EN Official Journal of the European Union C 382/1

THIRTEENTH ANNUAL REPORT ACCORDING TO ARTICLE 8(2) OF COUNCIL COMMON POSITION 2008/944/CFSP DEFINING COMMON RULES GOVERNING CONTROL OF EXPORTS OF MILITARY TECHNOLOGY AND EQUIPMENT

(2011/C 382/01)

INTRODUCTION

The present report covers activities undertaken by the EU and its Member States in the framework of the implementation of Council Common Position 2008/944/CFSP (1) throughout 2010 and 2011. As far as conventional arms exports are concerned, the report covers the 2010 calendar year.

During 2010 and 2011 the EU and its Member States continued to implement Council Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment, which replaced the EU Code of Conduct on arms exports in force since June 1998.

The following third countries have officially aligned themselves with the criteria and principles of Common Position 2008/944/CFSP: Bosnia and Herzegovina, Canada, Croatia, the former Yugoslav Republic of Macedonia, Iceland, Montenegro and Norway. During 2011, the EU Council Working Party on Conventional Arms Exports (COARM) also started the development of a specific exchange information system between the EU and third countries aligning themselves with the Common Position.

The promotion of effective national arms export control regimes was carried out in 2010 and 2011 in the framework of Council Decision 2009/1012/CFSP of 22 December 2009 on support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third countries (2).

The EU and its Member States continued to play a leading role in the Arms Trade Treaty process, thoroughly preparing for, and actively participating in all the sessions of the Preparatory Committee that took place in 2010 and 2011. EU efforts also focused on outreach to third countries, both through bilateral consultations and the organisation of regional outreach events in the framework of relevant Council Decisions 2009/42/CFSP (3) and 2010/336/CFSP (4).

I. IMPLEMENTATION OF COUNCIL COMMON POSITION 2008/944/CFSP

1. Implementation of Common Position 2008/944/CFSP in national legislation or administrative rules

Member States shall apply the provisions of the Common Position, which is an updated and upgraded instrument compared to the EU Code of Conduct on arms exports, which it replaced in December 2008. The Common Position goes far beyond the Code of Conduct, including an extension of controls to brokering, transit transactions and intangible transfers of technologies, as well as strengthened procedures to harmonise Member States' export policies.

Member States are required to ensure full implementation of the Common Position in their national legislation or administrative rules. The situation regarding national transposition of the Common Position into Member States’ arms export control regimes is reported in the annexed Table C.

2. User's Guide

The User's Guide is an essential instrument summarising agreed guidance for the implementation of the operative provisions of the Common Position 2008/944/CFSP, and the interpretation of its criteria.

Referred to in Article 13 of the Common Position, it has been developed by the Council Working Party on Conventional Arms Exports (COARM) and is updated as appropriate. It is intended for use primarily by export licensing officials, thus substantially contributing, in a pragmatic way, to the convergence of Member States' arms export control policies and procedures. The Guide is a public document available on the website of the European External Action Service.

The User's Guide contains sections, inter alia, on the following issues:

(a) Denial notifications and consultations

Denial notifications and bilateral consultations continue to take place via the EU's electronic coreu system on a daily basis. Information is circulated in a timely manner, ensuring transparency on the arms export policies of Member States vis-à-vis specific countries of final destination and end-users.

The denials notified, as well as the results of bilateral consultations, are included in a central electronic EU database of denials. The database, which is managed by the European External Action Service, is a dynamic system reflecting Member States' arms export control policies. The number of denials notified in 2010 are indicated in row (d) of the tables in Table A.I (annexed to this report) per destination and per military list category; the number of consultations issued and received by each Member State, and the number of consultations per destination can be found in Tables B.I and B.II respectively.

(b) Best practice for interpretation of criteria

The best practices for interpretation of the criteria of Common Position 2008/944/CFSP have been developed by the COARM working party, building on national best practices and taking into account input from other relevant stakeholders.

Their purpose is to achieve greater consistency among Member States in the application of the criteria of the Common Position. This is achieved by identifying factors that need to be considered when assessing export licence applications. The best practices are for the use by export licensing officials and other officials in government departments and agencies whose expertise inter alia in regional, legal (e.g. human rights law, public international law), technical, development as well as security and military related issues should inform the decision-making process.

3. Outreach

Article 11 of the Common Position calls on Member States to ‘use their best endeavours to encourage other States, which export military technology or equipment to apply the criteria of the Common Position.’ Coordinated outreach activities by Member States and the EU continued throughout 2010 and 2011 to date (see Table D, annexed hereto).

Events in the context of Council Decision 2009/1012/CFSP of 22 December 2009 on support for EU activities in order to promote the control of arms exports and the principles and criteria of Common Position 2008/944/CFSP among third countries

Council Decision 2009/1012/CFSP allocated funds for five regional outreach seminars and four staff exchanges with third countries closely associated to the EU. Its technical implementation has been entrusted to the German Federal Office of Economics and Export Control (BAFA).

