Annex 4: EU Council Common Position (2008/944/CFSP)
COUNCIL COMMON
POSITION 2008/944/CFSP
of 8 December
2008
defining common
rules governing control of exports of military technology and
equipment
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty of the European Union,
and in particular Article 15 thereof,
Whereas:
(1) 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.
(2) Member States recognise the special responsibility
of military technology and equipment exporting States.
(3) Member 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.
(4) Member States 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.
(5) Member States 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).
(6) Complementary measures have been taken against
illicit transfers, in the form of the EU Programme for Preventing
and Combating Illicit Trafficking in Conventional Arms.
(7) The Council adopted on 12 July 2002 Joint Action
2002/589/CFSP on the European Union's contribution to combating
the destabilising accumulation and spread
of small arms and light weapons.
(8) The Council adopted on 23 June 2003 Common Position
2003/468/CFSP (2) on the control of arms brokering.
(9) The European Council adopted in December 2003
a strategy against the proliferation of weapons of mass destruction,
and in December 2005 a strategy to
combat illicit accumulation and trafficking of SALW
and their ammunition, which imply an increased common interest
of Member States of the European Union in a coordinated approach
to the control of exports of military technology and equipment.
(10) The UN Programme of Action to Prevent, Combat
and Eradicate the Illicit Trade in Small Arms and Light Weapons
in All Its Aspects was adopted in 2001.
(11) The United Nations Register of Conventional
Arms was established in 1992.
(12) States have a right to transfer the means of
self-defence, consistent with the right of self-defence recognised
by the UN Charter.
(13) The wish of Member States to maintain a defence
industry as part of their industrial base as well as their defence
effort is acknowledged.
(14) 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 cooperation and convergence in
the field of military technology and equipment.
(15) 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 adopted
by the Council on 8 June 1998.
(16) On 13 June 2000, the Council adopted the Common
Military List of the European Union, which is regularly reviewed,
taking into account, where appropriate, similar national and international
lists.
(17) The Union must ensure the consistency of its
external activities as a whole in the context of its external
relations, in accordance with Article 3, second paragraph of the
Treaty; in this respect the Council takes note of the Commission
proposal to amend Council Regulation (EC) No 1334/2000 of 22 June
2000 setting up a Community regime for the control of exports
of dual use items and technology, HAS ADOPTED THIS COMMON POSITION:
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.[354]
354 European Council, EU COUNCIL COMMON POSITION 2008/944/CFSP
of 8 December 2008 defining common rules governing control of
exports of military technology and equipment, December 2008 Back
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