Annex 2: EU Council Common Position
COUNCIL COMMON POSITION 2008/944/CFSP
of 8 December 2008
defining common rules governing control of
exports of military technology and equipment
[Extract]
Article 1
1. Each Member State shall assess the export licence
applications made to it for items on the EU Common Military List
mentioned in Article 12 on a case-by-case basis against the criteria
of Article 2.
2. The export licence applications as 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 indicate in which
case an export licence is required with respect to these applications.
Article 2
Criteria
1. Criterion One: Respect for the international obligations
and commitments of Member States, in particular the sanctions
adopted by the UN Security Council or the European Union, agreements
on non-proliferation and other subjects, as well as other international
obligations.
An export licence shall be denied if approval would
be inconsistent with, inter alia:
(a) the international obligations of Member States
and their commitments to enforce United Nations, European Union
and Organisation for Security and Cooperation in Europe
arms embargoes;
(b) the international obligations of Member States
under the Nuclear Non-Proliferation Treaty, the Biological and
Toxin Weapons Convention and the Chemical Weapons Convention;
(c) the commitment of Member States not to export
any form of anti-personnel landmine;
(d) the commitments of Member States in the framework
of the Australia Group, the Missile Technology Control Regime,
the Zangger Committee, the Nuclear Suppliers Group, the
Wassenaar Arrangement and The Hague Code of Conduct
against Ballistic Missile Proliferation.
2. Criterion Two: Respect for human rights in the
country of final destination as well as respect by that country
of international humanitarian law.
— Having assessed the recipient country's attitude
towards relevant principles established by international human
rights instruments, Member States shall:
(a) deny an export licence if there is a clear
risk that the military technology or equipment to be exported
might be used for internal repression;
(b) exercise special caution and vigilance in
issuing licences, on a case-by-case basis and taking account of
the nature of the military technology or equipment, to countries
where serious violations of human rights have been established
by the competent bodies of the United Nations, by the European
Union or by the Council of Europe;
For these purposes, technology or equipment which
might be used for internal repression will include, inter alia,
technology or equipment where there is evidence of the use of
this or similar technology or equipment for internal repression
by the proposed end-user, or where there is
reason to believe that the technology or equipment
will be diverted from its stated end-use or end-user and used
for internal repression. In line with Article 1 of this Common
Position, the nature of the technology or equipment will be considered
carefully, particularly if it is intended for internal security
purposes. Internal repression includes, inter alia, torture and
other cruel, inhuman and degrading treatment or punishment, summary
or arbitrary executions, disappearances, arbitrary detentions
and other major violations of human rights and fundamental freedoms
as set out in relevant international human rights instruments,
including the Universal Declaration on Human Rights and the International
Covenant on Civil and Political Rights.
— Having assessed the recipient country's attitude
towards relevant principles established by instruments of international
humanitarian law, Member States shall:
(c) deny an export licence if there is a clear risk
that the military technology or equipment to be exported might
be used in the commission of serious violations of international
humanitarian law.
3. Criterion Three: Internal situation in the country
of final destination, as a function of the existence of tensions
or armed conflicts.
Member States shall deny an export licence for military
technology or equipment which would provoke or prolong armed conflicts
or aggravate existing tensions or conflicts in the country of
final destination.
4. Criterion Four: Preservation of regional peace,
security and stability.
Member States shall deny an export licence if there
is a clear risk that the intended recipient would use the military
technology or equipment to be exported aggressively against another
country or to assert by force a territorial claim.
When considering these risks, Member States shall
take into account inter alia:
(a) the existence or likelihood of armed conflict
between the recipient and another country;
(b) a claim against the territory of a neighbouring
country which the recipient has in the past tried or threatened
to pursue by means of force;
(c) the likelihood of the military technology or
equipment being used other than for the legitimate national security
and defence of the recipient;
(d) the need not to affect adversely regional stability
in any significant way.
5. Criterion Five: National security of the Member
States and of territories whose external relations are the responsibility
of a Member State, as well as that of friendly and allied countries.
Member States shall take into account:
(a) the potential effect of the military technology
or equipment to be exported on their defence and security interests
as well as those of Member State and those of friendly and allied
countries, while recognising that this factor cannot affect consideration
of the criteria on respect for human rights and on regional peace,
security and stability;
(b) the risk of use of the military technology
or equipment concerned against their forces or those of Member
States and those of friendly and allied countries.
6. Criterion Six: Behaviour of the buyer country
with regard to the international community, as regards in particular
its attitude to terrorism, the nature of its alliances and respect
for international law.
Member States shall take into account, inter alia,
the record of the buyer country with regard to:
(a) its support for or encouragement of terrorism
and international organised crime;
(b) its compliance with its international commitments,
in particular on the non-use of force, and with international
humanitarian law;
(c) its commitment to non-proliferation and other
areas of arms control and disarmament, in particular the signature,
ratification and implementation of relevant arms control and disarmament
conventions referred to in point (b) of Criterion One.
7. Criterion Seven: Existence of a risk that the
military technology or equipment will be diverted within the buyer
country or re-exported under undesirable conditions.
