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Spanish Arms and Yemen

Jurisdiction

Spain

Locale

Armed Conflict in Yemen

Recipient State

Saudi Arabia, United Arab Emirates

Status

Ongoing

Litigation against Yemen-linked arms transfers first entered the Spanish courts in 2020. Two simultaneous claims, submitted by claimant NGOs before Administrative Courts, challenged the refusal by the competent licensing authority to provide access to information regarding licences that were issued for the export of arms to coalition members involved in the armed conflict in Yemen.

The first challenge, initiated in late 2020, has the potential to go before the European Court of Human Rights. This challenge specifically considered whether the right to freedom of expression, which is both protected under the ECHR and recognised in Spanish law, also provided for a right of access to licensing information that has until now been treated as fully classified under the applicable domestic law.

The High Court dismissed both claims. On appeal, the Supreme Court upheld the High Court’s decisions on both challenges. 

Latest developments

Case Analysis

Proceedings in Spain did not substantively consider the merits and legality of national licensing decisions under domestic and international law. Instead, the claimants sought to challenge the opacity of decision-making processes that limit the ability for NGOs to monitor the government’s compliance with its domestic and international legal obligations, and ultimately bar access to courts and possible remedies for those affected by illegal arms transfers. They did so by launching two simultaneous cases: one under a special procedure that argued a violation of the claimant’s fundamental rights; and the other following an ordinary contentious administrative procedure based on the domestic rules governing access to information.

This has proven a highly contentious issue as the classified nature of licensing decisions is enshrined in long-standing Spanish legislation, namely the still valid pre-constitutional Official Secrets Act. Highly politicised and potentially extremely far-reaching in effect, these cases proved difficult to win.

Right of access to information

A key success was the declaration by the Spanish administrative court that the special procedure challenge was admissible, in particular its initial conclusion that the right to freedom of information is a fundamental right that must be protected in Spain. This finding could implicitly entail a recognition that the right to freedom of information also includes a right of access to information, which could make previously completely confidential licensing information available for future scrutiny by the general public. In turn, access to this information could form the basis of future administrative challenges against the merits and legality of licensing decisions by the State.

Supreme Court admission

Despite the recognition of the claim’s admissibility, the special procedure case was unsuccessful when heard by the High Court. The ordinary procedure case was also dismissed, with the High Court upholding the classified nature of the requested information. In July 2022, the Supreme Court admitted the Notice of Appeal in Cassation by Greenpeace for both challenges.  This was a crucial and hopeful development as the Supreme Court only admits around 8% of cases that are submitted.

However, the Supreme Court upheld the High Court’s decision on both challenges.

The competence to grant licences for the export of arms and military equipment in Spain is vested in the Ministry of Industry, Commerce and Tourism who acts based on the opinions of an inter-ministerial body known as the JIMDDU. All decisions are subject to governmental authorisation. Law 53/2007, Articles 4, 6 and 11

Legal challenges in Spain have sought to challenge the licensing decisions of the Minister of Industry, Commerce and Tourism in administrative proceedings pursuant to the governing legislation, which provides for the possibility to bring claims under a special procedure when the protection of fundamental rights are at risk. Law 29/1998, Articles 43-77 and 114-122

Spanish legislation explicitly provides that licences should not be granted if they would be in contravention of the ATT or the EU Common Position. Royal Decree 679/2014

Of particular relevance to this context, Spanish legislation specifies the scope of a right to access government information, specifically what constitutes classified information pertaining to arms export licensing. Law 19/2013 and Law 9/1968

For a more detailed overview of the Spanish framework, see (in Spanish) here 

Two claims were brought by the Spanish branch of NGO Greenpeace. The claimants were represented by lawyer Laura Díaz Román.

To get in touch with the claimants and their legal representatives, please see here

Themes

i

This formed the main focus of legal challenges in Spain as the claimants sought to gain access to licensing-related documents, which are currently covered by state secrecy.

Read more about the lack of transparency in other jurisdictions

Spanish courts have not granted remedy as all cases have been unsuccessful.

Read more about whether claimants have been granted remedy in other jurisdictions

This issue has not arisen in proceedings.

Claimants sought to access information on licencing decisions by claiming a right of access to information as a fundamental freedom that is argued as protected by the Spanish Constitution and the European Convention on Human Rights. In the ‘Special Procedure’ challenge, the Supreme Court held that the claimant had not demonstrated sufficient public interest to warrant declassifying the licences, and in the ‘Ordinary Procedure’ challenge, it held that making information on arms exports to Saudi Arabia and the UAE public would threaten national and defence security.

Read more about the issue of justiciability in other jurisdictions

Cases

Two simultaneous claims have been brought in the Spanish courts and are both pending on appeal with a hearing date at the Supreme Court awaited. Click ‘explore case’ to find out about each case in more detail and access all case documents.

Case status

Closed

Complaint Against the Minister of Industry, Commerce and Tourism Through a ‘Special Procedure for the Protection of Fundamental Rights’

Explore case

This case challenged the government’s refusal to provide access to documentation on the export of arms to Saudi Arabia from 2016-2020 on the basis that this was a disproportionate interference with a fundamental right. This was dismissed by the High Court who argued that the right to access information is an ‘ordinary’ right that can be limited on national security and economic grounds as met in this case. The Supreme Court upheld the High Court’s decision.

