3EU rules on export of arms and military technology
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Committee’s assessment |
Politically important |
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Cleared from scrutiny; but further information requested; drawn to the attention of the Defence Committee, the Foreign Affairs Committee and the International Trade Committee |
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Document details |
Proposal for a Council Decision amending Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment |
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Legal base |
Article 29 TEU; unanimity |
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Department |
Foreign and Commonwealth Office |
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Document Number |
(40814), 11439/19,— |
Summary and Committee’s conclusions
3.1 Within the EU, defence equipment can be sold relatively easily from one Member State to another as part of the Single Market, under the 2009 Transfer Directive.7 For arms sales to non-EU countries, the legal situation is more complicated.
3.2 As part of the Common Foreign and Security Policy (CFSP), the EU Member States have jointly agreed to limit the sale of arms and other military equipment to non-EU countries in certain circumstances. Currently, the EU collectively operates arms embargoes against a handful of countries that prohibit the export of weapons under any circumstances (including Venezuela, Belarus, Libya and Syria).8 As with the vast majority of substantive EU foreign policy decisions, those measures required unanimity in the Council to take effect.
3.3 For countries not subject to specific restrictions on exports of military technology, general EU rules exist that set out how the competent authorities of EU Member States—the Export Control Joint Unit in the UK9—are expected to assess requests for export licences for defence equipment.10 The current iteration of those rules is set out in a “Common Position“ approved by EU Foreign Affairs Ministers in December 2008.11 In particular, these require Member States to reject requests for export licences if they do not meet one of eight criteria related to the (likely) use of the technology in question in the country of destination. Export must be refused, for example, if the equipment was likely to be used to “provoke or prolong” armed conflict; be deployed “aggressively against another country or to assert by force a territorial claim”; or if they would breach the EU’s international commitments, such as the Nuclear Non-Proliferation Treaty or the Chemical Weapons Convention.
3.4 Individual EU countries can impose stricter arms export policies than those required by EU law, for example by implementing unilateral arms embargoes. Indeed, several Member States, such as France, Germany and Italy, have recently done so in relation to Turkey following the latter’s military action in Syria. In addition, each Member State is required to circulate a confidential Annual Report to the others on its arms exports, as part of the monitoring process for the implementation of the EU’s Common Position. These 28 reports are then collated into a public version by the European Commission. The latest report, published in December 2018, covers the 2017 calendar year.
3.5 Overall, EU law still gives individual countries significant leeway in deciding whether or not to grant export licences for weapons. The rules state that Member States can “take into account the effect of proposed exports on their economic, social, commercial and industrial interests” (although these factors are not supposed to “affect the application of the […] criteria” for refusal). The case-by-case assessment of each potential sale of arms against the criteria for refusal remains a matter for national governments only, with no role for the EU institutions. Moreover, measures adopted under the EU’s Common Foreign and Security Policy (CFSP)—including the arms export decisions with a TEU legal base—are not subject to the jurisdiction of the European Court of Justice.12 That means the European Commission cannot bring infringement proceedings against Member States, even if it believes they are exporting arms in violation of European rules.13
3.6 Potential breaches of the EU’s arms export restrictions are not unheard of. Indeed, as recently as June 2019 the Court of Appeal ruled that the UK’s exports of military technology to Saudi Arabia—for use by its armed forces operating in Yemen—were not properly assessed in line with the criteria set out in the EU’s Common Position and the accompanying User Guide.14
2019 review of the EU’s arms export rules
3.7 On the basis of an 18-month review, the European External Action Service (EEAS) on 28 June 2019 submitted a formal proposal to Member States to make amendments to the Common Position in the form of a Council Decision.15 The Foreign and Commonwealth Office did not deposit this proposal for scrutiny by the House of Commons until 12 September. This was only four days before the Council formally approved the amendments at a meeting of the EU General Affairs Council on 16 September 2019. The responsible Government Minister (Rt Hon. Christopher Pincher MP) has not explained why this delay in communicating the proposed changes to Parliament occurred.16
3.8 In his Department’s substantive Explanatory Memorandum on the changes, which took effect on 17 September, the Minister described the amendments—which the UK Government endorsed—as a “technical update”, which “takes into account new international obligations, revised EU regulations that came into effect after 2008 and improved EU reporting and transparency procedures”. The review also “refreshed” the EU User’s Guide, which supports EU Member State export licensing officers in applying the Common Position.
