From: The following text is of an updated statement regarding arms export=20
regulations originally delivered at the OSCE seminar of 20-21 June 1995 =
by the=20
German delegation. Participants were requested to supply their relevant =
national=20
export legislation and indicate how the documents reflected their =
respective=20
export policy. The information is revised to take account of changes in the national =
export=20
laws and regulations of FR Germany. The statement is indexed as follows: Question=20
10: Policy on the revocation of export licences once they have been=20
approved. Question=20
14: Licence documents and any standard conditions attached to =
it. Question=20
19: Are all guidelines governing conventional arms transfers nationally=20
published? Decisions in Germany on the export of war weapons and other military=20
equipment are mainly based on the Political Principles Governing the =
Export of=20
War Weapons and Other Military Equipment (Political Principles) of 1982 =
(amended=20
May 21, 1999) and on the relevant European and international commitments =
entered=20
into by the German government, and particularly the EU Code of Conduct =
on Arms=20
Exports. The 1982 Political Principles make a fundamental distinction =
between=20
exports to NATO countries and to other ("third") countries. Exports of war weapons and other military equipment to NATO countries =
(and=20
NATO equivalent countries, such as Australia, Japan, Sweden, =
Switzerland) are in=20
line with Germany’s security inter-ests and in principle are =
unrestricted.=20
Exports of war weapons to third countries, in contrast, are only =
feasible if=20
indicated by "vital interests." Vital interests are the foreign and =
security=20
policy in-terests of Germany, bearing in mind the interests of the =
Alliance;=20
employment aspects are not al-lowed to play a significant role. The export of other military equipment is authorised to the extent =
that the=20
provisions of s. 7 of the Foreign Trade and Payments Act do not indicate =
otherwise; these provisions aim to protect the security of the Federal =
Republic=20
of Germany, the peaceful coexistence of nations, and foreign =
relations. Decisions on exports of military equipment to third countries are =
made on the=20
basis of a thorough examination of each case. The most important aspect =
is=20
whether the internal situation in the country of destination (including =
the=20
human rights situation) contradicts the export; this might be the case =
if there=20
is internal unrest or the threat of unrest, or if violations of human =
rights=20
have taken place or are to be feared. Another significant aspect is =
whether=20
armed conflict is taking place or is likely between the country of =
destination=20
and its neighboring states. In general, it must be certain that the =
military=20
equipment will only be used for the purposes of defense. The Code of Conduct on Arms Exports adopted in June 1998 by the EU =
Council=20
reflects the prin-ciples which have always formed a basis for German =
defense=20
exports. The code has now formu-lated this in instructions for action =
which the=20
licensing agencies must use as a basis for their deci-sions. Germany’s policy on defense exports forms part of its foreign =
and security=20
policy, which aims to preserve the peace. It corresponds to decisions on =
values=20
which have been firmly entrenched across the political spectrum since =
the German=20
constitution was promulgated. There is a broad consensus in the =
Bundestag on the=20
legal and political foundations of Germany’s policy on exports of =
military=20
equipment and the restrictive approach taken by the government. The principles of Germany’s export policy are reflected in the =
fact that=20
military equipment accounts for only a small proportion of total German =
exports.=20
For example, exports of war weapons tradi-tionally account for less than =
0.5 %=20
of all exports, and mainly go to countries which are members of NATO or =
the=20
OECD. This is particularly true of major military weapons systems (e.g. =
combat=20
tanks, combat aircraft, combat helicopters). (1) German defense exports are regulated in the Basic Law, the War =
Weapons=20
Control Act and the Foreign Trade and Payments Act in conjunction with =
the=20
Foreign Trade and Payments Ordi-nance. In addition, the German =
government=20
adopted "Political Principles" on April 28, 1982 to provide the =
licensing=20
agencies with guidelines for the scope of and limits to the discretion =
open to=20
them. (2) The War Weapons Control Act stipulates that all handling of war =
weapons=20
requires prior approval; this requirement primarily refers to the =
manufacture,=20
acquisition and transfer of actual control, to all types of transport =
(within=20
Germany; import, export and transit), and to deals by intermediaries, =
even if=20
