EN Official Journal of the European Union C 9/1

TWELFTH 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 9/01)

INTRODUCTION

Throughout 2009 and 2010 European Union Member States have continued to work on the introduction into their national legislation of Council Common Position 2008/944/CFSP (1) defining common rules governing control of exports of military technology and equipment, which replaces the Code of Conduct on arms exports in force since June 1998.

The following third States 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.

Several Decisions on funding outreach activities in the area of arms export controls were adopted by the Council in 2009 and 2010, i.e.:

— Council Decision 2009/42/CFSP of 19 January 2009 on support for EU activities in order to promote among third countries the process leading towards an Arms Trade Treaty, in the framework of the European Security Strategy (2),

— 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 (3),

— Council Decision 2010/336/CFSP of 14 June 2010 on EU activities in support of the Arms Trade Treaty, in the framework of the European Security Strategy (4).

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

1. Introduction of Common Position 2008/944/CFSP into national legislations

Member States shall apply the provisions of the Common Position, which is an updated and upgraded instrument with respect 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, transits and intangible transfers of technologies, as well as strengthened procedures to harmonise Member States’ export policies.

For some Member States there is a need to adjust national legislation or administrative rules in order to ensure that the provisions of the Common Position are clearly and fully encompassed in national law. Such transposition into national legislation or administrative rules has been completed or is underway. The state of play regarding transposition of the Common Position into Member States’ national legislations can be seen in the annexed Table C.

2. User's Guide

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

Referred to in Article 13 of the Common Position, it is updated by the Council Working Party on Conventional Arms Exports (COARM) 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. This is a public document available on the European Union Council website (http://www.consilium.europa.eu/export-controls).

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 clear and timely manner, ensuring transparency on the arms export policies of Member States vis-à-vis specific countries of final destination and specific 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 EU Council Secretariat, is a dynamic system reflecting Member States’ arms exports control policies. The number of denials per destination and per military list category notified in 2009 are indicated in row (d) of the tables in Table AI (annexed hereto); the number of consultations issued and received by each Member State, and the number of consultations per destination can be found in Tables BI and BII respectively.

(b) Best practices for interpretation of criteria

The purpose of best practices for interpretation of the criteria of Common Position 2008/944/CFSP is to achieve greater consistency among Member States in the application of the criteria of the Common Position. This is done by identifying factors that need to be considered when assessing export licence applications. The best practices are for the use of 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 questions 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 2009 and 2010 to date (see Table D, annexed hereto).

(a) Events in the context of Council Joint Action 2008/230/CFSP (5) to promote the principles and criteria of the EU Code of Conduct among third countries

The last three outreach events in the context of Council Joint Action 2008/230/CFSP of 17 March 2008 were organised under the responsibility of the rotating Presidency. These events were held in April 2009 in Kiev for the representatives of governmental institutions as well as industry of Ukraine; in May 2009 in Tirana, Albania, for national experts of Western Balkan countries under the Czech Presidency, and in Tbilisi, Georgia, in October 2009 for Eastern European and Caucasian countries (Armenia, Azerbaijan, Georgia, and Moldova) under the Swedish Presidency. Belarus was invited to this last seminar but did not attend. However a bilateral meeting was held in Minsk in November 2009 to share the workshop’s experiences with Belarus.

The final report on all five events held in the context of Joint Action 2008/230/CFSP is set out in doc. 17645/09.

(b) Events in the context of Council Decision 2009/1012/CFSP 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

An extended mechanism for five new outreach seminars and four one month staff exchanges in 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 was agreed on 22 December 2009 in Council Decision 2009/1012/CFSP.

Council Decision 2009/1012/CFSP was the first decision on arms export control outreach activities to be adopted after the entry into force of the Lisbon Treaty. It designates the German Federal Office of Economics and Export Control (BAFA) as the technical implementing agency.

