EU arms embargoes – How they are implemented into national legislations

Restrictive measures or sanctions are essential to the EU’s Common Foreign and Security Policy (CFSP). The EU uses them as part of an integrated and comprehensive policy approach involving political dialogue, complementary efforts, and other instruments.

Key objectives are to safeguard the EU’s values, fundamental interests, and security, preserve peace, consolidate and support democracy, the rule of law, human rights, and the principles of international law, as well as prevent conflicts and strengthen international security.

Sanctions can target governments of non-EU countries because of their policies, entities (companies) providing the means to conduct the targeted policies, groups or organizations such as terrorist groups, or individuals supporting the targeted policies involved in terrorist activities.

Sanctions allow the EU to respond swiftly to political challenges and developments that go against its objectives and values. For instance, sanctions can target terrorism, nuclear proliferation activities, human rights violations, the annexation of foreign territory, deliberate destabilization of a sovereign country, and cyber-attacks.

The EU is imposing restrictive measures either on its initiative or to implement UN Security Council resolutions.

Sanctions include:

• Arms embargoes
• Economic sanctions or restrictions concerning specific sectors of economic activity, including import or export bans on certain goods, investment bans, prohibitions on supplying certain services, etc.
• Restrictions on the admission of listed persons (travel ban): targeted persons cannot enter the EU or travel beyond their member state of nationality if they are EU citizens
• Freezing of assets belonging to listed persons or entities: all their assets in the EU are frozen, and EU persons and entities cannot make any funds available to those listed

Let’s focus on arms embargoes.

How arms embargoes are adopted

The process for drafting and adopting arms embargoes in community law is as follows. Each embargo is first drafted in the EU Council at the political level by the Foreign Relations Counsellors Working Party (RELEX) with input from, inter alia, the relevant ‘geographical’ working parties and the Permanent Representatives Committee.

The Council then unanimously adopts the embargo as a decision as part of the Common Foreign and Security Policy (CFSP). The embargo is politically binding on EU Member States once the CFSP is published in the Official Journal of the European Union.

On the contrary to EU regulations (which are directly applicable in the EU Member States, as from the date of their entry into force according to the regulations), the measures laid down only in the CFSP decision will need to be implemented by the Member States. The European Commission will verify that the Member States have implemented the regulations properly and timely.

The relevant provisions of the Council Decision relate to applying arms embargoes against specific States and groups. In most cases, these are bans on the export and import of arms and related materiel (sometimes accompanied by exceptions and/or authorization possibilities in a limited number of cases) and bans on brokering services relating to such arms.

In the case of technical assistance or financing services relating to weapons, the relevant provisions of the Council Decision are very often taken over by the Council Regulation, which will be directly applicable and binding on companies and other economic players. The same applies to all other provisions of the Council Decision relating to other products and services, for which there is also a Council Regulation that follows the political decision within the Council.

Their implementation by the EU Member States

The EU decision related to the arms embargo has no direct effect on the territory of the Member States of the European Union. In the field of the Common Foreign and Security Policy (CFSP), and in particular, in all matters relating to the arms trade, it is addressed solely to the Member States, which have exclusive competence and the privilege of taking national measures to ensure the political decision taken together within the Council. While decisions are binding in their entirety, they cannot be applied by Member States in an incomplete, selective, or partial manner.

The national measures must prohibit the supply or sale of arms and related materiel of all types by nationals of member states or from the territory of Member States, whether or not they originate in their territories. They should also be applied against their citizens and companies registered in their territory for actions in their territory or abroad (‘extraterritoriality’).

The Member States must decide what legal means are used for such implementation.

Of all available measures, legislation is preferable, especially legislation establishing penal sanctions with a clearly defined offense and penalty.

A variety of implementation measures

The authorities must be contacted directly to obtain comprehensive information concerning EU Member States’ implementation and enforcement of EU and UN arms embargoes. There are no EU databases providing information on the national measures adopted by Member States to implement arms embargoes and/or other means by which they have sought to prohibit illicit arms from reaching an embargoed state. Instead, each State must be contacted individually.

