REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on transposition of Directive 2009/43/EC simplifying terms and conditions for transfer of defence-related products within the EU
Date: 2012-06-29
Institutions: European Commission
Subjects: intra-EU trade, military equipment, national implementing measure, technology transfer

EUROPEAN COMMISSION 

Brussels, 29.6.2012  
COM(2012) 359 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

on transposition of Directive 2009/43/EC simplifying terms and conditions for transfer 
of defence-related products within the EU 

(Text with EEA relevance) 

EN 

   EN 

 
 
 
 
  
 
TABLE OF CONTENTS 

1. 

2. 

3. 

4. 

Introduction .................................................................................................................. 4 

Transposition by the Member States............................................................................ 5 

The scope of the Directive: defence-related products.................................................. 5 

The principle of prior authorisation ............................................................................. 6 

4.1. 

The transfers of defence-related products between Member States must be subject to 
prior authorisation… .................................................................................................... 6 

4.2.  …but exemptions are possible ..................................................................................... 6 

4.2.1.  Transfers to or from governmental bodies and armed forces, by international 

organisations or for cooperative armament programmes............................................. 6 

4.2.2.  Transfers linked to humanitarian aid and emergency situations.................................. 6 

4.2.3.  Transfers for repair, maintenance, exhibition or demonstration .................................. 6 

4.2.4.  Additional exemptions ................................................................................................. 7 

4.3. 

Passage and entrance licences for defence-related products entering or crossing the 
territory of a Member State .......................................................................................... 7 

4.4. 

Components.................................................................................................................. 7 

5. 

5.1. 

5.2. 

General, global and individual transfer licences .......................................................... 8 

Three types of transfer licences.................................................................................... 8 

General transfer licences .............................................................................................. 8 

5.2.1.  Suppliers that will benefit from general transfer licences............................................ 8 

5.2.2.  Categories of recipients receiving defence-related products under a general transfer 

licence .......................................................................................................................... 8 

5.2.3.  Types of defence-related products which may be transferred under a general transfer 
licence .......................................................................................................................... 9 

5.2.4.  Registration prior to first use of a general transfer licence .......................................... 9 

5.3. 

5.4. 

5.5. 

5.6. 

6. 

6.1. 

6.2. 

Global transfer licences................................................................................................ 9 

Individual transfer licences ........................................................................................ 10 

Information to be provided by suppliers .................................................................... 10 

Licensing authorities .................................................................................................. 10 

Certification of recipient undertakings....................................................................... 11 

Objective of certification............................................................................................ 11 

Certification criteria ................................................................................................... 11 

EN 

2 

   EN 

 
6.3. 

6.4. 

6.5. 

6.6. 

7. 

8. 

9. 

Transposition of key elements of certification........................................................... 11 

Publication of information on certified recipients ..................................................... 11 

Certification authorities.............................................................................................. 12 

Safeguard measures.................................................................................................... 12 

Exports after transfer.................................................................................................. 12 

penalties...................................................................................................................... 13 

Challenges of transposition ........................................................................................ 13 

10. 

Conclusion.................................................................................................................. 14 

Annex ....................................................................................................................................... 15 

EN 

3 

   EN 

 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND 
THE COUNCIL 

on transposition of Directive 2009/43/EC simplifying terms and conditions for transfer 
of defence-related products within the EU 

(Text with EEA relevance) 

1. 

INTRODUCTION 

The objective of the Directive is to simplify the rules and procedures applicable to the intra-
EU  transfer1  of  defence-related  products  in  order  to  ensure  the  proper  functioning  of  the 
internal market. 

So  far,  the  legislation  in  Member  States  concerning  the  transfer  of  defence  related  products 
within  the  Union  contained  disparities.  This  might  impede  the  movement  of  products  and 
distort  competition  within  the  internal  market,  thereby  hampering  innovation,  industrial 
cooperation and the competitiveness of the defence industry in the European Union.  

The  implementation  of  the  Directive  is  expected  to  break  down  trade  barriers  for  defence-
related  products,  stimulate  common  production projects,  make  EU  defence  companies  more 
competitive  and  contribute  to  the  consolidation  of  the  internal  market.  As  a  result,  defence 
system integrators would have the possibility to open their supply chains in more predictable 
conditions,  increase  economies  of  scale  and  optimise  the  defence  manufacturing  chain.  The 
new rules can also create opportunities for SMEs in the sector to enter into the supply chain in 
other  Member  States.  The  EU  defence  industrial  and  technological  basis  would  be 
strengthened. The Directive will also contribute to the reduction of the administrative burden 
for  economic  operators  and  for  Member  States'  administrations.  The  efficiency  of  export 
controls in the EU would increase as Member States' control authorities could focus resources 
on  the  most  sensitive  transfers  and  therefore  maintain  high  security  levels.  Finally,  the 
Directive will increase assurance against the risk of illicit transfers, allowing traceability and 
reporting on re-exports, as well as enhancing mutual trust with like minded third countries.  

