The traffic light arms deliveries to Ukraine lead to a major legal dilemma. What many do not suspect: the arms industry will now win any lawsuit against a restriction on arms exports in court, analyzes law professor Viktor Winkler.
The arms deliveries are a “break with decades of state practice” in Germany, Chancellor Scholz said last week in the Bundestag. And everyone listened. The Chancellor is right. But it is not just a breach of state practice. It is also a break with administrative practice.
This is what lawyers call it when the state does not have to observe any mandatory requirements in one direction or the other, but at least has to adhere to its own practice, its own interpretation and application of a power granted in individual cases. The fact that the state has to do this is due to the Basic Law. principle of equality.
From it follows: If you, state, have decided in one direction for a while, you are no longer completely free. In principle, you must not decide in the other direction just because it suddenly suits you politically. This is called self-commitment of the administration.
In the armaments sector, state practice was always clear: no exports to war zones, exports to crisis areas only within very, very narrow limits – in other words, not really and practically either. Now the turn. The turning point.
It creates a major legal dilemma. Due to the administrative practice regarding Ukraine, the armaments industry will win any lawsuit in court against a restriction of arms exports to areas of crisis, tension and war. And the traffic light arms export control law planned for this year will become even more constitutionally problematic due to this radical change in administrative and state practice (keyword: constitutionally protected export freedom).
Of course, the traffic light can still “prevent” an unwanted export by simply not approving it. However, the exporter can sue. And that is exactly the sticking point: that the traffic light has ruined the arms export control law so much that every exporter would win in court.
The traffic light will not kindly throw itself into the sword and now simply give voluntarily permits because of the self-commitment mentioned. But any refusal of approval in war zones and especially in crisis areas and especially in indirect constellations (keyword Yemen!) has become practically impossible from a legal perspective.
Is the defense industry on the cue button today to go to court tomorrow? no Is the alleged love affair between the armaments industry and traffic lights only alleged and on the verge of ending in a speedy divorce?
I think so. And then there will be lawsuits very quickly – at least if the Arms Export Control Act is also passed. The project, which was essentially developed by Katja Keul from the Foreign Office, wants to go behind Ukraine – that means: Deliveries, especially to third countries, are to be restricted far more drastically than before Putin’s war of aggression. The confrontation is planned. Also with the apparently “milder” Habeck Ministry, which wants to take away the responsibility for arms export controls in the Foreign Office. One hears from the Foreign Office that this confrontation is expected. Even those with the defense industry.
Prof. Dr. Viktor Winkler was the global Head of Global Standards Sanctions at Commerzbank and, as a sanctions expert, most recently spoke before the Finance Committee of the German Bundestag. His law firm in Frankfurt am Main, which specializes in legal crisis management, is currently advising numerous managing directors and board members on the Russia sanctions.