08 April 2021
In 2019, the military expenditure of the European Union had increased for the fifth year in a row. The EU’s total military expenditure of €186 billion corresponds to 1.4% of the EU’s Gross Domestic Product (Schoeffmann, EDA, 2021, 4; SIPRI). In the same year, the European Union arms export represented a value of over €5 billion (SIPRI). This makes the EU the third biggest military spender and the second biggest arms exporter in the world (SIPRI). Between EU MS however, there are significant differences in military spending and the size of the domestic defence industry as these aspects remain strongly nationally governed (Cops et al., 2017, 11-12). In response, the EU has started several initiatives since the 1990’s to strengthen its collective security while simultaneously developing a coherent framework for the European defence industry (Cops et al., 2017, 12). Among other initiatives, the EU strives towards a harmonised framework on military equipment and arms export trade. Lately, the development of Europeanised arms export controls has seen some progress. With the EU as the second biggest arms exporter globally, this framework and the recent developments warrant further elaboration.
In the quest of converging and harmonising EU arms export, the Council of the EU has adopted the Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment. This Common Position sets forth the criteria all EU MS have to adhere to in their policy on the export of military equipment (Cops et al., 2017, 40). To determine which goods and products are military equipment, the Common Position refers to the Common Military List. EU MS are obliged to use this Common Military List to determine which goods fall under their national military export regulations (Cops et al., 2017, 83). This way the Common Position seeks to ensure that all EU MS adhere to the same high standards regarding human rights, conflict prevention, international crimes, peace, and stability in their export policy (Cops et al., 2017, 40 and 83). To help MS in applying for the Common Position, Article 13 of the Common Position provides for the adoption of a User’s Guide. This annually revised Users Guide summarises guidance for the interpretation of the criteria and implementation of the Common Position (Michel et al., 2010, 162)
While the Common Position is a binding document, its enforceability is rather limited because it belongs to the domain of the Common Foreign and Security Policy framework (CFSP) (Cops et al., 2017, 40-41). Under Article 29 of the Treaty of the EU, EU MS are obliged to align their national policies with the Common Position (Cops et al., 2017, 40-41). Therefore, EU MS must devise their military export policy in conformity with the Common Position criteria. However, EU MS assess export licence applications and decide autonomously to what extent the Common Position will be integrated into domestic legislation and how this legislation will be interpreted (Cops et al., 2017, 40-41). EU MS are also allowed to adopt more restrictive policies under Article 3 of the Common Position (Lustgarten, 2020, 54). Additionally, in the domain of CFSP, the European Court of Justice has no formal authority, and the European Commission cannot institute enforcement actions for non-compliance (Cops et al., 2017, 40-41; Lustgarten, 2020, 48). In sum, the Common Position still gives a lot of leeway to EU MS, and consequently, harmonisation of EU arms export to non-EU countries remains limited.
Studies have shown that as a result of this weak enforceability and broad discretion of EU MS, the European military export control is not without deficiencies (Bromley et al., 2008; O’Huiginn, The Guardian, 2011). On the one hand, the lack of enforceability has led to widespread non-application of the criteria (Lustgarten, 2020, 50). The discretion of MS, on the other hand, allows for varied interpretation of the criteria resulting in inconsistent export policies throughout the EU (Lustgarten, 2020, 54). This inconsistency leads to unethical competitive advantages and forum shopping in MS with lenient interpretations of the criteria. While the Common Position seeks to ensure that all EU MS uphold the same high standards in their arms export policy, it still allows for significant and unwanted variation.
In recent years, the EU actively attempted to address these deficiencies and developed the European framework on the export of military equipment further. In response to the entry into force of the Arms Trade Treaty (ATT) in 2014, the Council adopted conclusions regarding the review of Common Position 2008/944 on arms exports and the implementation of the ATT in 2015. Subsequently, in 2019, the Council adopted Council Decision 2019/1560 amending Common Position 2008/944 accompanied with new Council conclusions. This decision and the accompanying conclusion sought to update the Common Position 2008/944 in light of the ATT and the Council’s new strategy against illicit firearms, small arms, light weapons, and their ammunition of 2018. Finally, in 2021, the Council adopted a decision establishing a common approach on the elements of end-user certificates in the context of the export of small arms, light weapons, and ammunition. This last Council decision constitutes a follow-up to the Council decision and conclusions of 2019 and is another step towards Europeanised arms control.
Over the past decades, the EU has sought to converge and harmonise the arms export policies of its MS. While significant legislative developments have taken place, the EU framework is still faced with inconsistent implementation, or non-implementation, by its MS. With a new common approach to end-user certificates in the context of arms export, steps are being taken to remedy these deficiencies and evolve towards a true Europeanised control of arms export. However, it remains to be seen to what extent these new developments are converted into consistent domestic policies.
Written by Wout DECLERCQ, Legal Researcher at Finabel – European Army Interoperability Centre
Sources
Bromley, Mark and Michael Brzoska. “Towards a Common, Restrictive EU Arms Export Policy?” European Foreign Affairs Review 13, issue 3 (2008): 333-356.
Diederik Cops, Nils Duquet, Gregory Gourdin. Towards Europeanised arms export controls? Comparing control systems in EU Member States. Brussels: Flemish Peace Institute, 2017.
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