The Directive had to be transposed by Member States by 30 June 2011 at the latest and should 
be applied from 30 June 2012 onwards. The Directive sets up in its Article 14, a Committee 
encompassing  representatives  of  Member  States  that  plays  a  role  in  amending  non-essential 
elements  of  the  Directive  (such  as  its  Annex).  The  Committee  also  assists  the  Commission 
when accompanying Member States in the process of transposition and implementation of the 
Directive.  

This  report  implements  Article  17(1)  of  the  Directive,  which  requests  the  Commission  to 
present a report on the transposition by Member States. This report was drafted on the basis of 

1 

The text of the Directive mentions "intra-Community transfer". After the adoption of the Treaty on the 
Functioning of the European Union the (term) Community is replaced by the Union.  

EN 

4 

   EN 

 
                                                 
national legal texts transposing the Directive communicated to the Commission, the full list of 
which can be found in the Annex, and gives also a first indication of the challenges ahead. 

2. 

TRANSPOSITION BY THE MEMBER STATES 

Although  the  Directive  contained  a  transposition  period  of  more  than  two  years  after  its 
publication  in  the  Official  Journal  of  the  EU,  a  timely  transposition  seemed  to  have  been 
difficult for several Member States. 

The  Commission  received  an  official  notification  of  the  national  legislation  transposing  the 
Directive  from  a  majority  of  Member  States  (20)  (details  in  Annex).  Other  Member  States 
have informed the Commission that they are in advanced stages of the procedure.  

The Commission launched infringement procedures for non-communication under article 258 
TFEU against the Member States which did not communicate the national rules transposing 
the  Directive.  At  the  moment  7  Member  States  have  not  yet  communicated  transposition.  1 
Member State has communicated partially. 

3. 

THE SCOPE OF THE DIRECTIVE: DEFENCE-RELATED PRODUCTS 

The Directive applies to defence-related products as set out in its Annex, which was already 
amended  twice,  namely  through  Commission  Directive  2010/80/EU  of  22  November  20102 
and Commission Directive 2012/10/EU of 22 March 2012.3 

These amendments are the consequence of Article 13(1) of the Directive, which foresees that 
the  Commission  will  update  the  list  of  defence-related  products  set  out  in  the  Annex  of  the 
Directive, so that it strictly corresponds to the Common Military List of the European Union. 

This  Common  Military  List  of  the  EU  is  adopted  in  the  context  of  the  Council  Common 
Position  2008/944/CFSP  of  8  December  2008  defining  common  rules  governing  control  of 
exports  of  military  technology  and  equipment4.  This  Common  Position  obliges  Member 
States  to  ensure  that  their  national  legislation  enables  them  to  control  the  export  of  the 
technology  and  equipment  listed  in  the  Common  Military  List  of  the  EU.  According  to  the 
Common Position, the Common Military List of the EU act as a reference point for Member 
States’ national military technology and equipment lists, but shall not directly replace them. 

It  is  updated  annually  by  the  Council,  usually  as  a  consequence  of  an  amendment  to  the 
‘Munitions  List’  adopted  in  the  framework  of  the  ‘Wassenaar  Arrangement  on  Export 
Controls for Conventional Arms and Dual-Use Goods and Technologies’5 which contains 22 
main entries on items designed for military use, including certain items within the categories 
such as (but not limited to) small arms and light weapons (and related ammunition), tanks and 

2 
3 
4 
5 

OJ L 308, 24.11.2010, p. 11. 
OJ L 85, 24.03.2012, p. 3. 
OJ L335, 13.12.2008, p. 99. 
The Wassenaar Arrangement is composed by 41 countries with a Secretariat in Vienne. Its objective is 
to contribute to regional and international security, by promoting transparency and greater responsibility 
in  transfers  of  conventional  arms  and  dual-use  goods  and  technologies,  preventing  destabilising 
accumulations. 

EN 

5 

   EN 

 
                                                 
other  military  armed  vehicles,  combat  vessels  (surface  or  underwater),  armoured/protective 
equipment, aircraft and unmanned airborne vehicles, etc.  

4. 

THE PRINCIPLE OF PRIOR AUTHORISATION 

4.1. 

The  transfers  of  defence-related  products  between  Member  States  must  be 
subject to prior authorisation… 

The Directive specifies that the transfer of defence related products between Member States 
must  be  subject  to  prior  authorisation  (licence)  (Article  4).  The  transfer  is  defined  as  ‘any 
transmission  or  movement  of  a  defence-related  product  from  a  supplier  to  a  recipient  in 
another  Member  State’.  A  licence  is  the  authorisation  by  a  national  authority  of  a  Member 
State for suppliers to transfer defence-related products to a recipient in another Member State. 

All Member States that have transposed the Directive, fully or partially, have the requirement 
of prior authorization incorporated in their national legislation. 

4.2.  …but exemptions are possible 

4.2.1.  Transfers  to  or  from  governmental  bodies  and  armed  forces,  by  international 

organisations or for cooperative armament programmes 

Member  States  are  allowed  to  exempt  transfers  of  defence-related  products  from  the 
obligation of prior authorisation where the supplier or the recipient is a governmental body or 
part of the armed forces, or for supplies made by the European Union, NATO, IAEA or other 
intergovernmental  organisations  for  the  performance  of  their  tasks.  Transfers  which  are 
necessary  for  the  implementation  of  a  cooperative  armament  programme  between  Member 
States may also be exempted (Article 4(2)). 

