EN Official Journal of the European Union C 265/1

ELEVENTH 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

(2009/C 265/01)

INTRODUCTION

On 8 December 2008 the Council adopted Common Position 2008/944/CFSP (1) defining common rules governing control of exports of military technology and equipment. The adoption of this legally binding instrument, which replaces the EU Code of Conduct on Arms Exports which had been in force since June 1998, marked the formal successful conclusion of a review of the Code and set another milestone in improving the EU’s export control standards.

Recognising the special responsibility of military technology and equipment exporting States, EU Member States have once again shown their determination to prevent the export of military technology and equipment which might be used for undesirable purposes such as internal repression or international aggression or contribute to regional instability.

A number of other States have officially aligned themselves with the criteria and principles of the Common Position 2008/944/CFSP. These are: Bosnia and Herzegovina, Canada, Croatia, Iceland, Montenegro and Norway.

I. IMPLEMENTATION OF COMMON POSITION 2008/944/CFSP

1. Code of Conduct on Arms Export and Common Position 2008/944/CFSP

Since its adoption in 1998, the Code of Conduct has contributed significantly to the harmonisation of national arms export control policies. The Common Position constitutes a significantly updated and upgraded instrument compared with the Code of Conduct. It includes several new elements, which deepen and widen the scope of application. These elements include the extension of controls to brokering, transit transactions and intangible transfers of technology, as well as the implementation of strengthened procedures in order to harmonise Member States’ export policies.

The status of transposition of the Common Position into the national legislation of Member States 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. Regularly updated by the Council Working Party on Conventional Arms Exports (COARM) (most recently on 19 April 2009), it is intended for use primarily by export licensing officials, thus substantially contributing to harmonisation efforts in a pragmatic way. It is available on the 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 2008 are indicated in row (d) of the tables in Table A.I (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 B.I and B.II 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

Coordinated outreach activities by Member States and the Presidency to promote the principles and criteria of the Common Position among third countries, (in accordance with the mechanism agreed in 2004) continued throughout 2008 and 2009 to date (see Table D, annexed hereto).

In 2008, Member States agreed to step up these activities through the adoption of an EU Joint Action on support for EU activities in order to promote the control of arms exports and the principles and criteria of the EU Code of Conduct on Arms Exports among third countries (Council Joint Action 2008/230/CFSP of 17 March 2008) (2) which tasked four successive presidencies with the implementation of a series of outreach projects in EU neighbouring countries.

Inter alia, the following events took place:

(a) Outreach seminars on the basis of Joint Action 2008/230/CFSP

The Slovenian presidency began implementing the Joint Action by holding a two-day outreach seminar for the countries of South East Europe (Albania, Bosnia and Herzegovina, Croatia, former Yugoslav Republic of Macedonia, Montenegro and Serbia) on 4 to 6 May 2008 in Jable Castle, Slovenia. The Czech presidency organised a two-day outreach seminar for those countries on 4 to 6 June 2009 in Tirana, Albania.

The French presidency organised a two-day outreach seminar for North African countries (Algeria, Egypt, Libya, Morocco and Tunisia) on 17 to 18 December 2008 in Rabat, Morocco.

The Czech presidency organised a two-day outreach seminar for Ukraine, on 22 to 24 April in Kiev, Ukraine.

The outreach events for the North African countries and for Ukraine were the first seminars on arms export control organised at EU level for those countries. Participants in the workshops appreciated the opportunity to meet at expert level and to discuss several aspects of export licensing, as well as other related topics.

(b) Troika meetings

The Slovenian, the French and the Czech presidencies each held COARM troika meetings with Canada, Norway, the Russian Federation, Ukraine and the United States in the framework of the political dialogue of the Common Foreign and Security Policy of the European Union. Fruitful discussions took place with these countries on arms export controls in general and the Code of Conduct/Common Position 2008/944/CFSP in particular. The Presidency informed interlocutors at these meetings about COARM activities since the last round of troika meetings and of priorities of the Slovenian, French and Czech COARM presidencies in the field of arms export control. Furthermore, matters of mutual interest were discussed such as arms exports, compliance and control issues as well as membership applications for the Wassenaar Arrangement.

