A Clear Risk of What? The Egyptian Navy, the Dutch Arms Export Policy and Linguistic Inconsistencies in the EU Common Position

This blog post reflects on the inconsistencies in the interpretation of the Common Position by English and Dutch Courts, namely the notion of clear risk. With respect to the third challenge, it provides an overview of the claimants’ submission and critically analyses the key conclusions of the District Court in November 2021.

It highlights that although the judge recognised the extent of human rights violations in Egypt, the fact that this didn’t lead to the conclusion that the licences should not have been granted comes down to the interpretation of risk under Criteria 2(a) and 2(c) of the EU Common Position. It compares the text of the English and Dutch language version of the Common Position and draws attention to the fact that the English text requires a clear risk that the goods might be used for internal repression or in violation of IHL, whereas the Dutch text requires a clear risk that the goods will be used in such a manner, which is a much higher threshold.