Council Decision (CFSP) 2021/38 of 15 January 2021 establishing a common approach on the elements of end-user certificates in the context of the export of small arms and light weapons and their ammunition

• CELEX: Decision (CFSP) 2021/38
• Articles: 12

Article 1

The purpose of this Decision is to help prevent the diversion of small arms and light weapons (SALW) and their ammunition to unintended end-users or end-uses, by agreeing on common elements for end-user certificates in the context of the implementation of the Union’s common rules governing control of exports of military technology and equipment.

Article 2

This Decision applies to permanent exports of SALW and their components, accessories and ammunition, as set out in the Annex.

Article 3

For the purposes of this Decision, the following definitions apply:

(1)

‘end-user’ means the final consignee and owner of the exported goods known at the time of the export licence application, according to the contractual terms of the transaction;

(2)

‘export’ means any departure of goods from the customs territory of the Union, including the departure of goods that require a customs declaration and the departure of goods after their storage in a free zone within the meaning of Regulation (EU) No 952/2013 of the European Parliament and of the Council  ( 6 ) ;

(3)

‘exporter’ means any natural or legal person or partnership resident or established in the Union that submits an export licence application or on whose behalf such an application is submitted, namely the person or partnership that, at the time the application is accepted, holds the contract with the consignee in the relevant third country and has the necessary power to determine the sending of the goods out of the customs territory of the Union. If no such contract has been concluded or if the holder of that contract does not act on its own behalf, ‘exporter’ means the person, entity or body who has the necessary power to determine the sending of the goods out of the customs territory of the Union. Where the benefit of a right to dispose of the goods belongs to a person, entity or body resident or established outside the Union pursuant to that contract, ‘exporter’ means the contracting party resident or established in the Union.

Article 4

Authorisation by a Member State of the export of goods as referred to in Article 2 shall require a thoroughly checked end-user certificate or appropriate documentation, signed by the end-user prior to that authorisation.

Article 5

1.   Member States shall require the following essential elements regarding identification to be included in the end-user certificate referred to in Article 4:

(a)

details of the exporter (including name, address, business name and, if available, company registration number);

(b)

details of the end-user (including name, address, business name and, if available, company registration number). In the case of export to a private company that resells the goods on a local market, that company will be regarded as the end-user for the purposes of this Decision. This shall not prevent Member States from evaluating licence applications that concern exports to resellers differently from licence applications concerning exports to end-users;

(c)

country of final destination;

(d)

description of the goods, including, if available, the contract number or order number;

(e)

if applicable, quantity or value of the goods intended for export;

(f)

signature, name and title of the end-user and, if deemed necessary by the Member State concerned, name of the competent government authority in the country of final destination;

(g)

if applicable, certification by the relevant government authorities, according to national practice (including the date, name, title and original signature of the authorising official);

(h)

the date of issue of the end-user certificate;

(i)

if applicable, a unique identifying number or contract number relating to the end-user certificate;

(j)

indication of the intended end-use of the goods;

(k)

if appropriate, details of the relevant broker (including name, address, business name and, if available, company registration number).

2.   Member States shall require the following essential commitments by the end-user with regard to the goods covered by the end-user certificate referred to in Article 4 to be included in that certificate, by means of its signature by the end-user:

(a)

that the goods will not be used for purposes other than the declared use; and

(b)

that any re-export of the goods:

(i)

outside of the importing country, or transfer of custody of the goods within the importing country, is prohibited; or

(ii)

is limited to a list of countries identified in the end-user certificate, or that any transfer of custody of the goods within the importing country is limited to a list or category of entities identified in the end-user certificate; or

(iii)

outside of the importing country, or transfer of custody of the goods within the importing country, must be subject to prior written approval by the authorities of the exporting Member State. A Member State may decide to transfer the authority to provide such an approval to the competent authorities of the importing country.

Article 6

Member States may require the following optional elements to be included in the end-user certificate referred to in Article 4:

(a)

a commitment by the end-user to notify the exporting Member State in case of loss or theft of the goods covered by the end-user certificate;

(b)

a commitment by the end-user to confirm reception of the goods covered by the end-user certificate, including their exact quantity;

(c)

a commitment by the end-user to allow post-shipment on-site verification of the exported goods by representatives of the exporting Member State, including details of arrangements for the verification visits;

(d)

assurances by the end-user that demonstrate its capacity for safe and secure weapons and ammunition management, including its capacity for safe and secure management of the stockpiles where the goods will be stored;

(e)

a commitment by the end-user on decommissioning of surplus military equipment, including:

(i)

a ‘new for old’ commitment to destroy the old goods that will be replaced by the imported goods; and/or

(ii)

a ‘destruction after decommissioning’ commitment to destroy the imported goods after decommissioning.

Article 7

Member States shall hold records of the issued end-user certificates referred to in Article 4 in accordance with national law and practice.

Article 8

When deemed necessary, Member States shall verify the authenticity of the signature on the end-user certificate and, if relevant, the capacity of the signatory to make commitments on behalf of the end-user. In case of doubt regarding the authenticity of the end-user certificate, Member States may verify it by any means according to national practice. If the authenticity of the end-user certificate cannot be verified, the Member State shall not issue the licence.

Article 9

If a Member State identifies a fraud with, falsification of, or violation of an end-user certificate, it shall share this information with the other Member States via the COARM online system, taking into account relevant national considerations.

Article 10

Member States shall share samples of their end-user certificate formats, if available, with the other Member States via the COARM online system.

Article 11

This Decision shall enter into force on 31 December 2021.

Schedules & Appendices

ANNEX

ANNEX

This Decision shall apply to the following categories of military equipment, insofar as these categories are included in categories ML1, ML2, ML3 and ML4 of the Common Military List of the European Union.

The following categories do not prejudge any future internationally agreed definition of small arms and light weapons (SALW) and may be subject to further clarification, and may be reviewed in the light of any future internationally-agreed definition of SALW.

Categories of military equipment to which this Decision applies:

(a)

small arms:

—

assault rifles,

—

semi-automatic rifles and carbines specially designed for military use,

—

revolvers and self-loading pistols specially designed for military use,

—

light machine guns,

—

sub-machine guns, including machine pistols;

(b)

light weapons:

—

heavy machine guns,

—

cannons, howitzers and mortars of less than 100 mm calibre,

—

grenade launchers,

—

recoilless guns,

—

man- or crew-portable shoulder-fired rockets and other anti-tank and air defence systems that fire projectiles, including MANPADS;

(c)

components, specially designed for equipment listed in points (a) and (b);

(d)

accessories (such as night scopes, sound suppressors, etc.) specially designed for equipment listed in points (a) and (b);

(e)

ammunition designed to be fired by equipment listed in points (a) and (b).