During the troika 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 continued to hand over the aggregate list of Member States’ denials four times per year, as agreed in 2007. This regular exchange reduces the risk of Norway inadvertently undercutting EU denials.

4. 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 (3).

On 23 February 2009 the Council adopted an updated version of the list which takes into account changes in the Wassenaar Arrangement’s Munitions List agreed at the 2008 plenary meeting of the Wassenaar Arrangement. This most recent version of the Common Military List of the European Union was published in Official Journal C 65 of 19 March 2009 and is available at the following Internet address: http://www.consilium.europa.eu/export-controls.

5. Arms Trade Treaty (ATT)

Throughout 2008 and 2009 Member States continued to follow developments related to the Arms Trade Treaty closely, and to demonstrate their strong support for the process. 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.

Following UN General Assembly Resolution 61/89 and the positive trend revealed in replies by the UN Member States to the UN Secretary General, a Group of Governmental Experts (GGE) was established to examine the parameters, feasibility and scope of a possible Arms Trade Treaty. Seven EU Member States were invited to participate in GGE deliberations. The GGE met three times in 2008.

In August 2008, the GGE produced a report that was presented to the General Assembly, which decided by its Resolution 63/240 to create an Open Ended Working Group (OEWG) to continue to examine the scope and parameters of the future Arms Trade Treaty. The OEWG met for the first time in New York in March 2009. The Czech presidency pronounced statements on behalf of the EU at the start and at the close of the OEWG.

In order to maintain the current momentum of this initiative and to further strengthen the increasing international support for it, on 19 January 2009 EU Member States adopted Council Decision 2009/42/CFSP 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 (4). The EU, represented by the Czech presidency and the Council Secretariat, actively participated in an ATT meeting organised for Central, Northern and Western African countries on 27 to 29 April in Dakar, Senegal, and in another meeting on the ATT for American countries, organised on 17 to 19 June in Mexico City, Mexico. Furthermore, many EU Member States have actively promoted the idea of a legally binding Arms Trade Treaty bilaterally and in various multilateral forums.

6. 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 (5) should be implemented via the mechanism laid down in Common Position 2008/944/CFSP. In accordance with Article 5 Common Position 2003/468/CFSP, 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.

At the April 2008 meeting of COARM, 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 A.III.

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, providing information on the state of play, is provided in the annexed Table C.

7. Intra-Community 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. Member States arms export licensing authorities will need to ensure that procedures are in line with the directive.

II. STATE OF PLAY CONCERNING THE IMPLEMENTATION OF OTHER PRIORITY MEASURES IDENTIFIED IN THE TENTH 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

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 to brief the Sub-Committee on COARM activities, the COARM Chairperson met with the Security and Defence Sub-Committee in Brussels on 9 June 2008, 8 December 2008 and 16 March 2009 respectively. The open exchange of views and very practical, concrete queries in these meetings demonstrated the importance of and need for such transparent and confidence-building dialogue with the European Parliament on a biannual basis. The Members of European Parliament especially welcomed the adoption of Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment and the role that EU Members States play in preparation of the Arms Trade Treaty.

III. PRIORITY GUIDELINES FOR COARM FOR THE NEAR FUTURE

Ten years of application of the Code of Conduct and its ‘upgrade’ to the legally binding Council Common Position have 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.

Member States have identified the following priority guidelines for the near future:

1. continuation of the process of earlier adoption and harmonisation of national reports in order to promote more homogeneous statistical data for inclusion in the European Union annual reports, to produce clearer, transparent and complete summary tables;

2. continuation of activities for the promotion of an Arms Trade Treaty;

3. implementation of Common Position 2003/468/CFSP, taking into account different national legislation and expanding the appropriate information-sharing mechanism and transparency in reporting;

4. continuation of the policy of promoting the principles and criteria of Council Common Position 2008/944/CFSP among third countries, especially those countries that have aligned themselves with the Common Position, and assisting its practical implementation through, inter alia, the provision of practical and technical assistance to ensure the harmonisation of policies on arms export control;

5. expert contribution to discussions on the implementation of Directive 2009/43/EC;

6. further development of dialogue with the European Parliament;

7. continued close cooperation and consultation with the interested third parties, including international NGO’s and the defence industry.

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

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

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

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

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