During 2010, three outreach seminars were organised in the context of Council Decision 2009/1012/CFSP. The first took place in Algiers in March 2010 for the North African countries (Algeria, Egypt, Libya, Morocco and Tunisia). The second seminar was held in Sarajevo, Bosnia and Herzegovina, in June 2010 for the Western Balkan countries (Albania, Bosnia and Herzegovina, Croatia, former Yugoslav Republic of Macedonia, Montenegro and Serbia). The third seminar was held in Kiev, Ukraine, in November 2010 for the Eastern European and Caucasian partners of the European Neighbourhood Policy (Armenia; Azerbaijan; Belarus; Georgia; Moldova and Ukraine).

In 2011, the fourth and fifth outreach seminars foreseen by Council Decision 2009/1012/CFSP took place respectively in Podgorica, Montenegro, in May 2011 for the Western Balkan countries (Albania; Bosnia and Herzegovina, Croatia; the former Yugoslav Republic of Macedonia; Montenegro, and Serbia), and in Kiev, Ukraine, in November 2011, for the Eastern European and Caucasian partners of the European Neighbourhood Policy (Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine).

As far as the staff exchanges foreseen by the Council Decision are concerned, Hungary hosted Croatian arms export control officers in June 2011, Portugal hosted relevant officers from the former Yugoslav Republic of Macedonia and from Montenegro in October 2011, and arms export control personnel from the three EU candidate countries (Croatia, the former Yugoslav Republic of Macedonia, and Montenegro) was hosted by Poland in November 2011. These staff exchanges enabled officials from EU candidate countries to benefit from Member States’ experience regarding the implementation in day-to-day practice of, inter alia, arms exports-related customs issues, brokering and transit controls, reporting and transparency, exporters' internal compliance programmes, and the national implementation of international and EU sanctions. An additional and final staff exchange under the Council Decision will take place in the first quarter of 2012.

4. Political dialogue meetings

Political dialogue meetings on arms export control issues were held in 2010 with Norway, Canada, Ukraine, the United States and the Russian Federation.

Generally held on a biannual basis with each of the abovementioned countries, those political dialogues enabled fruitful discussions on matters of mutual interest such as specific destinations of concern, compliance and control issues and the Arms Trade Treaty process. In the course of the meetings, the EU side, represented by the European External Action Service since the entry into force of the Lisbon Treaty, also informed interlocutors on COARM priorities and activities since the previous meeting.

During 2011, the EU has also initiated a process to develop an information exchange mechanism that would allow EU Member States, the EEAS, and third countries aligning with the Common Position, to exchange relevant information concerning national arms export controls policies.

5. Update of the Common Military List of the European Union

The Common Military List of the European Union has the status of a commitment in the framework of the Common Foreign and Security Policy. It is reproduced as the list of defence-related products annexed to Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community (5).

On 21 February 2011, the Council adopted an updated version of the list which takes into account changes in the Wassenaar Arrangement's Munitions List agreed at the 2010 Plenary meeting of the Wassenaar Arrangement. The updated version of the Common Military List of the European Union was published in the Official Journal of the European Union C 86 of 18 March 2011.

6. Arms brokering

COARM agreed that the information sharing commitments set out in Council Common Position 2003/468/CFSP of 23 June 2003 on the control of arms brokering (6) should be implemented via the mechanism laid down in Common Position 2008/944/CFSP. In accordance with Article 5 of Common Position 2003/468/CFSP, Member States have put in place separate arrangements for the exchange of information on brokering licences granted and denied. Furthermore, in accordance with Articles 4 and 5 of Common Position 2003/468/CFSP, those Member States who have required brokers to obtain a written authorisation to act as brokers and/or have established a register of arms brokers, have put in place separate arrangements for the exchange of relevant information on registered brokers. Information on brokering licences granted and denied by EU Member States can be found in the annexed Table A.III.

Detailed information on national implementation of the Common Position on brokering or, for those Member States which have not yet fully implemented the Common Position, information on the state of play of their implementation, is provided in the annexed Table C.

7. Intra-EU arms transfers

The European Parliament and the Council adopted on 6 May 2009 Directive 2009/43/EC simplifying terms and conditions of transfers of defence-related products within the Community.

The Directive provides that Member States shall adopt and publish, no later than 30 June 2011, the laws, regulations and administrative provisions necessary to comply with it. Member States are bound to apply the adopted measures as from 30 June 2012. Since the adoption of the directive, Member States have held discussions in the context of a Commission-chaired committee on how best to address issues raised by the transposition of the Directive into their national legislation. Based on the input of this committee, the Commission adopted on 11 January 2011 Recommendation 2011/24/EU (7) on the certification of defence undertakings under Article 9 of Directive 2009/43/EC.

8. Dialogue with the European Parliament and NGOs

COARM meetings with the Sub-Committee on Security and Defence have been suspended in 2010, pending the establishment of the European External Action Service. In the future, a new format may be decided for such meetings. It is expected that meetings will resume by the end of 2011.

As has been the practice for several years, COARM delegates from most EU Member States have attended informal meetings organised by non-governmental organisations (in particular Saferworld), at six-monthly intervals.