the war weapons do not enter German territory. Pursuant to section 6 of the War Weapons Control Act, there is no =
legal right=20
to receive a li-cence. Instead, such a licence must be refused if there =
is a=20
danger that the war weapons will be used in a way which disturbs the =
peace, that=20
international commitments entered into by Ger-many will be violated, or =
that the=20
applicant is not sufficiently reliable to undertake the envisaged =
action. Beyond=20
this, the issuance/refusal of an export licence is subject to the =
political=20
discre-tion of the Federal Government, and it uses its discretion in =
line with=20
the principles outlined above. (3) The export of so-called "other military equipment" is subject to =
the=20
rules contained in the Foreign Trade and Payments Act and the Foreign =
Trade and=20
Payments Ordinance. The ap-plicant has a right to receive an export =
licence=20
unless a licence cannot be issued because one of the principles of =
section 7 of=20
the Foreign Trade and Payments Act (safeguarding the security of the =
Federal=20
Republic of Germany, disruption to the peaceful coexistence of nations,=20
consid-erable disruption to Germany’s foreign relations) would be=20
violated. Germany is a founding member of the Wassenaar Arrangement and, as a =
member of=20
the EU, is bound to the code of conduct for arms exports adopted by the =
European=20
Council in June 1998. For war weapons, the licensing authority for commercial exports is =
the=20
Federal Ministry of Eco-nomics. The Federal Ministry of Defense is =
responsible=20
for matters relating to the federal armed forces. The Federal Ministry =
of=20
Finance and the Federal Ministry of the Interior are also responsi-ble =
for=20
certain specific areas. Applications from companies should therefore normally be submitted to =
the=20
Federal Ministry of Economics; the ministry decides on these projects =
together=20
with the Federal Foreign Office and the Federal Ministry of Defense. Applications for the export of "other military equipment" should be =
submitted=20
to the Fed-eral Export Office (an agency of the Federal Ministry of =
Economics),=20
which decides on the applica-tions. Significant projects are presented =
to the=20
Federal Ministry of Economics and the Federal For-eign Office for a =
political=20
assessment. The Federal Customs Administration is responsible for combating and=20
preventing violations of prohibitions and restrictions contained in =
foreign=20
trade and payments legislation, including breaches of embargoes. This=20
supervision of foreign trade and payments includes: - clearing the export shipments at the customs offices The controls in place at the point of export are too summary to be =
able to=20
ensure adherence to the foreign trade and payments rules. In view of the =
immense=20
volume of exports from Germany (more than DEM 500 billion each year), =
they are=20
confined to a check to see that the customs documenta-tion is in order, =
and are=20
supplemented by checks on the financial accounts of the exporting =
compa-nies by=20
the external auditors of the customs authorities. The latter controls, =
which can=20
be undertaken at any time without the need for suspicion of wrong-doing, =
are=20
generally implemented when there is information indicating the =
possibility that=20
the exporter has not kept to the rules. Such information mainly derives =
from the=20
preliminary investigations by the customs investigation service, from=20
observation of the market by the Customs Criminological Office and from =
its=20
findings from monitoring mail and telecommunications in order to prevent =
serious=20
violations of the Foreign Trade and Payments Act and the War Weapons =
Control=20
Act. The customs investigation service consists of the Customs =
Criminological=20
Office in Cologne and 21 customs investigation offices with 10 further =
branches.=20
Throughout Germany, some 2500 inves-tigatory officials are deployed. The =
customs=20
investigation offices are local agencies, but they are responsible for=20
investigations covering the whole of Germany. The Customs Criminological =
Office,=20
which was set up as a federal agency in 1992, functions as an =
information and=20
coordination centre for the customs investigation service; it conducts =
its own=20
investigations in supra-regional cases, and can issue instructions to =
all of the=20
investigatory authorities of the cus-toms administration in individ-ual=20
cases. As auxiliary officials supporting the public prosecution service, the =
officials of the customs investi-gation service have the same rights and =
duties=20
as police officers. The range of instruments available to combat crime in the field of =
foreign=20
trade and payments has been substantially improved in recent years; it =
aims not=20
only to prosecute offenders, but also to pre-vent illegal exports =