Bulgaria,  Czech  Republic  (only  in  the  case  of  armed  forces  or  cooperative  programmes), 
Germany  (only  in  the  case  of  governmental  bodies  and  armed  forces),  Estonia,  Greece, 
France,  Lithuania,  Hungary  (except  for  cooperative  programmes),  Malta,  the  Netherlands, 
Slovenia, Slovakia and Sweden have made use of these exceptions. 

4.2.2.  Transfers linked to humanitarian aid and emergency situations 

Moreover,  Member  States  can  exempt  transfers  of  defence-related  products  from  the 
obligation of prior authorisation for transfers linked to humanitarian aid in the case of disaster 
or as a donation in an emergency. 

Bulgaria,  Estonia,  Greece,  Spain,  France,  Lithuania,  Hungary,  Malta,  Austria,  Slovenia, 
Slovakia and Sweden have made use of this exception.  

4.2.3.  Transfers for repair, maintenance, exhibition or demonstration 

Since  the  Directive  aims  at  substantially  reducing  the  administrative  burden  for  licensing 
authorities and the defence industry within the EU, Member States can also exempt transfers 
of defence-related products which are necessary for or after repair, maintenance, exhibition or 
demonstration. 

EN 

6 

   EN 

 
Bulgaria, Estonia, Greece, France, Malta, Austria, Slovenia, Slovakia and Sweden have made 
use of this exception. 

4.2.4.  Additional exemptions 

The  Directive  authorizes  the  Commission,  at  the  request  of  a  Member  State  or  on  its  own 
initiative,  to  include  additional  exemptions  where  the  transfer  takes  place  under  conditions 
which  do  not  affect  public  policy  or  public  security,  where  the  obligation  of  prior 
authorisation has become incompatible with international commitments of the Member States 
subsequent  to  the  adoption  of  this  Directive,  or  if  it  is  necessary  for  intergovernmental 
cooperation. 

At the moment, the Commission neither received such a request, nor identified a specific need 
for additional exemptions. 

4.3. 

Passage and entrance licences for defence-related products entering or crossing 
the territory of a Member State 

One of the novelties of the Directive is the abolition of the licences for the ‘passage through’ 
and  ´entrance´,  i.e.  the  transport  of  defence-related  products  through  one  or  more  Member 
States  other  than  the  originating  and  receiving  Member  States,  without  prejudice  to  the 
application  of  provisions  necessary  on  grounds  of  public  security  or  public  policy  such  as, 
inter alia, the safety of transport. This means that a general, global or individual licence (see 
details in point 5 below).from the Member State of origin should suffice for intra-EU transfers 
of defence-related products  

In  all  Member  States  that  have  transposed  the  Directive,  passage  and  entrance  licences  will 
not be required for intra-EU transfers, apart from the exceptions envisaged in the Directive. 
For  example,  Germany  will  require  a  general  licence  for  entrance  and  passage  of  only  war 
weapons.  The  Netherlands  will  set  up  a  previous  notification  system.  Hungary  will  require 
passage licences only for certain categories of products and maintain entrance licences. 

This  reduction  in  licences  and  related  administrative  procedures  is  expected  to  simplify 
significantly  the  intra-EU  transfer  of  defence  related  products,  reduce  administrative 
requirements for companies and improve security of supply of Member States. 

4.4. 

Components 

Components  of  defence-related  products  occupy  a  particular  place  in  the  Directive.  Many 
transactions between defence-related undertakings in the EU relate to components transferred 
from a supplier (often an SME) to an integrator that incorporates the received component in a 
larger  sub-system  (e.g.  a  sonar)  or  in  a  larger  system  (e.g.  a  submarine).  Integrating 
companies usually produce large weapon systems incorporating components sourced from a 
supplier  possibly  located  in  another  Member  State  (e.g.  connectors  to  be  incorporated  in  an 
aircraft).  

Although  components  are  not  formally  defined  by  the  Directive,  Article  4(7)  requires  that 
Member States determine the terms and conditions of transfer licences for components on the 
basis of an assessment of the sensitivity of the transfer in the light of, inter alia, the nature of 
the components in relation to the products in which they are to be incorporated and any end-
use  of  the  finished  products  which  might  give  rise  to  concern,  and  the  significance  of  the 
components in relation to the products in which they are to be incorporated. 

EN 

7 

   EN 

 
Except where they consider that the transfer of components is sensitive, Member States must 
refrain, from imposing any export limitations for components where the recipient provides a 
declaration of use in which it declares that the components subject to that transfer licence are 
integrated  or  are  to  be  integrated  into  its  own  products  and  cannot  at  a  later  stage  be 
transferred  or  exported  as  such,  unless  for  the  purposes  of  maintenance  or  repair  (Article 
4(8)).  

Member  States  that  have  fully  transposed  the  Directive  have  taken  these  provisions  into 
consideration in the national measures adopted. 

5. 

GENERAL, GLOBAL AND INDIVIDUAL TRANSFER LICENCES 

5.1. 

