The Federal Government decides on such exports on the basis of the Basic Law, the War Weapons Control Act (in German), the Foreign Trade and Payments Act (in German), the Foreign Trade and Payments Ordinance (in German), the “Political Principles Adopted by the Government of the Federal Republic of Germany for the Export of War Weapons and Other Military Equipment” of 19 January 2000 (“Political Principles”) (PDF: 90 KB; in German) and the EU Council Common Position defining common rules governing control of exports of military technology and equipment of 8 December 2008. Together with the new small arms and post-shipment principles adopted by the government, the German government has adopted the strictest rules on the export of military equipment in the history of the Federal Republic. In some respects, the German government applies stricter criteria than those imposed in the EU Council Common Position.
A particularly strict regime for exports to third countries
The German government examines the export applications very thoroughly on the basis of these rules. The examination attaches great significance to the preservation of peace, security and stability, and the upholding of human rights. The criteria for the examination differentiate between the EU, NATO and NATO-equivalent countries (Australia, Japan, New Zealand, Switzerland) on the one hand and “third countries” on the other.
The Federal Government adheres to very strict principles in the case of exports of military equipment to “third countries” - i.e. those outside the EU, NATO and NATO-equivalent countries: the export of war weapons is not licensed unless special foreign or security policy interests argue in favour of a licence in an individual case. The manufacture, trade, brokering and export of war weapons are subject to the strict provisions of the War Weapons Control Act. This Act states explicitly that no-one enjoys an entitlement to the granting of an export licence. The export of “other military equipment” (military equipment which is not war weapons) is governed by the Foreign Trade and Payments Act and Ordinance. The Foreign Trade and Payments Act lays down the principle that foreign trade and investment is not generally subject to restrictions. For this reason, the applicant is basically entitled to receive an export licence unless essential security or foreign policy interests of the Federal Republic of Germany or other reasons (Section 4 of the Act) argue against this. Pursuant to Section 4 of the Foreign Trade and Payments Act, a licence can be refused if the security interests of Germany are endangered, the peaceful co-existence of nations is disrupted, or a substantial disturbance to Germany’s foreign relations is likely.
Who decides whether a licence should be issued?
Apart from the fields of the Bundeswehr, the customs frontier service and the agencies responsible for maintaining public security, the responsibility for issuing licences has been transferred to the Federal Ministry for Economic Affairs and Energy. It decides on applications to export war weapons in agreement with the Federal Foreign Office and the Federal Ministry of Defence. For other military equipment, responsibility rests with the Federal Office for Economic Affairs and Export Control (BAFA).
Decisions on projects to export military equipment are taken following a careful weighing up, including input from the Federal Ministry for Economic Affairs and Energy and the Federal Foreign Office, of the respective arguments in terms of foreign, security and human rights policy. Where there are differing views between the ministries involved in the decision-making process, or the cases are especially significant, the Federal Security Council usually decides on the issuance or denial of export licences.
Establishing a uniform policy on military equipment exports in the EU
The Member States are responsible for policy on military equipment exports. However, the EU Member States are guided by the legally binding Council Common Position 2008/944/CFSP defining common rules governing control of exports of military technology and equipment, which was adopted in December 2008. Beyond this, the Federal Government is working towards a situation in which a similar approach is taken within the EU to decisions on exports of military equipment. For example, the Federal Government is calling at European and international level for rules which correspond to what currently is a stand-alone approach in the EU: Germany’s small arms and post-shipment principles.