The current Military Equipment Export Report (in German) shows that the Federal Government continued its responsible and restrictive policy to exports of military equipment throughout 2018. In 2018, single-transaction export licences worth a total of €4.82 billion were issued (2017: €6.24 billion).

For a well-grounded consideration of exports of military equipment, it is also vital to make distinctions in terms of the nature of the exported good, the ways it can be used, and the specific country of destination. For example, a large proportion – 47.2% – went to licences for exports to EU/NATO and NATO-equivalent countries – countries to which, according to the Federal Government’s “Political Principles”, the export of military equipment is not normally subject to restriction.

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, the Foreign Trade and Payments Ordinance, the “Political Principles Adopted by the Government of the Federal Republic of Germany for the Export of War Weapons and Other Military Equipment” of 26 June 2019 (“Political Principles”) (in German) (PDF, 194 KB), the EU Council Common Position defining common rules governing control of exports of military technology and equipment of 8 December 2008 and the Arms Trade Treaty. In some respects, the German government applies stricter criteria than those imposed in the EU Council Common Position, particularly regarding the control of small arms.

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 especially 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 for war weapons exports 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. The Federal Office for Economic Affairs and Export Control (BAFA) is responsible for issuing licences for exports of other military equipment.

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.

Greater regulation of small arms

In order to improve the control of small arms and light weapons (particularly machine guns, submachine guns and assault rifles), the German government adopted the “Minister Gabriel: Tighter rules on small-arms exports” (Principles on the issue of licences for the export of small and light weapons, related ammunition and corresponding manufacturing equipment to third countries) in March 2015.

They supplement the strict criteria of the existing Political Principles. The new Small Arms Principles provide not least that in principle no licences to export components and technology to third countries (e.g. in the context of the granting of licences to manufacture) will be granted where such exports would lead to the establishment of a new manufacturing line for small arms or the relevant ammunition. The basic principle is “new for old”. If the recipient wishes to obtain small arms, he needs to discard and destroy old small arms. The aim is to prevent the proliferation of small arms. In cases in which the new purchase covers a credible need on the part of the recipient for more equipment, and old weapons do not need to be destroyed, the recipient has to make a binding promise to destroy the new weapons when they are discarded (the “alternative” principle of “New, destroy when discarded”). Also, recipients in third countries will in future require the agreement of the German government before they hand small arms on to other recipients in the country of destination than those covered by the export licence.

Introduction of post-shipment controls

In order to improve the controls of the end-use of war weapons and other military equipment, the German government introduce “post-shipment controls” on a pilot basis in third countries in 2015. What this means is that, before the export licence is issued, state recipients of small arms in third countries have to agree to actual controls of the cited end-use of the military equipment in the country of destination. In other words, following the export, it is possible to inspect whether the small arms are still in the possession of the end-user in the country of destination. This can prevent small arms from being passed on to others without permission. This improves end-use verification for military equipment exported from Germany.

The German government created the basis for this in July 2015 in its key principles on the introduction of post-shipment controls and in changes made to the Foreign Trade and Payments Ordinance in March 2016. Germany has thus introduced a system where controls for exports of military equipment do not end with the granting of an export licence. Germany is a pioneer in this approach, alongside just a few other countries, at European and international level.

In a pilot phase, initial experience is being gathered with on-the-spot controls of the end-use of small arms. The on-the-spot controls can of course not be carried out until weapons have been produced and exported subject to post-shipment controls. In 2017, the first post-shipment controls to verify the actual final destination of small arms were carried out. The on-the-spot controls at state recipients in India and the United Arab Emirates revealed no problems.

Dual use goods and surveillance technology

Dual use goods are not military equipment. They are goods that can be used both for civilian and for military purposes, such as machine tools, testing and measuring equipment, materials, valves, electronics and a host of other industrial products. Their export is regulated at European level by the Dual-Use Regulation.

Timely information for parliament on export licences

As part of its transparency campaign, in June 2014 the cabinet adopted changes to the rules of procedure of the Federal Security Council (in German) so that for the first time the parliament could be informed about final decisions on licences for the export of military equipment. In this way, the German government is going beyond the demands made by the Federal Constitutional Court: it is informing the parliament not only when requested to do so, but proactively after each session of the Federal Security Council. The government answers questions in parliament about a wide range of aspects of military equipment export policy; the answers can be found (in German) here.

The German government has disclosed all the final decisions on licences for the export of military equipment taken by the Federal Security Council since 2002.

The Federal Security Council only handles politically sensitive exports of military equipment – and particularly those of war weapons to third countries. The German government has now disclosed all the final decisions on licences taken by this body since 2002: in its answer to a question in parliament (BT-Drucksache 18/3002 (PDF: 8,6 MB; in German), the government has stated in detail which exports have been approved by the Federal Security Council since 2002. The German government has thus provided transparency for decisions from previous years, matching the level of transparency for current decisions. A new feature is that the companies exporting the equipment are named.

Consultation process on the future of export controls for military equipment

The Federal Ministry for Economic Affairs and Energy has held a consultation process on the future of export controls for military equipment; in it, various ways to develop the system of controls were discussed and weighed up with representatives of the business and scientific communities, research institutes and civil society. The results of the consultation process are now being systematically processed and will form the basis for the next steps. The aim of the process is to take an overall look at the system of export controls for military equipment in Germany in order to explore ways to modernise and improve it.