Three types of transfer licences 

Before  the  adoption  of  the  Directive,  individual  licensing  was  the  most  common 
administrative  tool  in  the  majority  of  Member  States.  An  individual  authorisation  was 
required  prior  to  every  transfer  with  the  associated  procedures  and  costs.  This  is  why  the 
Directive introduces two new categories of licences, the general and global licences that will 
simplify the procedures associated to the transfers. Through these new types of licences, the 
European defence industry will benefit from an efficient, seamless and reliable supply chain 
whenever acquiring equipment in another Member State. 

All Member States that have transposed the Directive have incorporated into their legislation 
the 3 types of licences: general, global and individual, with the related conditions foreseen by 
the Directive. 

5.2. 

General transfer licences 

5.2.1. 

Suppliers that will benefit from general transfer licences 

General  transfer  licences  authorises  suppliers  established  in  a  Member  State  to  perform 
transfers  of  defence-related  products,  which  are  specified  in  the  licence,  to  categories  of 
recipients  located  in  another  Member  State  (Article  5).  The  suppliers  must  either  fulfil  the 
terms and conditions attached to the general licence, or request a global or individual licence. 

A  general  transfer  licence  is  published  and  does  not  require  an  individual  request  for  the 
transfer.  It  allows  suppliers  that  comply  with  these  conditions  to  transfer  products  without 
further formalities at that stage. Member States will control the transfers ex post.  

This type of licence will fundamentally simplify procedures for suppliers for the less sensitive 
transfers. It will allow Member States to focus the control efforts to more sensitive transfers, 
as a case by case analysis will not be required for all transactions. 

5.2.2.  Categories of recipients receiving defence-related products under a general transfer 

licence 

General  transfer  licences  should  determine  the  categories  of  recipients  located  in  another 
Member  State.  These  categories  of  recipients  include  ‘certified  undertakings’,  the  armed 
forces of a Member State or a contracting authority in the field of defence, purchasing for the 
exclusive use by the armed forces of a Member State. General transfer licences shall also be 
used where the transfer is made for the purposes of demonstration, evaluation or exhibition, or 

EN 

8 

   EN 

 
for the purposes of maintenance and repair, if the recipient is the originating supplier of the 
defence-related products (Article 5(2)).  

However, the Directive offers the Member States the flexibility to broaden these categories of 
recipients, or to add transfers made for other purposes. 

General  licences  will  be  available  in  all  Member  States  that  have  fully  transposed  the 
Directive for the categories mentioned above. Thus, Slovenia envisages general licences only 
for armed forces and certified recipients, while in other cases there will be an exception from 
licence; Spain also envisages general licences for transfers related to operations of NATO and 
NAMSA;  Bulgaria,  Greece,  Cyprus,  and  Malta  envisage  general  licences  for  cooperation 
programmes, provided for in Article 5(3).  

5.2.3.  Types of defence-related products which may be transferred under a general transfer 

licence 

Member  States  are  entitled  to  determine  the  type  of  transfer  licence  for  defence-related 
products or categories of defence-related products (Article 4(5). 

Several  Member  States  such  as  Estonia,  Spain,  France,  Cyprus,  Netherlands  and  Portugal 
have  already  communicated  their  general  licences  list  to  the  Commission.  Nevertheless, 
Member  States  are  expected  to  publish  the  lists  with  the  scope  of  products  and  other 
conditions  of  their  general  licence  by  the  latest  on  30  June  2012,  i.e.  the  deadline  for  the 
implementation of the Directive.  

5.2.4.  Registration prior to first use of a general transfer licence 

Member  States  may  lay  down  the  conditions  for  registration  prior  to  first  use  of  a  general 
transfer  licence  (Article  5(4)).  For  example,  Bulgaria,  Czech  Republic,  Spain,  France,  , 
Greece,  Austria,  Malta,  the  Netherlands,  Portugal  and  Slovenia  have  introduced  this 
requirement in the legislation.  

In addition, suppliers have to inform, within a reasonable time, the competent authorities of 
the Member State from whose territory they wish to transfer defence-related products of their 
intention  to  use  a  general  transfer  licence  for  the  first  time  (Article  8(2)).  Several  Member 
States, for example Greece, France, Cyprus, Latvia, Austria, Slovakia, Slovenia and Sweden 
will request such a registration. 

Member  States  may  determine  the  additional  information  that  may  be  required  regarding 
defence-related products transferred under a general transfer licence. This provision can help 
Member  States  to  identify  the  suppliers  that  are  actually  using  the  general  licences  so  that 
competent authorities can check the records of the supplier, if necessary. 

5.3. 

Global transfer licences 

A global transfer licence is a prior authorisation granted by a national authority of a Member 
State  to  an  individual  supplier,  at  its  request,  for  transferring  specified  products  without 
quantitative  limits  to  specified  recipients  for  a  renewable  period  of  3  years  (Article  6).  Its 
simplification potential resides in the fact that global transfer licences do not relate to a single 
shipment  but  they  can  be  used  to  cover  several  transfers  over  a  longer  period.  They  can  be 
particularly helpful in the case of routine shipments to habitual customers or for SMEs with a 
limited catalogue. 