During the first semester of 2010, Spain, acting under the authority of the High Representative of the Union for Foreign Affairs and Security Policy, chaired the COARM Working Party. During Spain's chairmanship, two 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) (6). The second seminar under the chairmanship of Spain 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) (7). The third seminar took place 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).

Two other seminars will be organised under Council Decision 2009/1012/CFSP in 2011.

(c) Events in the context of Council Decision 2009/42/CFSP of 19 January 2009 on support for EU activities in order to promote among third countries the process leading towards an Arms Trade Treaty, in the framework of the European Security Strategy

The EU actively participated in all seven outreach seminars to promote the ATT process among third countries, organised in the context of Council Decision 2009/42/CFSP, with the assistance of UNIDIR as the implementing agency. The seminars, covering all regions of the world, took place as follows: in April 2009 for Central, Northern and Western African countries in Dakar, Senegal; in June 2009 for countries of the Americas and the Caribbean in Mexico City, Mexico; in July 2009 for Middle East countries in Amman, Jordan; in October 2009 for countries of Asia and the Pacific in Kuala Lumpur, Malaysia; in December 2009 for Eastern and Southern African countries in Addis Ababa, Ethiopia and finally, in February 2010, for OSCE countries and the closing seminar in Vienna, Austria.

In autumn 2009, the EU commenced preparations for the adoption of a new Council Decision in support of the Arms Trade Treaty, in order to continue its outreach activities accompanying the formal negotiating process set out by the UN General Assembly Resolution on the Arms Trade Treaty adopted in December 2009. The new Council Decision 2010/336/CFSP was adopted on 14 June 2010 and foresees the organisation of seven regional workshop focusing on the political aspects of the Arms Trade Treaty and on the technical aspects of national export control systems for conventional arms.

4. Political dialogue meetings

Upon entry into force of the Lisbon Treaty on 1 December 2009, the ‘troika’ format for meetings with third countries became obsolete and meetings between the EU and third countries at various levels are now referred to as political dialogue meetings.

Under the Czech and Swedish Presidencies during the first and second semesters of 2009 respectively, in the framework of the Common Foreign and Security Policy of the European Union, COARM troika meetings were held with Canada, Norway, the Russian Federation, Ukraine and the United States.

Under Spain's chairmanship of COARM, political dialogue meetings were held with the same countries. Fruitful discussions took place with these countries on arms export controls in general and Common Position 2008/944/CFSP in particular. During the course of the meetings, the EU side informed interlocutors on COARM priorities and activities since the previous meeting. Matters of mutual interest were also discussed, such as arms exports, compliance and control issues and the Arms Trade Treaty project.

During the troikas and political dialogue meetings with Norway, information on each side's denials was shared in accordance with an agreement reached with Norway in November 2004. The EU side continues to hand over the aggregate list of Member States’ denials four times per year, as agreed in 2007. Regular exchanges of denials reduce the risk of Norway inadvertently undercutting EU denials.

5. Updating 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 reflected in 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 (8).

On 15 February 2010, the Council adopted an updated version of the list which takes into account changes in the Wassenaar Arrangement’s Munitions List agreed at the 2009 Plenary meeting of the Wassenaar Arrangement. The updated version of the Common Military List of the European Union was published in Official Journal of the European Union C 69 of 18 March 2010 and is available on the Council website: http://www.consilium.europa.eu/export-controls

6. Arms Trade Treaty (ATT)

Throughout 2009 and 2010 to date Member States continued to support and follow developments related to the Arms Trade Treaty closely. They have continued to share views and information on efforts to encourage all United Nations member states to support the concept of an Arms Trade Treaty.

At the 64th session of the UN General Assembly First Committee and during the March and July 2009 sessions of the Open-ended Working Group established by Resolution 63/240, Member States actively participated in the debate, substantially contributing to the thematic expert discussions on the content of a future ATT. All EU Member States voted in favour of UN General Assembly Resolution on the Arms Trade Treaty 64/48 that foresees the convening of an International Conference to adopt an Arms Trade Treaty in 2012. The International Conference will be preceded by a Preparatory Committee to meet five times between 2010 and 2012. The Resolution 64/48 was supported by 153 UN Member States, while 19 abstained and one voting against.