Closed

Complaint Against the Minister of Industry, Commerce and Tourism Through an ‘Ordinary Administrative Procedure’

Explore case

This case sought to access documentation on licences for the export of military goods to the UAE and Saudi Arabia from 2017–2020 under an ‘ordinary’ administrative procedure. The claimants argued the government had acted in violation of Spanish rules on transparency. The High Court dismissed this, upholding the classified nature of the requested information. The Supreme Court upheld the High Court’s ruling on appeal.

Timeline

FILTERS

17 Jul 2023

Challenge 2

The Supreme Court ruled against the plaintiffs on appeal, concluding that data on arms exports to Saudi Arabia and the UAE public would threaten national and defence security.

Read the article in full

07 Feb 2023

Challenge 1

Supreme Court upholds High Court's ruling, arguing that the right to access license details was “subjective,” and that Greenpeace had failed to prove that fundamental human rights would be harmed as a result of the ministry withholding the information.

Read the article in full

04 Oct 2022

Challenge 1

The state attorney replies to the appeal submitted by Greenpeace upholding the arguments of the government at first instance.

Read the state attorney's reply

06 Jul 2022

Challenge 1

The claimants file their appeal at the Supreme Court responding to the key points in the court's order of admission.

Read the appeal here

21 Jun 2022

Challenge 2

The claimants file their appeal at the Supreme Court responding to the key points in the court's order of admission.

Read the appeal here

11 May 2022

Challenge 1

The Supreme Court admits the appeal for processing.

Read the Supreme Court's Order of Admission here

04 May 2022

Challenge 2

The Supreme Court admits the appeal for processing.

Read the admission here

29 Dec 2021

Challenge 2

Greenpeace seeks to appeal to the Supreme Court.

Read the notice of appeal here

05 Nov 2021

Challenge 1

Greenpeace seeks to appeal to the Supreme Court.

Read the notice of appeal here

30 Sep 2021

Challenge 2

Court Judgment. Case Dismissed.

Read the judgement here

15 Sep 2021

Challenge 1

Judgement issued by the High Court of Justice of Madrid. Case Dismissed.

Read the judgement here

02 Jul 2021

Challenge 1

The Court rejects the amplification of the facts on the grounds that they “do not relate to the subject matter of the lawsuit”.

Read the judgement here

18 May 2021

Challenge 1

Greenpeace submits further facts to expand on the initial complaint filed before the High Court of Madrid.

Read the expansion of the facts here

02 Feb 2021

Challenge 1

Government response. Minister contests all grounds and argues that the contested information is classified, and that the claimants cannot rely on the right of access to information as a fundamental right.

Read the government's response to litigation here

27 Nov 2020

Challenge 2

Case enters the courts. Claim submitted through an ‘ordinary administrative procedure’ at the Administrative Court challenging the refusal to disclosure information.

Read the claimant's submission here

26 Nov 2020

Challenge 1

Admissibility judgement issued. The High Court of Justice of Madrid finds that the claim is admissible and grants a hearing to assess the merits of the claim.

Read the judgement here

15 Nov 2020

Challenge 1

Case enters the courts. Claim submitted to the High Court of Justice of Madrid challenging the decision not to disclose requested information.

Read the claimant's submission here

15 Sep 2020

Challenge 1

Formal request to government is unsuccessful on the basis of the requested information’s classified status under Spanish law.

Read the government's response to the request for information here

20 Aug 2020

Challenge 1

Greenpeace requests a copy of administrative files on specified licences for the export of arms to Saudi Arabia, including copies of the licences, the minutes of the meeting where this licensing decision was made, and the formal justification for the decision to issue these licences.

Read the request to the Secretary of State here

10 Mar 2020

Challenge 2

Ministry of Industry, Commerce and Tourism denies access to requested documentation.

Read the response here

09 Mar 2020

Challenge 2

Greenpeace Spain requests information from the Minister of Industry, Commerce and Tourism regarding the granting of licences for the ‘export of artillery ammunition manufactured by Expal Systems to the UAE and/or Saudi Arabia from 2017 – 2020’.

Read the request here

Analysis

17 July 2023

The Supreme Court concludes that making public data on the export of weapons to Saudi Arabia and the Emirates would threaten "national security"

Roberto Becares and Tone Calleja Flórez | El Periódico de España

In the complaint against the Minister of Industry, Commerce and Tourism through an ‘ordinary administrative procedure’ in Spain, the Supreme Court ruled against the plaintiffs, concluding that data on arms exports to Saudi Arabia and the UAE public would threaten national and defence security.

13 February 2023

Greenpeace to appeal Spain-Saudi arms deal confidentiality

Associated Press

Spanish Supreme Court dismisses appeal filed on Complaint Against the Minister of Industry, Commerce and Tourism Through a ‘Special Procedure for the Protection of Fundamental Rights’.

24 February 2021

La Abogacía del Estado avisa a los jueces que revelar datos sobre la venta de armas a Arabia Saudí provocará un “conflicto”

Danilo Albin | Público

This article (in Spanish) covers the response by the State Attorney’s office to the case initiated by Greenpeace Spain in late 2020.

13 October 2020

El TSJ de Madrid admite a trámite un recurso para pedir mayor transparencia en las exportaciones de armas

Pol Pareja | El Diario

This article (in Spanish) covers the case submitted to the High Court of Justice of Madrid following the Spanish government’s refusal to respond to requests for information concerning the export of arms to Saudi Arabia on the basis of the Law of Official Secrets.

Contact & More Information

If you would like to know more about this case, please get in touch with our primary contact Lorena Ruiz-Huerta at Greenpeace Spain by email. The claimant’s external legal representative can be contacted by email here.

Find out more about the work of the claimants at their website:

Greenpeace Spain