COMMENTS ON
The Consultation Paper
on the Intra-Community Circulation of Products for the Defence of
Member States
BY
This paper by the Directorate General Enterprises and Industry of the
European Commission proposes a specific legislative instrument for
defence markets, thereby paving the way for EU Member States to come to
an agreement to weaken, or even abolish, the principle of prior
authorisation with regard to the circulation of all defence-related
products within the European Union. With this it builds further on the
precedent of the Farnborough Framework Agreement, in which the defence
ministers of six EU Member States committed themselves to applying
simplified export procedures to transfers of defence-related equipment
between them. The paper focuses mainly on two aspects of the export of
defence-related products: business interests and guarantees for the
protection of the national security of EU Member States. We think it is
worrisome that the EU Code of Conduct is hardly mentioned in the paper
at all. From the viewpoint of adherence to this Code of Conduct we call
your attention to the risk of re-exporting, the risks of company
certification and the negative effects on transparency that the
proposal in this paper will cause.
Re-exporting
One of our main concerns regarding the proposal in the paper is the
risk of re-exporting defence-related products to countries outside the
EU. Although it is said in the paper that, if it is considered
necessary, "each Member State should [therefore] explicitly authorise
any export to any third country of any product freely transferred
within the Community", in practice this will not work. It has to be
expected that most countries will leave the decision to the country
that the products are exported to within the EU. Given the demonstrated
reluctance of governments to voice disagreement with the export
policies of other countries regarding weapon systems that include
components coming from their countries, it is hardly imaginable that
they are willing to interfere with such export policies when
authorisation policies within the EU are weakened or abolished. For
exactly the same reasons a safeguard clause which would allow a Member
State to temporarily interrupt transfers to another Member State would
be unlikely to be invoked. With this in mind, there is of course a
severe risk that companies will use the Member State(s) with the least
strict export policies to export their products to countries outside
the EU. Given the diverging implementations of the EU Code of Conduct
this will easily reduce the EU arms export policies to a lowest common
denominator and undermine the sovereignty of individual countries to
use stricter export policies. Assigning a reference number to each
transfer of defence-related products, as is proposed in the paper,
might strengthen the possibilities to trace these products. However the
remark that declaring the final destination of the product shouldn't be
required before such a number should be assigned,, makes these
reference numbers a mere palliative, which in no way meets the above
mentioned objections.
Certification
Certifying companies to trade in defence-related products at Community
level without prior authorisation of individual transfers carries
within itself the presumption that companies will restrict themselves.
In our opinion this will only lead to business interests prevailing
over the strict observation of the EU Code of Conduct, furthering the
risks mentioned in the paragraph about re-exporting. Government
controls leading to individual export licences are the only means to
guarantee acceptable transfers of defence-related products, even within
the EU. Especially the advised recognition of certifications of
companies established in other Member States leaves hardly any room for
Member States to create their own (stricter) policies.
Transparency
Although the paper mentions 'transparency' several times as one of the
objectives of the proposal, it is more likely that transparency from
the viewpoint of parliamentary and civil society controls will severely
decrease. Especially when components go from one country to another it
is hardly possible for the country of origin to keep track of what
happens with the end-use of weapon systems that incorporate these
components. Without licenses parliamentary control will loose much of
its significance, as it can't be expected that MPs, or even NGOs, will
be able keep track of what is the final destination of defence-related
products which are originally from their country. It doesn't even
become clear if there will be a record of transports of defence-related
equipment within the EU at all, especially for exports by companies
with special certifications. Moreover it will become increasingly
unclear for parliaments and NGOs whom they can hold responsible for
questionable exports: their own government or the government of the
country that grants permission for the export to a country outside the
EU, which they can't even directly address.
In the consultation paper defence related-products are regarded to be
just another product, for which the principle of free movement of goods
and services and commercial policy should be applied. This idea doesn't
do justice to the incomparable characteristics of defence equipment, in
that the consequences of its use are deadly and destructive.
Accordingly, unwanted exports should be prevented. The best guarantee
for this is a
transparent, verifiable and strict export policy of each EU Member
State, so that each state can be held responsible for the export of its
own defence-related products. Therefore we urge the European Commission
to uphold the right of Member States to maintain export authorisation
and controls for the transfer of defence-related products within the
EU.
