Towards a Licence-Free Europe? Impact and Reform of the EU Directive on Intra-Community Transfers of Defence-Related Products

Abstract

Member State recourse to security derogations has restricted the free movement of defence goods within the Internal Market. Generalised security concerns have also meant that Member States have applied variable national laws and policies on the transfer of defence goods between Member States within the EU on terms equivalent to exports to third countries outside the EU. Consequently, significant costs and delays have been incurred through bureaucratic and restrictive licensing requirements. As part of the EU “Defence Package”, the Intra-Community Transfers Directive 2009/43/EU (“ICT Directive”) was adopted in 2009 introducing a harmonised transfer licensing and certification regime. The ICT Directive will soon be revised but has not yet been the subject of detailed legal analysis. Based on currently available data, this article investigates the ICT Directive’s impact with a view to reform. It will be argued, inter alia, that due to insufficient harmonisation, national laws and practices have not changed significantly in form and effect as a result of the ICT Directive’s implementation as an export control mentality continues to dictate. Adjustments are necessary to meet the ICT Directive’s objectives.