3.9 More concretely, the Common Position has been updated in the following ways:
- the Council Decision adds references to the UN’s Sustainable Development Goals and the Arms Trade Treaty (ATT), both of which were established after the last review of the EU’s arms export rules. All EU Member States are party to the ATT;
- Member States would be required to assess government-to-government transfers against the Common Military List, and are encouraged to reassess a licence if new information comes to light;
- the new Decision includes a new emphasis on the importance of the information sharing system between EU Member States, particularly on “denial notifications and [national] arms export policies”;17 and
- the Common Position now contains references to the EU’s Strategy Against Illicit Firearms, Small Arms and Light Weapons (SALW) of November 2018;18 a 2009 EU Regulation on controls of exports for “dual-use” technology which has both civilian and military application;19 a 2012 Regulation on the implementation of the Protocol on firearms trafficking to the Palermo Convention;20 and a 2019 amendment to the EU “Torture Regulations”.21
3.10 In a set of Council Conclusions accompanying the revised Common Position, the Member States also stated that closer defence cooperation within the EU would need to be accompanied by further “convergence in the field of export control of military technology”. How, or indeed if, this will be translated into any new EU legal instruments under the Common Foreign and Security Policy in the future is not clear.
3.11 The Council Decision making the above amendments to the Common Position was formally adopted by the Council on 16 September 2019.22 The Government only deposited it for scrutiny by Parliament on 12 September, meaning this Committee did not have a chance to assess the proposed changes before their formal adoption. In normal circumstances, Ministers may not allow the adoption of new EU rules without the relevant proposal having been “cleared” from scrutiny by ourselves and our counterparts on the House of Lords EU Committee. In approving the amendments, the Foreign and Commonwealth Office therefore overrode scrutiny.
3.12 The next review of the EU’s arms export rules is due to take place after five years, in 2024.
Implications of the new EU arms export rules for the UK
3.13 The Minister’s Explanatory Memorandum on the updated EU arms export rules notes that, from a UK perspective, the amendments “brings [them] into line with the UK’s existing policy framework for assessing all strategic export licences”, which in turn reflects its obligations under the Arms Trade Treaty and other international commitments.23 These are implemented in the UK by means of the Consolidated EU and National Arms Export Licensing Criteria (the “Consolidated Criteria”), issued in 2014 by the Secretary of State for Business under section 9 of the Export Control Act of 2002. According to the Minister, the September 2019 changes to the EU’s Common Position “require no substantive changes” to domestic legislation even while EU law remains binding.
3.14 The UK is, of course, in the process of withdrawing from the European Union. While it remains a Member State, EU law—including decisions under the CFSP—remain binding on the UK. However, EU foreign policy measures are not directly applicable or directly effective in the UK under domestic law, because measures under the EU’s Common Foreign and Security Policy are not given effect domestically via the conduit of the European Communities Act 1972. Instead, they are treated as international obligations and, if necessary,implemented in domestic law using the relevant powers.24 CFSP decisions are not within the definition of retained EU law in the European Union (Withdrawal) Act 2018. Consequently, the amended Common Position itself would not be part of the law of the United Kingdom after Brexit under the terms of the European Union (Withdrawal) Act 2018.25 The Export Control Act of 2002 and the Consolidated Criteria under it would, however, remain in effect subject to any future amendments.
3.15 As the detailed implementation of the EU Common Position in the UK is set out in the Consolidated Criteria, which is statutory guidance issued by the Secretary of State, it could be amended in the future without parliamentary approval. It is unclear from the Minister’s Memorandum if the Government intends to make any changes to its guidance on arms export rules that would not currently be permitted by EU law, once the UK gains the legal flexibility to explicitly diverge from the Common Position.
3.16 In a more general sense, from the date of the UK’s exit from the European Union, it will become a “third country” for the purposes of EU law. With respect to the Common Position and related EU legislation on dual-use items, this means that any sale of military equipment from EU Member States to the UK will be subject to European rules on arms exports (after the end of any transition period). The 2009 Transfer Directive, as well as the broader intra-EU trade facilitation measures adopted as part of the Customs Union and the Single Market, would cease to apply to trade in defence equipment with the UK. While the remaining Member States are unlikely to consider that arms exports to the UK would fall foul of the criteria for refusal set out in the Common Position, there will be increased administrative hurdles following the UK’s exit from the Single Market and the Customs Union.
