Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment
Date: 2008-12-08
Institutions: Council of the European Union
Subjects: defence policy, exchange of information, export, illicit trade, innovation, military equipment, technology

13.12.2008

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Official Journal of the European Union

L 335/99

III

(Acts adopted under the EU Treaty)

ACTS ADOPTED UNDER TITLE V OF THE EU TREATY

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,

Preventing and Combating Illicit Trafficking in Conven­
tional Arms.

Having regard to the Treaty of the European Union, and in
particular Article 15 thereof,

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

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
in
Conduct on Arms Exports adopted by the Council
1998.

Member States recognise the special responsibility of
military technology and equipment exporting States.

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.

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.

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).

Complementary measures have been taken against illicit
for
transfers,

the EU Programme

form of

in the

(7)

(8)

(9)

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 (1).

The Council adopted on 23 June 2003 Common
Position 2003/468/CFSP (2) on the control of arms
brokering.

The European Council adopted in December 2003 a
strategy against the proliferation of weapons of mass
destruction, and in December 2005 a strategy to
illicit accumulation and trafficking of SALW
combat
ammunition, which imply an increased
and their
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)

to maintain a defence
The wish of Member States
industry as part of their industrial base as well as their
defence effort is acknowledged.

(1) OJ L 191, 19.7.2002, p. 1.
(2) OJ L 156, 25.6.2003, p. 79.

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Official Journal of the European Union

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(14)

The strengthening of a European defence technological
and industrial base, which contributes to the implemen­
tation of the Common Foreign and Security Policy,
in
particular the Common European Security and Defence
should be accompanied by cooperation and
Policy,
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 (1).

(17)

accordance with Article 3,
the Treaty;

The Union must ensure the consistency of its external
its external
activities as a whole in the context of
relations,
second
in
the Council
paragraph of
to amend
takes note of
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 (2),

the Commission proposal

in this respect

HAS ADOPTED THIS COMMON POSITION:

Article 1

1.
Each Member State shall assess the export licence appli­
cations 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.

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,
the
the
sanctions
European Union, agreements on non-proliferation and other
subjects, as well as other international obligations.

in particular
adopted by the UN Security Council or

An export licence shall be denied if approval would be incon­
sistent 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
the Chemical Weapons
Weapons Convention
Convention;

and

(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.

The export licence applications as mentioned in paragraph

2.
1 shall include:

2.
Criterion Two: Respect for human rights in the country of
final destination as well as respect by that country of inter­
national humanitarian law.

— applications for licences for physical exports, including those
licensed production of military

for
the purpose of
equipment in third countries,

— Having assessed the recipient country’s attitude towards
established by international human

relevant principles
rights instruments, Member States shall:

— applications for brokering licences,

— applications for ‘transit’ or ‘transhipment’ licences,

— applications for

software and technology by means
media, fax or telephone.

licences for any intangible transfers of
such as electronic

(1) Last amended 10 March 2008, OJ C 98, 18.4.2008, p. 1.
(2) OJ L 159, 30.6.2000, p. 1.

(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;

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Official Journal of the European Union

L 335/101

for

similar

internal

repression.

technology or equipment

For these purposes, technology or equipment which might
be used for internal repression will include, inter alia, tech­
nology or equipment where there is evidence of the use of
this or
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
this
Common Position,
technology or
the nature of
equipment will be considered carefully, particularly if it is
intended for internal security purposes. Internal repression
includes,
inhuman and
degrading treatment or punishment, summary or arbitrary
executions, disappearances, arbitrary detentions and other
and fundamental
major
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.

In line with Article 1 of
the

inter alia, torture and other cruel,

violations of human rights

— Having assessed the recipient country’s attitude towards
inter­

relevant principles established by instruments of
national humanitarian law, Member States shall:

(c)

the military technology or equipment
the likelihood of
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;

(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 inter­
national humanitarian law.

(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.

3.
Criterion Three: Internal situation in the country of final
destination, as a function of the existence of tensions or armed
conflicts.

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 deny an export licence for military tech­
nology or equipment which would provoke or prolong armed
conflicts or aggravate existing tensions or conflicts in the
country of final destination.

Member States shall take into account, inter alia, the record of
the buyer country with regard to:

Criterion Four: Preservation of regional peace, security and

4.
stability.

(a)

its support for or encouragement of terrorism and inter­
national organised crime;

Member States shall deny an export licence if there is a clear
risk that the intended recipient would use the military tech­
to be exported aggressively against
nology or equipment
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) its compliance with its

in
particular on the non-use of force, and with international
humanitarian law;

international commitments,

(c)

to non-proliferation and other areas of
its commitment
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.

(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;

7.
Criterion Seven: Existence of a risk that the military tech­
nology or equipment will be diverted within the buyer country
or re-exported under undesirable conditions.

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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.

Criterion Eight: Compatibility of

8.
the
military technology or equipment with the technical and
economic
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.

the exports of

capacity of

recipient

country,

the

Member States shall take into account,
in the light of infor­
mation from relevant sources such as United Nations Develop­
International Monetary Fund
ment Programme, World Bank,
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.

nation 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 nego­
tiations 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 cer­
tificate 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 tech­
nology or equipment for the purposes of production in third
countries, Member States shall in particular take account of the
potential use of
in the country of
production and of the risk that the finished product might be
diverted or exported to an undesirable end user.

the finished product

Article 6

the
Without prejudice to Regulation (EC) No 1334/2000,
criteria in Article 2 of this Common Position and the consul­
tation 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 tech­
nology.

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 expla­

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 7

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Official Journal of the European Union

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Article 8

1.
Each Member State shall circulate to other Member States
in confidence an annual report on its exports of military tech­
nology 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
this
States,
Common Position.

the principles and criteria of

in the light of

Article 10

While Member States, where appropriate, may also take into
the effect of proposed exports on their economic,
account
social, commercial and industrial
interests, these factors shall
not affect the application of the above criteria.

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
for Member States’ national
shall act as a reference point
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
adoption.

take effect on the date of

its

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.

Article 11

Done at Brussels, 8 December 2008.

Member States shall use their best endeavours to encourage
other States which export military technology or equipment
this Common Position. They shall
to apply the criteria of
states
those
regularly
and
applying

criteria on their military

third
technology

exchange
the

experiences with

For the Council
The President

B. KOUCHNER