European Union (EU)

Updated on 28 May 2023
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Overview:

The European Union has set up, over the years, an export control system that applies to arms, dual-use items and certain other goods (of civilian or military nature). The export controls take into account the EU and its Member States' international obligations, including the UN Security Council Resolution 1540, the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention and the Biological Weapons Convention. They reflect commitments agreed upon in key multilateral export control regimes such as the Australia Group, the Wassenaar Arrangement, the Nuclear Suppliers Group and the Missile Technology Control Regime.

(A) Arms

In 2008, the European Council adopted Common Position 2008/944/CFSP which defines common rules governing the control of exports of military technology and equipment, replacing an earlier political agreement, the EU Code of Conduct on arms exports (1998). The EU is the only regional organisation to have established a legally binding arrangement on conventional arms exports.

The aim of the Common Position is to enhance the convergence of EU Member States’ arms-export-control policies, arms exports remaining ultimately a matter of national competence. In this respect, the Common Position incorporates eight common criteria (minimum standards) to be taken into account by EU Member States when assessing export licence applications for military technology and equipment, but also for brokering, transit transactions and intangible transfers of technology. Risk assessment criteria are notably relating to the risk of human rights and humanitarian law violations, the risk of diversion, the risk of internal or regional instability.

Moreover, the Common Position defines the scope of the items controlled – in a common EU Military List covering 22 categories of arms, munitions, military equipment and technologies. The EU List is aligned with the Wassenaar Arrangement (a voluntary export controls regime for conventional arms and dual-use items), and is regularly updated. The Common Position is implemented according to a User’s Guide developed within the Council’s COARM working party.

It lays down a notification and consultation mechanism for export licence denials , including a transparency procedure (publication of EU annual reports on arms exports).

The EU Common Position has contributed significantly to the convergence of national arms export control policies . It extends controls to brokering , transit transactions and intangible transfers of technology . Its principles and criteria have also been officially subscribed to by a number of countries outside the EU.

The EU supports the effective implementation and universalisation of the Arms Trade Treaty (ATT), notably through Council Decision 2017/915/CFSP. The ATT, opened for signature on 3 June 2013, is a compromise on common international standards for the arms trade and represents the emergence of a new international-law norm that arms transfers must be excluded in cases where there is serious risk of a violation of international humanitarian law, international human rights law and when there is a likelihood that such arms would undermine peace and security. It will also aim to set limits on arms transfers between states and non-state actors.

Common Position 2003/468/CFSP requires EU Member States to regulate brokering activities on their territory or carried out by their nationals, in particular by requiring arms brokers to apply for a licence, establishing an information-sharing system on brokering activities and laying down adequate penalties for illicit brokering.

(B) Dual-Use Items

The EU controls the export, transit and brokering of dual-use items, so the EU can contribute to international peace and security and prevent the proliferation of Weapons of Mass Destruction (WMD). EU export controls reflect commitments agreed upon in key multilateral export control regimes such as the Australia Group, the Wassenaar Arrangement, the Nuclear Suppliers Group and the Missile Technology Control Regime.

Council Regulation (EU) 2021/821 of 20 May 2021 (replacing Regulation 428/2009 of 5 May 2009 with effect from 9 September 2021) has set up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, which includes:

common export control rules, including a common set of assessment criteria and common types of authorisations (individual, global and general authorisations)
a common EU list of dual-use items
a “catch-all clause” for non-listed items which could be used e.g. in connection with a WMD programme
controls on brokering dual-use items and their transit through the EU
specific control measures to be introduced by exporters, such as record-keeping and registers
provisions setting up a network of competent authorities supporting the exchange of information and the consistent implementation and enforcement of controls throughout the EU

In certain cases, EU countries may put extra controls on non-listed dual-use items because of public security or human rights considerations.

Dual-use items may be traded freely within the EU, except for some particularly sensitive items, which transfer within the EU remains subject to prior authorisation (Annex IV of the Regulation).

The regulation is directly applicable throughout the EU. EU countries nevertheless need to take extra measures for implementing some of its provisions, e.g. enforcement and penalties.

(C) Torture Goods

One of the aims of the European Union’s foreign policy is to promote respect for fundamental rights in non-member countries.

The EU’s actions based on its commitment to stopping torture and abolishing capital punishment include measures to prevent the trade in certain goods that could be used for capital punishment or torture or other cruel, inhuman or degrading treatment.

Council Regulation (EC) No 1236/2005 concerning trade in such goods comprises a specific set of rules for the export controls applied to prevent listed medicinal products from being used for capital punishment in a third country, including a Union general export authorisation. It also imposes new restrictions on supplying brokering services related to any listed goods located in a third country, on supplying certain other services to third countries and on promoting certain goods in trade fairs in the Union.