With a view to the first session of the Preparatory Committee on the ATT (from 12 to 23 July 2010 in New York), the EU focused its work in the first half of 2010 on internal coordination and extensive consultations with third countries, as well as with the Chairman of the Preparatory Committee, Ambassador Garcia Moritàn.

7. Arms brokering

COARM has agreed that the information sharing commitments set out in Common Position 2003/468/CFSP of 23 June 2003 on the control of arms brokering should be implemented via the mechanism laid down in Common Position 2008/944/CFSP. In accordance with Article 5 of Council Common Position 2003/468/CFSP (9), Member States have put in place separate arrangements for the exchange of information regarding registered brokers and denials of applications to register, which operates on a mandatory basis only for those Member States whose legislation requires brokers to obtain written authorisation to act as brokers. Member States further agreed to exchange among themselves information on brokering licences granted. Information on brokering licences granted and denied by the EU Member States can be found in the annexed table AIII.

Detailed information on national legislation implementing 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.

8. Intra-EU transfers

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

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 this Directive. 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.

II. STATE OF PLAY CONCERNING THE IMPLEMENTATION OF OTHER PRIORITY MEASURES IDENTIFIED IN THE ELEVENTH ANNUAL REPORT

1. Harmonisation of national reports

Although differences in national reporting still remain, further steps have been taken to enhance the harmonisation of reporting procedures and to achieve fully comparable statistical data, in particular regarding the value of actual arms exports.

2. Dialogue with the European Parliament and NGOs

Pursuant to the agreement reached at the December 2005 COARM meeting that each Presidency should endeavour to meet the Security and Defence Sub-Committee of the European Parliament Foreign Affairs Committee to brief the Sub-Committee on COARM activities, the COARM Chair met with the Security and Defence Sub-Committee in Brussels on 16 March 2009. The open exchange of views and very practical, concrete questions raised at the meeting demonstrated the importance of and need for such transparent and confidence-building dialogue with the European Parliament on a biannual basis. Members of the European Parliament especially welcomed the adoption of Council Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment and the active role that EU Member States play in preparation of the Arms Trade Treaty.

In view of the entry into force of the Lisbon Treaty in December 2009, COARM meetings with the Sub-Committee on Security and Defence have been suspended, pending the setting up of the European External Action Service, further to which a new format may be decided for such meetings.

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.

III. PRIORITY GUIDELINES FOR COARM FOR THE NEAR FUTURE

The approval of the legally-binding Common Position has shown that the fundamental elements of a common approach to the control of conventional arms exports by Member States are well and truly in place. In spite of the progress, 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 that for the near future:

1. ensuring EU coordination and input in the negotiating process on the Arms Trade Treaty, providing expert contribution for the preparation of the spring 2011 session of the Preparatory Committee;

2. ensuring the implementation of Council Decision 2010/336/CFSP on EU activities in support of the Arms Trade Treaty including through the participation of COARM experts in outreach regional seminars;

3. ensuring that all Member States have adopted the appropriate national laws 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;

4. ensuring efficient, effective and worthwhile outreach events as provided for in Council Decision 2009/1012/CFSP;

5. continued exchanges of information on arms export policies towards particular destinations;

6. updates of/additions to the User's Guide and EU Common Military List;

7. continued dialogue with the European Parliament and NGOs;

8. early finalisation and publishing of the 13th EU annual report on arms exports;

9. contribution to discussions on the transposition into national legislation of Directive 2009/43/EC on intra-Community transfers of defence-related products, in order to ensure that security concerns are not jeopardised, and that implementation is as harmonised as possible throughout the EU.

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

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

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

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

(5) OJ L 75, 18.3.2008, p. 81.

(6) See report in doc. 8693/10.

(7) See report in doc. 12160/10.

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

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