In assessing the impact of the military technology
or equipment to be exported on the recipient country and the risk
that such technology or equipment might be diverted to an undesirable
end-user or for an undesirable end use, the following
shall be considered:
(a) the legitimate defence and domestic security
interests of the recipient country, including any participation
in United Nations or other peace-keeping activity;
(b) the technical capability of the recipient country
to use such technology or equipment;
(c) the capability of the recipient country to apply
effective export controls;
(d) the risk of such technology or equipment being
re-exported to undesirable destinations, and the record of the
recipient country in respecting any re-export provision or consent
prior to re-export which the exporting Member State considers
appropriate to impose;
(e) the risk of such technology or equipment being
diverted to terrorist organisations or to individual terrorists;
(f) the risk of reverse engineering or unintended
technology transfer.
8. Criterion Eight: 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.
Member States shall take into account, in the light
of information from relevant sources such as United Nations Development
Programme, World Bank, International Monetary Fund and Organisation
for Economic Cooperation and Development reports, whether the
proposed export would seriously hamper the sustainable development
of the recipient country. They shall
consider in this context the recipient country's
relative levels of military and social expenditure, taking into
account also any EU or bilateral aid.
Article 3
This Common Position shall not affect the right of
Member States to operate more restrictive national policies.
Article 4
1. Member States shall circulate details of applications
for export licences which have been denied in accordance with
the criteria of this Common Position together with an explanation
of why the licence has been denied. Before any Member State grants
a licence which has been denied by another Member State or States
for an essentially identical transaction within the last three
years, it shall first consult the Member State or States which
issued the denial(s). If following consultations, the Member State
nevertheless decides to grant a licence, it shall notify the Member
State or States issuing the denial(s), giving a detailed explanation
of its reasoning.
2. The decision to transfer or deny the transfer
of any military technology or equipment shall remain at the national
discretion of each Member State. A denial of a licence is understood
to take place when the Member State has refused to authorise the
actual sale or export of the military technology or equipment
concerned, where a sale would otherwise have come about, or the
conclusion of the relevant contract. For these purposes, a notifiable
denial may, in accordance with national procedures, include denial
of permission to start negotiations or a negative response to
a formal initial enquiry about a specific order.
3. Member States shall keep such denials and consultations
confidential and not use them for commercial advantage.
Article 5
Export licences shall be granted only on the basis
of reliable prior knowledge of end use in the country of final
destination.
This will generally require a thoroughly checked
end-user certificate or appropriate documentation and/or some
form of official authorisation issued by the country of final
destination.
When assessing applications for licences to export
military technology or equipment for the purposes of production
in third countries, Member States shall in particular take account
of the
potential use of the finished product in the country
of production and of the risk that the finished product might
be diverted or exported to an undesirable end user.
Article 6
Without prejudice to Regulation (EC) No 1334/2000,
the criteria in Article 2 of this Common Position and the consultation
procedure provided for in Article 4 are also to apply to
Member States in respect of dual-use goods and technology
as specified in Annex I to Regulation (EC) No 1334/2000 where
there are serious grounds for believing that the end-user of such
goods and technology will be the armed forces or internal security
forces or similar entities in the recipient country. References
in this Common Position to military technology or
equipment shall be understood to include such goods
and technology.
Article 7
In order to maximise the effectiveness of this Common
Position, Member States shall work within the framework of the
CFSP to reinforce their cooperation and to promote their convergence
in the field of exports of military technology and equipment.
Article 8
1. Each Member State shall circulate to other Member
States in confidence an annual report on its exports of military
technology and equipment and on its implementation of this Common
Position.
2. An EU Annual Report, based on contributions from
all Member States, shall be submitted to the Council and published
in the 'C' series of the Official Journal of the European Union.
3. In addition, each Member State which exports technology
or equipment on the EU Common Military List shall publish a national
report on its exports of military technology and equipment, the
contents of which will be in accordance with national legislation,
as applicable, and will provide information for the EU Annual
Report on the implementation of this Common Position as stipulated
in the User's Guide.
Article 9
Member States shall, as appropriate, assess jointly
through the CFSP framework the situation of potential or actual
recipients of exports of military technology and equipment from
Member
States, in the light of the principles and criteria
of this Common Position.
Article 10
While Member States, where appropriate, may also
take into account the effect of proposed exports on their economic,
social, commercial and industrial interests, these factors shall
not affect the application of the above criteria.
Article 11
Member States shall use their best endeavours to
encourage other States which export military technology or equipment
to apply the criteria of this Common Position. They shall
regularly exchange experiences with those third states
applying the criteria on their military technology and equipment
export control policies and on the application of
the criteria.
Article 12
Member States shall ensure that their national legislation
enables them to control the export of the technology and equipment
on the EU Common Military List. The EU Common Military List
shall act as a reference point for Member States'
national military technology and equipment lists, but shall not
directly replace them.
Article 13
The User's Guide to the European Code of Conduct
on Exports of Military Equipment, which is regularly reviewed,
shall serve as guidance for the implementation of this Common
Position.
Article 14
This Common Position shall take effect on the date
of its adoption.
Article 15
This Common Position shall be reviewed three years
after its adoption.
Article 16
This Common Position shall be published in the Official
Journal of the European Union.
Done at Brussels, 8 December 2008.
For the Council
The President
B. KOUCHNE
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