The forms of national measures to implement embargoes vary significantly from State to State and depend upon whether the state’s legal system is common law or civil law.

A common law state must transform its international law obligations into national legislation to apply in its territory. This is often done by adopting an Act to effect UNSCRs or sanctions generally, followed by secondary legislation (such as a regulation) to effect a specific embargo. The regulation can establish the offenses committed by breaking the embargo and consequent penalties.

In contrast, civil law states have a ‘monist’ tradition, whereby adopting an international law instrument automatically incorporates it into the state’s domestic law. The monist tradition can be problematic as offenses and penalties are found in the state’s penal code and may not be directly tied to that state’s implementation and enforcement of each individual arms embargo.

National measures include primary legislation (Acts and Statutes), secondary or subordinate legislation (regulations), administrative orders, decrees, government orders, or rules.

Considerations for Economic Actors

What matters for companies dealing with sanctioned countries is knowing about the applicable laws in their home countries or transit countries.

For authorities, the aim should be to ensure the readability and consistency of domestic legislation and, hence, transparency and legal certainty.

The principle of legal certainty implies that people should be able, without insurmountable effort on their part, to determine what is permitted and what is prohibited by the applicable law and, therefore, to foresee, to a reasonable degree, the consequences of a given fact at the time when it occurs. Under this principle, the applicable rules of law must be comprehensible to the persons concerned to ensure equality before the law and the effectiveness of the rights guaranteed. A legislative text can never be incomprehensible or excessively complex.

As these are rules of strict interpretation, they require precise, concrete, and detailed wording, especially as they restrict freedom of trade and are accompanied by repressive solid provisions.

On the other hand, the principle of the legality of offenses and penalties requires that precise rules be laid down in criminal matters. Offenses should be defined in sufficiently clear terms, and the degree of punishment to be specified should rule out arbitrariness and enable those concerned to assess the exact nature and type of punishable conduct.

Case Study: How Three EU Countries Implement Arms Embargoes

We randomly selected Germany, Austria, and Luxembourg as a case study here.

Germany

In Germany, the relevant provisions are inserted into Chapter 8 of the Foreign Trade and Payments Ordinance (Aussenwirtschaftsverordnung, AWV), which is the implementing regulation of the Foreign Trade and Payment Law (Aussenwirtschaftsgesetz, AWG).

Article 74 AWV imposes, as a general rule in paragraph (1), a prohibition for the sale, export, and transit of goods covered by Part I Section A of the Export List from Germany or via Germany or their shipment using a ship or an aircraft entitled to bear the Federal flag or the national insignia of the Federal Republic of Germany shall be prohibited to a list of countries, numbered therein from 1 to 17 (3 positions bearing no country name currently).

The same prohibition is extended in paragraph (2) of the same article for transactions with listed persons or entities. Seven regimes are included here.

A prohibition of brokering services is contained in Article 75, where these services are directed towards a list of (currently) 14 countries (paragraph 1). The same prohibition is extended in paragraph 2, where the country of end-use is a country of a list of 13 countries.

Article 76 allows an exception to these prohibitions, subject to an authorization (par. 1). Paragraphs 2 to 17 are reserved to specific countries (one paragraph per country), where the goods or activities covered by these exception are indicated.

Article 76a foresees a general exception to the prohibition measures, independently from the countries involved, where the goods or services are for the use of German public administration, diplomatic or consular missions, or international intergovernmental organizations and agencies.

Article 77 deals with imports from listed countries (five), foreseeing a prohibition with exceptions (notably for Russia).

Article 78 has provisions for specific goods. The only country concerned here is North Korea.

Article 79 closes this chapter and applies Articles 74 to 77 also to Germans abroad.

All in all, it is a very well-structured legal text, precise and detailed. Let’s take Sudan here as an example (we use an English translation of the relevant texts, while the official language is German):