EN 

9 

   EN 

 
Experience  in  certain  Member  States  has  shown  the  substantial  simplification  potential  of 
global  licences.  For  example  when  France  introduced  in  2002  the  option  of  global  licences 
based  on  the  catalogue  of  participating  companies  (targeting  more  specifically  SMEs),  the 
first 35 licences delivered replaced 1,250 individual licences, thus representing a significant 
cut in red-tape. 

Global transfer licences, as requested by the Directive, will be available in all Member States 
that have transposed the Directive. No information about which categories of products will be 
subject to global licences has been provided to the Commission.  

5.4. 

Individual transfer licences 

Individual transfer licences are an authorisation granted by a national authority of a Member 
State  to  an  individual  supplier  for  one  single  transfer  and  a  specified  quantity  of`  products. 
They should be used only in the cases set out in Article 7: when it is limited to one transfer, 
when it is necessary for the protection of essential security interest of the Member State or on 
grounds of public policy, or when it is necessary for compliance with international obligations 
and  commitments  of  Member  States.  Individual  transfer  licences  may  also  be  used  where  a 
Member State has serious reason to believe that a supplier will not be able to comply with the 
terms and conditions of global or general transfer licences.  

The criteria allowing individual transfer licensing are therefore restrictive. Individual transfer 
licences are meant to remain for a limited number of cases. In the future it is expected that a 
majority  of  intra-EU  transfers  can  take  place  under  general  and  global  licences,  while 
individual licensing will only remain for the most sensitive items. 

No information about which categories of products will be subject to individual licences has 
been provided to the Commission 

5.5. 

Information to be provided by suppliers 

Suppliers shall provide information to recipients and authorities and to keep relevant records 
about the transfers in order to facilitate adequate control. 

All  Member  States  that  have  fully  transposed  the  Directive  have  included  provisions  about 
information, reporting and record keeping in their national legislation. For example, suppliers 
in Spain and the Netherlands are required to provide information to the concerned authorities 
every  6  months  and  suppliers  in  Hungary  every  3  months.  As  regards  record  keeping,  the 
period  varies  from  3  years  in  Sweden,  to  7  years  in  Ireland  and  Cyprus,  up  to  10  years  in 
Bulgaria and France.  

5.6. 

Licensing authorities 

The  licensing  role  is  granted  to  different  institutions  in  different  Member  State,  not  only  to 
Ministries  of  Defence  such  as  in  Portugal  or  France,  but  also  other  institutions  such  as  the 
Trade Licensing Office in Hungary, the Ministry of Economic Affairs in the Netherlands, or 
the Agency for Non-Proliferation and Export Controls in Sweden. 

EN 

10 

   EN 

 
6. 

CERTIFICATION OF RECIPIENT UNDERTAKINGS 

6.1. 

Objective of certification 

Certification is one of the core elements of the Directive and introduces a new approach in the 
system  of  control  of  defence  transfers.  The  objective  of  the  certification  of  recipients  is  to 
establish  their  reliability  for  receiving  defence-related  products  under  a  general  transfer 
licence published in another Member State. It is a confidence-building measure and a tool to 
reinforce  the  ex-post  controls.  It  will  reduce  the  risk  of  illicit  transfers  and  enhance  the 
traceability of the defence-related products transferred under a general transfer licence. 

6.2. 

Certification criteria 

The  Directive  provides  for  common  certification  criteria  across  the  EU  (Article  9(2)).  The 
certification aims at providing Member States and suppliers with ‘guarantees’ concerning the 
recipient undertaking’s experience in defence activities, its record of compliance to relevant 
legal  requirements  (notably  in  the  field  of  re-exports),  and  the  reliability  and  quality  of  its 
internal  control  programmes  and  structure.  In  particular,  certification  acknowledges  that 
appropriate risk prevention measures are implemented to protect goods, including intangibles 
(technologies, know-how, software etc.). 

These  provisions  generate  the  need  for  a  new  legal  and  institutional  framework  in  Member 
States.  In  order  to  facilitate  the  transposition  of  the  Directive,  the  Commission  adopted 
Recommendation 2011/24/EU of 11 January 2011 on the certification of defence undertakings 
under  Article  9  of  Directive  2009/43/EC6  which  provides  for  guidelines  on  the  certification 
criteria.  Its  main  objective  is  to  ensure  a  convergent  interpretation  and  application  of  the 
certification  criteria  so  that,  for  example,  the  certificates  can  be  mutually  recognised  more 
swiftly. The Recommendation invites Member States to apply it by 30 June 2012 at the latest. 

6.3. 

Transposition of key elements of certification 

According  to  the  national  measures  of  transposition  communicated,  the  Member  States  that 
have fully transposed have put in place the necessary elements to certify defence recipients. 
Those  Member  States  have  appointed  competent  authorities  as  required  by  Article  9(1)  and 
established  the  reliability  criteria  foreseen  by  Article  9(2).  In  general,  national  legislations 
foresee  the  recognition  of  certificates  adopted  by  other  Member  States  (Article  9(6). 
Furthermore,  Member  States  that  have  fully  transposed  the  Directive  have  put  in  place  the 
necessary mechanisms to monitor the compliance with the certification criteria and to apply 
the necessary corrective measures, as required by Article 9(5) and 9 (7). 