occurring in=20
the first place. The most important aspect is the authorization given to =
the=20
Customs Criminological Office to monitor mail and telecommunications; =
this=20
authorization has now been extended until 2000. Where there are =
indications that=20
a serious crime is being planned against foreign trade and payments law, =
the=20
Customs Criminological Office is empowered to monitor the telephone, fax =
and=20
mail traffic of the persons/companies involved in foreign trade and =
payments=20
transactions, even before a criminal act has been committed. In addition to this, the computer-based KOBRA export monitoring =
system has=20
considerably expanded the information base of the surveillance and =
investigatory=20
authorities. By using computers, it is possible to keep tabs on exports, =
analyze=20
the export patterns of exporters and the procurement patterns of =
importers, and=20
not least, to obtain essential information about the procurement =
structures of=20
sensitive countries. - List of War Weapons Where necessary, these national lists are adapted to the =
international=20
control lists, particularly of the Wassenaar Arrangement. For exports of conventional military equipment (war weapons and other =
military equipment), there is an erga omnes licensing =
requirement. ln order to export war weapons or other military equipment, an =
end-user=20
document must normally be submitted along with the application. In the =
case of=20
end-user documents, a distinction is chiefly made between official =
end-user=20
declarations (exhibitor, government or authority of the country of =
destination),=20
private end-user declarations (exhibitor, company or private =
individual), and=20
International Import Certificates (IICs). Details regarding the various =
types of=20
end-user document can be found in the notification by the Federal Export =
Office=20
dated December 9, 1997. The legal definition of transit contained in the Foreign Trade and =
Payments=20
Act is only fulfilled if the equipment is merely transported through =
German=20
territory. "Transport" includes such reloading as is necessary for =
technical=20
transport-related reasons and - generally short - periods of storage; =
however,=20
this does not apply to storage in a customs warehouse or storage in a =
free zone.=20
Where weapons subject to the War Weapons Control Act and their =
ammunition are=20
transported through Germany (including any interim storage), a licence =
under the=20
War Weapons Control Act is normally necessary; it should usually be =
applied for=20
from the Federal Ministry of Economics. When deciding whether to issue a =
licence=20
for the transit of war weapons, the Federal Government is guided by its =
policy=20
on exports. For certain transports of war weapons via the public rail =
system and=20
maritime vessels, a general licence has been issued. Other military equipment (i.e. conventional military equipment which =
is not=20
war weapons) is subject to licensing requirements only for exports, and =
not for=20
transit. For the transit - including reloading - of firearms subject to the =
Weapons=20
Act (e.g. hunting and sports weapons, pistols and revolvers) and their=20
ammunition through Germany under the supervision of the customs =
authorities, no=20
special licence is required under weapons law. The same applies to their =
storage=20
in customs warehouses, double-locked customs warehouses or free zones; =
see=20
section 27(2)(1) of the Weapons Act). Apart from the special licensing requirements applying to all =
handling of war=20
weapons (cf. answer [2] to question 2 supra), Germany has no special =
licensing=20
system for firms wishing to export military equipment. When an =
application is=20
submitted, an examination takes place incidentally to ascertain whether =
the firm=20
is reliable and has taken the necessary security measures to handle =
military=20
equipment. There is no special licensing requirement for entering into contract=20
negotiations and/or the conclusion of contracts. Instead, a licence =
needs to be=20
issued before the military equipment in question is actually exported =
(in the=20
case of war weapons, a licence is required prior to that, for the =
manufacture=20
and/or the acquisition of actual control over the war weapon to be =
exported).=20
A special licence is required for deals by intermediaries regarding =
the=20
procurement of war weapons which are located abroad and are to be =
delivered to=20
the foreign customer without encountering German territory. Export licences can only be revoked under certain narrow legal =
preconditions;=20
these cases occur very rarely in practice. There is thus no specific =
policy.=20
Violations of foreign trade and payments provisions are punishable by =
long=20
terms of imprisonment if they: Apart from this, violations can be punished by fines of up to DEM 1 =