Our conclusions
3.17 We thank the Minister for his helpful Explanatory Memorandum on the amendments to the EU’s Common Position on arms export controls. Given the recent controversy surrounding the UK’s sale of weapons to Saudi Arabia, which the Court of Appeal ruled in June 2019 was not properly assessed in line with the EU’s existing arms export rules, we consider these changes politically important. We therefore draw these developments to the attention of the House, and that of the Defence, Foreign Affairs and International Trade Committees in particular.
3.18 However, we are disappointed that the proposed Council Decision amending the EU’s rules on export restrictions of military equipment was not communicated to Parliament until more than two months after it was received by the Government. We ask the Minister to clarify why this delay occurred by 31 October, given that no explanation was provided in his letter of 11 September. We also request him to confirm whether the substance of the Common Position, as amended, will remain UK Government policy post-Brexit, even though it will not form part of retained EU law under the European Union (Withdrawal) Act 2018.
Full details of the documents
Proposal for a Council Decision amending Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment: (40814), 11439/19,—.
Previous Committee Reports
(28092), 10569/05: Third Report HC 41–iii (2006–07), chapter 20 (6 December 2006).
8 Some of these EU-wide arms embargoes are in effect pursuant to UN Security Council Resolutions (for example against Libya). Others, such as those against Venezuela and Belarus, are taken at the EU’s own initiative (so-called “autonomous” sanctions).
9 This unit is part of the Department for International Trade.
10 The different types of military technology included in the rules are set out on the EU’s “Common Military List” (CML).
11 Common Position 2008/944/CFSP. This was itself an update of the earlier European Union Code of Conduct on Arms Exports, adopted by the Council on 8 June 1998. Common Positions of the Council in relation to the EU’s Common Foreign and Security Policy were replaced by Council Decisions under the 2009 Lisbon Treaty.
12 Article 24(1) TEU.
13 The exception is for the export of dual-use items, which have both civilian and military use. These are covered by a distinct set of EU rules under the Common Commercial Policy, rather than the Common Foreign and Security Policy, and are therefore fully subject to the powers of the Commission and the Court.
14 R(Campaign Against Arms Trade) v Secretary of State for International Trade,20 June 2019 ([2019] EWCA Civ 1020). In particular, the Court ruled that, under the EU User Guide for the Common Position, the Government should have considered past violations by Saudi Arabia of International Humanitarian Law “as a relevant consideration when assessing whether there is a real risk of future violation” in use of any military equipment exported to the country.
15 Council document 10706/19. This document is classified as ‘LIMITE’ and therefore not publicly accessible.
16 In a letter dated 11 September 2019, the Minister informed the Parliament simply that “the [Scrutiny] Committees will not have the opportunity to review the documents before the item is due to be adopted”.
17 One of the amendments also requires EU Member States to complete annual reporting on their arms exports—the number of licences issued and value by destination—by 30 June each year instead of 31 July.
18 The 2018 Strategy replaced an earlier EU Strategy from 2005 to “combat illicit accumulation and trafficking of small arms and light weapons and their ammunition”.
20 Regulation (EU) No 258/2012. The 2000 Palermo Convention is formally known as the “United Nations Convention against Transnational Organized Crime”. The Protocol related to firearms trafficking was signed by the EU, on behalf of its Member States in areas of its competence, on 16 October 2001. It entered into force in 2014.
21 Regulation (EC) No 125/2019, which amended Council Regulation (EC) No. 1236/2005 on “trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment”.
22 Outcome of the General Affairs Council of 16 September 2019, p. 8.
23 The Government’s position on arms export controls was set out in a Written Ministerial Statement on 25 March 2014.
24 CFSP obligations are in the main fulfilled through the exercise of the Royal Prerogative in the conduct of foreign affairs.
25 Schedule 6 of the European Union (Withdrawal) Act 2018 exempts EU Decisions from retention in domestic law if they are were made “under Title V or former Title V of the Treaty on European Union”. This is the section of the EU Treaty which governs the Common Foreign and Security Policy.
Published: 29 October 2019