6.4. 

Publication of information on certified recipients  

Member States must publish and regularly update the list of certified recipients and inform the 
Commission,  the  European  Parliament  and  the  other  Member  States.  It  also  provides  that  a 
central  register  of  recipients  certified  by  Member  States  should  be  made  available  by  the 
Commission on its web site (Article 9(8)).  

For  this  purpose,  the  Commission  created  the  database  CERTIDER.  This  system  was 
designed  in  cooperation  with  a  dedicated  working  group  composed  of  representatives  from 

6 

OJ L11 of 15.1.2011, p.62. 

EN 

11 

   EN 

 
                                                 
the  Member  States.  The  system  was  tested  and  validated  by  Member  State  representatives 
who  will  feed  the  register  with  information  about  the  certified  recipient  undertakings. 
CERTIDER 
address 
http://www.ec.europa.eu/enterprise/sectors/defence/certider/.  

following 

available 

the 

at 

is 

6.5. 

Certification authorities 

Member States shall designate competent authorities to carry out the certification of recipients 
established  on  their  territory  of  defence-related  products  under  general  transfer  licences 
published by other Member States. 

This  role  has  been  granted  to  different  institutions  in  different  Member  States,  not  only 
Ministries of Defence such as in Greece, France, Slovenia and Portugal, but also Ministries of 
Industry  in  the  Czech  Republic  and  Spain,  and  Ministries  of  Economy  in  Austria,  the 
Netherlands, Slovakia and Lithuania.  

6.6. 

Safeguard measures 

The Directive offers the possibility to provisionally suspend a general licence with regard to a 
certified  recipient  in  another  Member  States  in  certain  specific  cases  and  under  certain 
conditions (Article 15). It also provides for a mechanism to inform the other Member States 
and the Commission. 

Several  Member  States  such  as  Bulgaria,  Ireland,  Greece,  Spain,  Cyprus,  Malta,  Austria, 
Slovenia,  Slovakia  and  Sweden  have  decided  to  incorporate  these  provisions  into  their 
national legislation. 

7. 

EXPORTS AFTER TRANSFER  

Exports of defence-related products are governed by the provisions of the Council Common 
Position  2008/944/CFSP.  The  Directive  expressly  specifies  that  it  does  not  affect  the 
discretion  of  Member  States  as  regards  policy  on  the  export  of  defence-related  products 
(Article 1(2)). 

However, transfer licences may contain specific restrictions on exports to third countries. In 
this respect, Article 4(6) requires Member States to determine all the terms and conditions of 
transfer licences, including any limitations on the export of defence-related products to legal 
or natural persons in third countries, having regard, inter alia, to the risk for the preservation 
of human rights, peace, security and stability created by the transfer.  

Member States have to ensure that recipients of defence-related products, when applying for 
an  export  licence,  declare  to  their  competent  authorities,  in  case  where  such  products  have 
export limitations attached to them that they have complied with the terms of those limitations 
including,  as  the  case  may  be  having  obtained  the  required  consent  from  the  originating 
Member  States  (Article  10).  Member  States  that  have  fully  transposed  the  Directive  have 
incorporated these provisions into their national legislation. 

Member  States  must ensure that, when  completing the formalities for export at the customs 
office,  the  exporters  furnishes  proof  that  any  necessary  export  licence  has  been  obtained 
(Article 11(1)). The required customs procedures are in place in all Member States that have 
transposed the Directive. 

EN 

12 

   EN 

 
Several  Member  States  such  as  Bulgaria,  Ireland,  Greece,  Cyprus,  Hungary,  Portugal  or 
Slovenia have made use of the possibility of Article 11(2) to suspend the process of the export 
from its territory for a period of maximum 30 days. 

Member  States  which  provide  that  customs  formalities  for  the  export  of  defence-related 
products can be completed only at certain customs offices should inform the Commission of 
the relevant customs offices (Article 11(4)). The Commission must publish that information in 
the  C  series  of  the  Official  Journal  of  the  European  Union.  At  the  moment  only  Bulgaria, 
Greece, and Sweden have availed themselves of this option in their legislation. 

8. 

PENALTIES 

Finally, Member States shall have in place rules on penalties applicable to infringements of 
the  provisions  resulting  from  implementation  of  the  Directive  (Article  16).  Effective, 
proportionate  and  dissuasive  penalties  are  valuable  measures  that  are  necessary  for  the 
progressive building of mutual trust and confidence among Member States, but should also be 
sufficient  to  ensure  enforcement  of  the  provisions  of  the  Directive,  in  particular  as  regards 
compliance  with  common  criteria  for  certification  and  with  limitations  of  further  use  of 
defence-related products following a transfer.  

All  Member  States  that  have  transposed  the  Directive  have  encompassed  in  the  national 
legislation provisions on penalties. Penalties consist of either administrative fines (in Hungary 
and the Czech Republic) or a combination of administrative fines with imprisonment (Ireland, 
Malta and Sweden).  