million.=20
In certain cases, the export of military equipment does not require =
an=20
individual licence. These exemptions are listed in section 19 of the =
Foreign=20
Trade and Payments Ordinance. Licences for temporary export (e.g. for trade fairs or =
demonstrations) are=20
issued under the condition that the equipment is returned to Germany =
before the=20
licence expires. If this deadline is not adhered to, a corresponding =
application=20
for an extension must be submitted in sufficient time. The return of the equipment must be confirmed by the relevant customs =
office=20
on the back of the licence. On application, licences can be issued for several temporary exports, =
on=20
condition that the equipment in question is returned to Germany each =
time. This licence normally has a term of one year. The text of the conditions is as follows:
In accordance with section 30(1) of the Foreign Trade and =
Payments Act,=20
the export licence is issued under the condition that the =
equipment is=20
returned to the Federal Republic of Germany after its temporary =
use abroad=20
and before the expiry of the licence. This export licence also entitles the holder to the repeated =
export of=20
the equipment listed in field no. 4 of the licence within the =
period of=20
validity of the licence. In this regard, the exporter shall have =
each=20
export and import confirmed on the back of the export licence and =
the copy=20
of the export licence by the relevant customs office and shall =
send the=20
licence back to the Federal Export Office for inspection within =
one month=20
of the last return of the equipment. The exporter shall receive =
the=20
document back. It is expressly noted that the issue of this licence is without =
prejudice to subsequent applications for export licences of any =
type. The same applies to any applications for licences for the final =
export=20
of the equipment covered by this licence. The return of the equipment must therefore always occur before =
the=20
expiry of this licence, irrespectve of whether an application for =
licence=20
for final export has since been =
submitted.FR Germany: Response to the Questionnaire on =
OSCE=20
Participating States Policy and/or National Practices and Procedures for =
the=20
Export of Conventional Arms and Related Technology,
17 June 1999Question 1: Basic principles, policies and =
national=20
practices on the export of conventional arms and related technology
(back=20
to index)Question 2: National legislation governing =
the=20
export of conventional arms and related technology
(back=20
to index)Question 3: International agreements or =
guidelines,=20
other than OSCE commitments, covering the export of conventional arms to =
which=20
they are a party
(back=20
to index)Question 4: Procedures for processing an =
application=20
to export conventional arms and related technology
- =
conducting=20
examinations of the exporting companies via the regional finance =
offices
-=20
investigations (preliminary investigations and formal investigatory =
procedures)=20
by the customs investigation service
(back=20
to index)Question 5: List of conventional weaponry =
under=20
national export controls and the basis for their control
- Part I section A of the Export List
(back=20
to index)Question 6: Principles and national =
regulations on=20
the destination or end-user of the equipment. Is there a complete erga =
omnes=20
system or a published list of:
- embargoed countries?
-=20
differentiation between destinations (e.g., is there any preferential=20
treatment of [groups of] countries)?
(back=20
to index)Question 7: Requirements for the provision =
of an=20
end-user certificate in an export Iicence application, or of =
non-reexportation=20
clauses, or of any other type of certification before and after delivery =
for=20
conventional arms export contracts
(back=20
to index)Question 8: National definition of transit =
and=20
transshipment (including free zones) of conventional arms, together with =
associated national legislation and compliance procedures
(back=20
to index)Question 9: The procedures governing =
companies=20
wishing to export arms. Are companies obliged to seek official =
government=20
authority to enter into contract negotiations or to sign contracts with =
foreign=20
customers?
(back=20
to index)Question 10: Policy on the revocation of =
export=20
licences once they have been approved
(back=20
to index)Question 11: Penal and administrative =
implications=20
for any exporter failing to comply with national controls.
(back=20
to index)Question 12: Any circumstances in which =
the export=20
of arms does not require an export licence.
(back=20
to index)Question 13: Licences for temporary =
export (e.g.,=20
demonstrations or testing), the period allowed and any special =
conditions=20
attached to the licence, including verification of return =
procedures.
