First Administrative Challenge at the Council of State against the Walloon Government

The basis of the claimants’ argument was that the licensed arms risked being directly used to commit human rights and IHL violations, both in the armed conflict in Yemen and in light of the failure of Saudi Arabia to preserve regional peace, security and stability or to effectively combat terrorism.

The submitted arguments proceeded on three grounds. 

1. The granting of licences did not follow the prescribed procedure set out in the governing legislation. Article 14, 19 Walloon Decree
2. The authorities had failed to formally justify their licensing decision and provide any information on their assessment of Saudi Arabia’s human rights record, its capacity to effectively combat terrorism or its alleged involvement in serious IHL violations in Yemen.
3. The government had violated key principles enshrined in law, including due diligence obligations, by issuing a licence in contravention of criteria 2, 4 and 6 of the EU Common Position because of the clear risk that the arms exported to Saudi Arabia might be used for human rights and IHL violations.

While the first two arguments were refused by the courts at first instance, the court accepted the claim’s third ground and called for the suspension of six export licences and annulment of eight more.

The crux of the court’s reasoning was that the Advisory Committee had failed to take into account Saudi Arabia’s past practices concerning its international commitments to the non-use of force and to respect IHRL and IHL, with particular reference to criterion 6 of the EU Common Position.