9. 

CHALLENGES OF TRANSPOSITION 

As  previously  mentioned,  challenges  still  lie  ahead  in  finalising  the  transposition  in  all 
Member States and, most important, in ensuring proper implementation of the Directive. This 
will  result  in  the  simplification  of  rules  and  procedures  of  transfer  of  the  defence-related 
products within the EU and consequently ensure the proper functioning of the internal market 
in the sector of defence.  

As  regards  the  Annex  of  the  Directive,  although  it  should  be  identical  at  all  times  to  the 
Common  Military  List  of  the  EU,  practice  shows  that  the  procedure  for  amendment  of  the 
Annex takes at least seven months. Consequently, it differs from the Common Military List of 
the  EU  during  at  least  seven  months  of  the  year.  Moreover,  the  Commission  Directive 
amending the Annex must be transposed by Member States and requires a national legislative 
or administrative procedure. Therefore, one can assume that national legislations transposing 
the Annex will never be identical to the Common Military List of the EU that applies at that 
moment, unless the Member States transposes the Common Military List of the EU without 
awaiting the amendment of  the Annex. These discrepancies lead to legal and administrative 
divergences for national authorities and defence-related undertakings within the EU and goes 
against  the  intention  of  the  legislator  for  a  strict  correspondence  between  the  Annex  of  the 
Directive and the Common Military List of the EU.  

The Commission is of the opinion that it is necessary to simplify the procedure for aligning 
the Annex of the Directive and the Common Military List of the EU. This issue will be further 
analysed by the Commission, in cooperation with the Council and the European Parliament. 

EN 

13 

   EN 

 
10. 

CONCLUSION  

Directive 2009/43/EC applies to a field within the internal market, so far subject to frequent 
exceptions by Member States due to its security implications. The Directive will contribute to 
strengthening  the  internal  market,  reducing  administrative  burden,  strengthening  the  EU 
defence industrial base, and increasing integration and security of supply. It will also improve 
efficiency of export control, taking into account the Member States' security objectives.  

The transposition of the Directive in most Member States is a significant step forward in the 
integration  of  an  internal  market  for  defence.  Timely  transposition  proved  challenging  for 
Member  States.  Nevertheless,  the  level  of  transposition  indicates  a  good  integration  into 
national  law  of  the  key  features  of  the  Directive,  namely  a  simplified  licencing  system 
coherent across the EU, a Common Military List replacing previous different ammunition lists 
established  at  national  level,  and  certification  of  defence  companies  resulting  in  increased 
mutual trust and common recognition of defence companies’ reliability. 

The  Commission  will  closely  monitor  the  transposition  and  the  implementation  of  the 
Directive  with  the  support  of  the  Committee,  with  the  view  to  assisting  Member  States 
throughout  the  process  and  timely  identifying  their  needs.  The  Commission  will  review  the 
implementation  and  report  thereon  to  the  European  Parliament  and  the  Council  by  30  June 
20167.  

7 

As foreseen by Article. 17 (2) 

EN 

14 

   EN 

 
                                                 
Annex  

List of national transposition measures8  

Member State  

National  transposition  measure 
as 
the 
Commission  

communicated 

to 

Belgium 

- 

Latest  status  of  transposition  as 
communicated 
the 
Commission 

to 

In  the  Brussels  Capital  region  the 
legislation  was  expected  to  be  sent 
to Parliament in April 2012 

Bulgaria 

Czech Republic 

Denmark 

Germany 

the  Flemish 

In 
legislative 
procedure 
concluded on 6 June 2012 

region, 

the 
was 

the  Walloon 

the 
In 
legislation  was  expected  to  be  sent 
to Parliament in April 2012 

region 

Decree  no  56  on  Export  Controls 
on  defence  related  products  and 
dual-use  items  Act  of  25  March 
2011 

Complete 

Complete 

Act  amending  Act  No  38/1994  on 
foreign trade in military goods and 
amending  Act  No  455/1991,  on 
licenced 
Trade 
Licensing  Act),  as  amended,  and 
Act  No  140/1961,  the  Criminal 
Code, as amended of 20 July 2011  

trades 

(the 

amending 

Act  No  413 
the 
Weapons  and  explosives  Act  and 
the  Military  Equipment  Act  of  9 
May 2011  

Partial 

Complete 

transposing 

Directive 
Act 
2009/43/EC  of 
the  European 
Parliament  and  of  the  Council  of 
6 May  2009  simplifying  terms  and 
conditions  of  transfers  of  defence-
related 
the 
products  within 
Community of 27 July 2011 

8 

National  execution  measures  communicated  by  Member  States  can  be  found  at:  http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:72009L0043:EN:NOT 

EN 

15 

   EN 

 
 
 
 
 
 
 
                                                 
Estonia 

Ireland 

Greece 

Spain 

France 

Strategic  goods  Act  of  12  July 
2011 

Complete 

Complete 

Complete 

S.I. No. 346 of 2011 European 
Communities (Intra-Community 
Transfers of Defence Related 
Products) Regulation 2011 