Subsidiary clause for repeated temporary export=20
Subsidiary clause for single temporary export=20
In accordance with secton 30(1) of the Foreign Trade and = Payments Act,=20 the export licence is issued under the condition that the = equipment is=20 returned to the Federal Republic of Germany after its temporary = use abroad=20 and before the expiry of the licence. The exporter shall have the return of the licence confirmed by = the=20 relevant customs office and shall send the document back to the = Federal=20 Export Office for inspection within one month of the last return = of the=20 equipment. The exporter shall receive the document back. It is expressly noted that the issue of this licence is without = prejudice to subsequent applications for export licences of any = type. The same applies to any applications for licences for the final = export=20 of the equipment covered by this licence. The return of the equipment must therefore always occur before = the=20 expiry of this licence, irrespectve of whether an application for = a=20 licence for final export has since been=20 submitted. |
Note: These documents will be made available in picture format =
shortly.=20
(back=20
to index)
German law on foreign trade and payments defines:
(1) Individual licences/licences up to a maximum amount
The basic form of the export/shipment licence is the individual = licence. It=20 authorises the export of one or several pieces of equipment to one = recipient=20 upon application. As a special type of individual licence, a "licence up = to a=20 maximum amount" can be issued. This licence permits the export of = equipment for=20 several contracts, e.g. in the context of a framework contract with a = customer,=20 up to the maximum amount authorised (likely sales in one year).
(2) Collective export licences
Rather than applying for individual licences, it is possible to issue = a=20 collective licence to certain exporters. This licence permits the export = of a=20 group of equipment to several recipients.
(3) General licences
There is no need to apply for an individual licence if a General = Licence can=20 be used for the export. The General Licences issued by the Federal = Export Office=20 are published in the Federal Gazette and do not need to be applied for = by the=20 exporter/shipper.
In detail, the following General Licences are valid:
No. 9 for graphites
No. 10 for computers and related =
equipment
No. 11=20
for certain dual-use goods
No. 12 for dual-use goods valued at less =
than DEM=20
5000
No. 13 for exemptions for certain cases/parallels with section =
19 of the=20
Foreign Trade and Payments Ordinance
No. 14 for certain equipment =
exported=20
pursuant to section 5c of the Foreign Trade and Payments Ordinance =
No. 15=20
for certain equipment exported pursuant to section 5d of the Foreign =
Trade and=20
Payments Ordinance
No. 16 for telecommunications
No. 17 for =
insignificant=20
parts of firearms
No. 18 for signature-reducing clothing and =
equipment (back=20
to index)
In addition to the application procedure, there is the institution of = the=20 preliminary inquiry, in which the licensability of a planned procedure = is=20 examined in political terms. If a positive decision is reached, the = company=20 inquiring will have the necessary certainty that, if the legal and = political=20 situation does not change, it can expect the necessary export licence to = be=20 issued.
Frequent use is made of the institution of the preliminary inquiry in =
cases=20
of projects of commercial or political significance or where the =
licensing=20
situation is unclear.
(back=20
to index)
In 1997 14,432 applications for export licences for conventional = military=20 equipment were processed. In 1997 roughly 80 people were engaged in = processing=20 applications for export licences at the Federal Export Office and in the = ministries.
In 1998 11,497 applications for export licences for conventional =
military=20
equipment were processed. Roughly 80 people were engaged in processing=20
applications for export licences at the Federal Export Office and in the =
ministries.
(back=20
to index)
None. (back=20 to index)
The "Political Principles Governing the Export of War Weapons and = Other=20 Military Equipment" of April 28 1982 (as amended May 21, 1999) were = originally=20 published in the bulletin of the Federal Government dated May 15, 1982 = (No.=20 1982:38, pp. 309-311); in the amended version, they are even available = on the=20 internet at:
http://www.auswertiges-amt.de/1_fremsp/english/111x.html
These principles form the basis on which the Federal Government = exerts its=20 political discretion regarding individual cases; in other words, the=20 existence/absence of these criteria decides whether an export licence = can be=20 issued in an individual case or not.
In addition, decisions on principles are issued by the Federal =
Security=20
Council, but these are not generally published.
(back=20
to index)