(Jan. 13, 2009) Until December 8, 2008, each Member State of the European Union had the discretion to decide on a case-by-case basis whether to allow exportation of conventional arms and the transfer of technology to a third country, as long as the general legal requirements established by the EU were met and no embargo or other sanction was imposed by the EU, the Security Council of the United Nations, or the Organization on Security and Co-operation in Europe. Since 1998, EU Members had agreed voluntarily to apply the broad guidelines pertaining to arms exports. The guidelines were contained in the 1998 European Code of Conduct on Arms Exports. The Code, however, lacked binding force because it was simply a political agreement.
On December 8, 2008, the Council of the EU finally responded to the long-standing call by some EU Members and, in particular, the European Parliament to adopt binding rules on arms exports. As a result of the Council's action, the Code has been transformed into a legally binding document that must be incorporated into the legal systems of the EU Members. (Council Common Position Defining Common Rules Governing the Control of Exports of Military Technology and Equipment, 15972/1/08 REV 1, Dec. 8, 2008, available at http://register.consilium.europa.eu/pdf/en/08/st15/st15972-re01.en08.pdf.)
Currently, at the European Union level, arms exports are subject to the following legal instruments: 1) the December 8, 2008, Council Common Position on the Control of Exports of Military Technology and Equipment, which replaced the 1998 European Code of Conduct on Arms Exports; 2) Regulation (EC) No. 1334/2000 Establishing a Community Regime for the Control of Exports of Dual-Use Items and Technology (as amended); and 3) Common Position 2003/468/CFSP on the Control of Arms Brokering. A Common List of Military Equipment was established in 2000 and is regularly updated.
The Common Position retains eight criteria that were set forth in the Code of Conduct, but they are now mandatory and must be applied by EU Members to the export of conventional arms, including related software and military technology. In practice, the process of applying these criteria occurs during the review of an export license request by an EU Member and prior to making a decision as to whether or not to permit exportation of arms to a third country. The criteria for a decision to permit such exports, as contained in the Common Position and the Code of Conduct, include:
- the compatibility of the exportation of arms with the exporter's international commitments;
- the risk of the exportation being used for internal repression or of the recipient country's being involved in serious violations of human rights;
- the danger of the exportation's provoking or prolonging armed conflicts; and
- the danger of the exports being diverted to third parties or to a terrorist organization.
The EU had released annual reports on implementation of the Code of Conduct. Statistics recently released by the EU in its 2008 report on arms export licenses indicate that in 2007, EU Member States allowed the exportation of about €200 million worth of arms exports to Israel. EU Members are not required to provide detailed and accurate accounts of such exports. According to the report, 18 Member States authorized a total of 1,018 licenses to Israel worth €199,409,348 (about US$269 million), with France, Germany, and Romania being the top three exporters. France issued export licenses valued at €126 million (about US$170 million); Germany, €28 million (about US$38 million); and Romania, €17 million (about US$23 million). In addition, Bulgaria, Germany, Poland, Romania, and the United Kingdom exported small arms and ammunition to Israel valued at €12 million (about US$16 million). Sweden and eight other EU countries did not export any arms to Israel. (Leigh Phillips, Arms Exports to Israel from EU Worth €200m, EU OBSERVER, Jan. 1, 2009, available at http://euobserver.com/9/27359/?rk=1.)