Law  No  4028  of  11  Novembre 
2011  with  Amendments 
to 
provisions  of  Law  2168/1993 
regulating  matters  pertaining 
to 
weapons,  ammunition,  explosive 
substances  and  explosive  devices 
and other provisions  

Complete 

Complete 

Royal 

Royal Decree 844/2011, of 17 June 
Decree 
modifying 
2061/2008,  of  12  December, 
approving  the  control  Regulation 
on 
in  defence 
trade 
material,  other  material  and  dual-
use items and technologies.  

foreign 

Law  n°2011-702  of  22  June  2011 
related to import and export control 
of  defence  related  products,  to  the 
simplification  of  defence  related 
transfers  in  the  EU  and  to  the 
defence and security markets  

Decree  nº  2011-1467  of  9 
November 2011 concerning import 
and  exports  outside  the  EU  and 
transfers  of  defence-
intra  EU 
related products  

Secondary 
general licences 

legislation  publishing 

Italy 

- 

procedure 

Legislative 
was 
concluded  on  30  May  2012  but 
not 
national 
communicated  

measures 

Cyprus 

Latvia 

(transfers  of 
Controlled  Goods 
defence-related products within the 
Community) Regulations of 2011.  

Complete 

Complete 

to 

Cabinet 
Amendments 
Regulation No 657 of 20 July 2010 
on  the  procedures  for  issuing  or 
refusing  to  issue  strategic  goods 
licences  and  other  documents 
relating 
the  circulation  of 
strategic goods of 28 June 2011  

to 

EN 

16 

   EN 

 
 
 
Lithuania 

Complete 

Law  of  the  Republic  of  Lithuania 
amending  the  law  of  the  Republic 
of  Lithuania  on  the  Control  of 
Strategic  Goods,  No  XI-1616 
(Official  Gazette,  2011,  No  128-
6052) of 11 October 2011. 

Criminal  Code  of  the  Republic  of 
Lithuania  No  VIII-1968  (Official 
No 89-2741
Gazette, 2000, 

Law amending the criminal code of 
the  Republic  of  Lithuania  No  IX-
1495  (Official  Gazette  2003,  No 
38-1733)  

the  Code 

Law  No IX-2511  amending  and 
supplementing 
of 
Administrative  Offences  (Official 
Gazette,  2004,  No  166-6060) 
(hereinafter  –  the  Lithuanian  Code 
of Administrative Offences)  

Order  No V-766  of  the  Lithuanian 
Minister  of  National  Defence  of  7 
July  2011  amending  Order  No V-
1216 of  29 December 2009 on  the 
approval  of  the  Common  Military 
List  (Official  Gazette,  2011,  No 
92-4400) 

Order  No  1B-393  of  the  Director 
General of the Lithuanian Customs 
Department  of  11  June  2010 
amending  Order  No  1B-351  of  25 
June  2009  on  the  approval  of 
classificator  of  customs  authorities 
(Official  Gazette,  2010,  No  70-
3528) 

Luxemburg 

Hungary 

Adoption  of  national  measures  by 
the  Parliament  was  scheduled  for 
13 June 2012 

Government  Decree  No.  160/2011 
the 
of  18  August  2011  on 
authorisation of the export, import, 
transit  of  military 
transfer  and 

Complete 

EN 

17 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
Malta 

Netherlands 

Austria 

Poland 

Portugal 

Romania 

Slovenia 

Slovakia 

equipment  and  services  and  the 
certification of enterprises 

Supply  and  Services  act  of  8 
November 2011 

Complete 

Complete 

Decree amending the Strategic 
equipment decree of 30 September 
2011  

Strategic equipment implementing 
regulation of 8 November 2011 

Act  of  22  June  1950  prosecuting 
and trying economic offences 

Regulations  of  the  Secretary  of 
State 
for  Economic  Affairs, 
Agriculture  and  Innovation  of  28 
October  2011  publishing  general 
licences 

Foreign  Trade  Act  2011  of  28 
April 2011 

Complete 

- 

The  legislative  procedure  was  on-
going as of March 2012 

Law 37/2011 of 22 June 2011  

Complete 

- 

Not communicated 

Complete 

Regulation  on  production  consents 
and 
trade  permits  for  military 
weapons  and  equipment,  and  on 
import, 
preliminary  permits  for 
export, 
transfer  of 
defence products of 20 July 2011  

transit  and 

Act  on  trade  in  defence-related 
products  and  on  amendments  to 
certain acts of 19 October 2011 

Complete 

Finland 

- 

procedure 

Legislative 
was 
concluded  on  14  June  2012  but 
national 
not 
communicated  

measures 

Sweden 

amending 

the  Military 
Act 
Equipment  Act  (1992:1300)  of  9 
June 2011 

Complete 

Customs' 
guidelines 
munitions 

regulations 

and 
(TFS  1997:35)  of 

EN 

18 

   EN 

 
 
 
 
Ordinance 
2011:850 
SFS 
amending Ordinance 1992:1303 on 
military equipment 

United Kingdom 

Export Control Order 2008 

The  UK 
partially complies with Directive 

existing 

legislation 

EN 

19 

   EN