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EU Code of Conduct on Arms Exports
The Council of the European Union,
BUILDING on the Common Criteria agreed at the Luxembourg
and Lisbon European Councils in 1991 and 1992,
RECOGNISING the special responsibility of arms exporting
states,
DETERMINED to set high common standards which should be regarded
as the minimum for the management of, and restraint in, conventional
arms transfers by all EU Member States, and to strengthen
the exchange of relevant information with a view to achieving
greater transparency,
DETERMINED to prevent the export of equipment which might
be used for internal repression or international aggression,
or contribute to regional instability,
WISHING within the framework of the CFSP to reinforce their
cooperation and to promote their convergence in the field
of conventional arms exports,
NOTING complementary measures taken by the EU against illicit
transfers, in the form of the EU Programme for Preventing
and Combating Illicit Trafficking in Conventional Arms,
ACKNOWLEDGING the wish of EU Member States to maintain a
defence industry as part of their industrial base as well
as their defence effort,
RECOGNISING that states have a right to transfer the means
of self-defence, consistent with the right of self-defence
recognised by the UN Charter,
have adopted the following Code of Conduct and operative
provisions:
CRITERION ONE
Respect for the international commitments of EU member states,
in particular the sanctions decreed by the UN Security Council
and those decreed by the Community, agreements on non-proliferation
and other subjects, as well as other international obligations
An export licence should be refused if approval would be
inconsistent with, inter alia:
a) the international obligations of member states and their
commitments to enforce UN, OSCE and EU aenforce UN, OSC
b) the international obligations of member states under the
Nuclear Non-Proliferation Treaty, the Biological and Toxin
Weapons Convention and the Chemical Weapons Convention;
c) their commitments in the frameworks of the Australia Group,
the Missile Technology Control Regime, the Nuclear Suppliers
Group and the Wassenaar Arrangement;
d) their commitment not to export any form of anti-personnel
landmine.
CRITERION TWO
The respect of human rights in the country of final destination
Having assessed the recipient country's attitude towards
relevant principles established by international human rights
instruments, Member States will:
a) not issue an export licence if there is a clear risk that
the proposed export 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 equipment, to countries where serious violations of human
rights have been established by the competent bodies of the
UN, the Council of Europe or by the EU;
For these purposes, equipment which might be used for internal
repression will include, inter alia, equipment where there
is evidence of the use of this or similar equipment for internal
repression by the proposed end-user, or where there is reason
to believe that the equipment will be diverted from its stated
end-use or end-user and used for internal repression. In line
with operative paragraph 1 of this Code, the nature of the
equipment will be considered carefully, particularly if it
is intended for internal security purposes.
Internal repression includes, inter alia, torture and other
cruel, inhuman and degrading treatment or punishment, summary
or arbitrary executions, disappearances, arbitrary detentions
and other major violations of human rights and fundamental
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.
CRITERION THREE
The internal situation in the country of final destination,
as a function of the existence of tensions or armed conflicts
Member States will not allow exports which would provoke
or prolong armed conflicts or aggravate existing tensions
or conflicts in the country of final destination.
CRITERION FOUR
Preservation of regional peace, security and stability
Member States will not issue an export licence if there is
a clear risk that the intended recipient would use the proposed
export aggressively against another country or to assert by
force a territorial claim.
When considering these risks, EU Member States will take
into account inter alia:
a) the existence or likelihood of armed conflict between
the recipient and another country;
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;
c) whether the equipment would be likely to be 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.
CRITERION FIVE
The 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 will take into account:
a) the potential effect of the proposed export on their defence
and security interests and those of friends, allies and other
member states, while recognising that this factor cannot affect
consideration of the criteria on respect of human rights and
on regional peace, security and stability;
b) the risk of use of the goods concerned against their forces
or those of friends, allies or other member states;
c) the risk of reverse engineering or unintended technology
transfer.
