailed criteria, relating to:

—  Member States' international obligations, in particular UN or EU sanctions and non-proliferation agreements;

—  respect for human rights and international humanitarian law in the country of final destination;

—  the internal situation in the country of final destination as a function of the existence of tensions or armed conflicts;

—  preservation of regional peace and security;

—  national security of Member States and of Member States' dependent territories, as well as that of friendly and allied countries;

—  behaviour of the buyer country with regard to the international community, and in particular its attitude towards terrorism, the nature of its alliances and respect for international law;

—  the risk of diversion within the buyer country or re-exportation under undesirable conditions; and

—  compatibility of the exports of the military technology or equipment with the technical and economic capacity of the recipient country, taking into account the desirability that states should meet their legitimate security and defence needs with the least diversion of human and economic resources for armaments.

20.6 In his 30 November 2006 Explanatory Memorandum, the Minister for Europe (Mr Geoffrey Hoon) says that the key changes introduced by the Common Position are:

—  updated references to internal agreements;

—  clear reference to International Humanitarian Law in Criterion Two (which is already included in UK legislation, but not covered in other EU Member States legislation) ;

—  language on respect for re-export provisions; and

—  explicit coverage of the risk of diversion to terrorists, and of reverse engineering or unintended technology transfer.

20.7 He explains that UK legislation (The Export Control Act (2002)) will not need updating as a result of the Common Position, but the Government will update the "EU and National Export Licensing Criteria" as set out in a statement by the then Minister of State for Foreign and Commonwealth Affairs on 26 October 2000, to take account of the adoption of the Common Position.

20.8 The Minister says that replacing the previous EU Code of Conduct on Arms Exports with the Common Position "represents a significant advance in the minimum standards and processes applied by all EU member States". Although the licensing of defence exports remains at the national discretion of each Member State, the new Common Position — unlike the EU Code of Conduct — is legally binding (under Article 15 TEU).

20.9 Moreover, while the previous EU Code of Conduct covered only the physical export of goods, the new Common Position extends this coverage to include licences for trafficking and brokering, and for the intangible transfer of technology: "The secondary legislation implemented under our Export Control Act means that UK practice is already in line with these and other changes".

20.10 He notes that the UK, and the European Union, is supporting efforts to work towards an international legally binding treaty on the trade in all conventional arms, or Arms Trade Treaty (ATT): "Adoption of a legally binding set of rules within the EU is in line with this longer-term aim".

20.11 Finally, he says that the General Affairs and External Relations Council will consider the Common Position on 12 December, and that the Government supports adoption and implementation of the Common Position at the earliest opportunity.

Conclusion

20.12 So do we. This Common Position has been agreed among Member States for some while. Given the EU's stated aspirations and settled policy, it is time to enact it, and not for continuing endeavours to link this with other considerations.

20.13 We now clear the document, with a report to the House.


41   OJ No. C 127, 25.5.05, p. 1. Back


 
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Prepared 19 December 2006