II. ARMS TRADE TREATY (ATT)

1. Engagement in the sessions of the Preparatory Committee

Achieving a legally binding and robust Arms Trade Treaty (ATT) is among the top foreign policy priorities for the EU and its Member States. An ATT can make a substantial contribution to the regulation of the international trade in arms at the international level, making it more transparent and more responsible, through the establishment of common, high international standards. The relevant UN General Assembly Resolutions since 2006 were supported by all EU Member States.

Throughout 2010 and 2011 to date, the European Union and its Member States continued to closely support and participate in the ongoing UN-led Arms Trade Treaty process. In preparation to the sessions of the ATT Preparatory Committee (PrepCom), which have taken place to date (July 2010, February and July 2011), a dedicated sub-group of the COARM working group has met regularly to share views and coordinate positions, thereby allowing the EU and its Member States to continue to be very active and visible players in the ATT process. On the basis of EU coordinated positions, the EU and its Member States also held extensive consultations with third countries, and in particular major arms-manufacturing countries, and with the Chairman of the Preparatory Committee, Ambassador Garcia Moritàn.

2. Outreach efforts in the context of Council Decision 2009/42/CFSP of 19 January 2009 and Council Decision 2010/336/CFSP of 14 June 2010 on EU activities in support of the Arms Trade Treaty

Since 2009, the EU has been particularly active in promoting the ATT process vis-à-vis third countries, and with the aim of increasing participation in the UN consultations and improving understanding by all UN Member States of the different elements of a future treaty. To this end, the EU adopted in 2009 and 2010 two Council Decisions that allowed for the organisation of several regional outreach events, in cooperation with the UN Institute for Disarmament Research (UNIDIR).

The implementation of Council Decision 2009/42/CFSP started in 2009 and was completed in February 2010 with the organisation of an outreach event for OSCE countries and of a final seminar for all UN Member States. Both events were held in Vienna and closed the series of six outreach seminars funded by Council Decision 2009/42/CFSP.

On the basis of the results achieved through the first series of outreach events, the EU decided to increase efforts to enhance participation in and better understanding of the ATT process. A new Council Decision was adopted to this end in June 2010, providing for the organisation of seven regional workshops focusing both on the political aspects of the Arms Trade Treaty and on the technical aspects of national arms export controls.

In 2010 and 2011, outreach seminars were held in Kathmandu, Nepal (December 2010) for South and Central Asia countries, in Casablanca, Morocco (February 2011) for Northern, Western and Central Africa countries, in Montevideo, Uruguay (April 2011) for American and Caribbean countries, in Bali, Indonesia (June 2011) for East Asia and Pacific countries. Side events were also organised in the margins of the ATT Preparatory Committee sessions, held in New York in July 2010 and in February and July 2011, and in the margins of the 66th session of the UN General Assembly First Committee in October 2011.

III. PRIORITY GUIDELINES FOR COARM FOR THE NEAR FUTURE

With the adoption of the legally-binding Common Position 2008/944/CFSP, the fundamental elements of a common approach to the control of conventional arms exports by Member States have been identified. In spite of the progress represented by the adoption of the Common Position, there is still work to be done, especially in the areas which have not been addressed in the past, or where further work is necessary to consolidate and build on the results achieved.

The following are priority guidelines for the near future:

1. to ensure that those Member States, which have not yet done so, adopt the appropriate national regulations or administrative rules to fully implement: — Common Position 2003/468/CFSP on the control of arms brokering, — Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment;

2. to continue coordination at EU level and input into the negotiating process on the Arms Trade Treaty, providing expert contribution for the preparation of the February 2012 session of the Preparatory Committee and the July 2012 diplomatic conference mandated to negotiate the treaty;

3. to continue to exchange among EU Member States relevant information on arms export policies towards particular destinations;

4. to complete the implementation of Council Decision 2009/1012/CFSP, through the organisation of a staff exchange in 2012, and to undertake an assessment of the results achieved;

5. to complete the implementation of Council Decision 2010/336/CFSP on EU activities in support of the Arms Trade Treaty, and to ensure the participation of COARM experts in outreach regional seminars;

6. to continue to develop information and best practices exchanges with third countries aligned with Common Position 2008/944/CFSP, in consultations with relevant stakeholders;

7. to renew the dialogue with the European Parliament and to further develop relations with civil society and industry;

8. to start the preparatory process towards to the review of Common Position 2008/944/CFSP, to be undertaken three years after its adoption, as foreseen in its Article 15;

9. to start preparation for further COARM outreach activities to promote the principles and criteria of the Common Position 2008/944/CFSP, taking account the results of the assessment of the implementation of Council Decision 2009/1012/CFSP;

10. to update as appropriate the User's Guide and EU Common Military List, including in the framework of the review process of the Common Position 2008/944/CFSP;

11. to ensure the early finalisation and publishing of the 14th EU annual report on arms exports.

(1) OJ L 335, 13.12.2008, p. 99.

(2) OJ L 348, 29.12.2009, p. 16.

(3) OJ L 17, 22.1.2009, p. 39.

(4) OJ L 152, 18.6.2010, p. 14.

(5) OJ L 146, 10.6.2009, p. 1.

(6) OJ L 156, 25.6.2003, p. 79.

(7) OJ L 11, 15.1.2011, p. 62.