CRITERION SIX
The behaviour of the buyer country with regard to the international
community, as regards in particular to its attitude to terrorism,
the nature of its alliances and respect for international
law
Member States will take into account inter alia the record
of the buyer country with regard to:
a) its support or encouragement of terrorism and international
organised crime;
b) its compliance with its international commitments, in
particular on the non-use of force, including under international
humanitarian law applicable to international and non-international
conflicts;
c) its commitment to non-proliferation and other areas of
arms control and disarmament, in particular the signature,
ratification and implementation of relevant arms control and
disarmament conventions referred to in sub-para b) of Criterion
One.
CRITERION SEVEN
The existence of a risk that the equipment will be diverted
within the buyer country or re-exported under undesirable
conditions
In assessing the impact of the proposed export on the importing
country and the risk that exported goods might be diverted
to an undesirable end-user, the following will be considered:
a) the legitimate defence and domestic security interests
of the recipient country, including any involvement in UN
or other peace-keeping activity;
b) the technical capability of the recipient country to use
the equipment;
c) the capability of the recipient country to exert effective
export controls;
d) the risk of the arms being re-exported or diverted to
terrorist organisations (anti-terrorist equipment would need
particularly careful consideration in this context).
CRITERION EIGHT
The compatibility of the arms exports with the technical
and economic capacity of the recipient country, taking into
account the desirability that states should achieve their
legitimate needs of security and defence with the least diversion
for armaments of human and economic resources
Member States will take into account, in the light of information
from relevant sources such as UNDP, World Bank, IMF and OECD
reports, whether the proposed export would seriously hamper
the sustainable development of the recipient country. They
will consider in this context the recipient country's relative
levels of military and social expenditure, taking into account
also any EU or bilateral aid.
OPERATIVE PROVISIONS
1. Each EU Member State will assess export licence applications
for military equipment made to it on a case-by-case basis
against the provisions of the Code of Conduct.
2. This Code will not infringe on the right of Member States
to operate more restrictive national policies.
3. EU Member States will circulate through diplomatic channels
details of licences refused in accordance with the Code of
Conduct for military equipment together with an explanation
of why the licence has been refused. The details to be notified
are set out in the form of a draft pro-forma at Annex A. 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 will 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 will notify the Member State or States
issuing the denial(s), giving a detailed explanation of its
reasoning.
The decision to transfer or deny the transfer of any item
of military equipment will 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 physical export of the item of military
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 negotiations
or a negative response to a formal initial enquiry about a
specific order.
4. EU Member States will keep such denials and consultations
confidential and not to use them for commercial advantage.
5. EU Member States will work for the early adoption of a
common list of military equipment covered by the Code, based
on similar national and international lists. Until then, the
Code will operate on the basis of national control lists incorporating
where appropriate elements from relevant international lists.
6. The criteria in this Code and the consultation procedure
provided for by paragraph 3 of the operative provisions will
also apply to dual-use goods as specified in Annex 1 of Council
Decision 94/942/CFSP as amended, where there are grounds for
believing that the end-user of such goods will be the armed
forces or internal security forces or similar entities in
the recipient country.
7. In order to maximise the efficiency of this Code, EU Member
States will work within the framework of the CFSP to reinforce
their cooperation and to promote their convergence in the
field of conventional arms exports.
8. Each EU Member State will circulate to other EU Partners
in confidence an annual report on its defence exports and
on its implementation of the Code. These reports will be discussed
at an annual meeting held within the framework of the CFSP.
The meeting will also review the operation of the Code, identify
any improvements which need to be made and submit to the Council
a consolidated report, based on contributions from Member
States.
9. EU Member States will, as appropriate, assess jointly
through the CFSP framework the situation of potential or actual
recipients of arms exports from EU Member States, in the light
of the principles and criteria of the Code of Conduct.
10. It is recognised that Member States, where appropriate,
may also take into account the effect of proposed exports
on their economic, social, commercial and industrial interests,
but that these factors will not affect the application of
the above criteria.
11. EU Member States will use their best endeavours to encourage
other arms exporting states to subscribe to the principles
of this Code of Conduct.
12. This Code of Conduct and the operative provisions will
replace any previous elaboration of the 1991 and 1992 Common
Criteria.
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