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Many EU Member States have defence industries. They form a substantial part of a world market in which in 2010 defence producers sold goods and services for US$411.1 billion. However, while the sale of almost any other product benefited from the regulatory framework of the Internal Market, the national security implications of trade in armaments led to a number of derogations in the Treaties which prevented an Internal Market for defence goods until recently. The first defence-specific EU instruments only entered into force in 2009: the 'Commission's defence package', consisting of three elements: the Defence and Security Procurement Directive 2009/81/EC, the Intra-Community Transfers Directive 2009/43/EU ("ICT Directive"), and a Communication on EU Defence. Intra-Community transfers can be conceptualised as the transmission or movement of defence products from a supplier in one Member State to a recipient in another Member State. Member States have adopted laws, regulations, administrative provisions and policies concerning such transfers. These include detailed authorisation and licensing requirements. Whilst a predominant concern is to prevent re-export of defence material to certain third countries, intra-Community transfers have been subject to measures similar to those regulating exports to countries outside the EU. More generally, such measures may contain disparities which restrict free movement and have the practical consequence of incurring significant delays and cost, thereby constituting a barrier to trade within the Internal Market. The ICT Directive institutes a harmonised licensing and certification regime in pursuit of this simplification objective. The ICT Directive has not been the subject of detailed legal analysis. This paper thus aims to fill this gap by offering a first legal analysis of the ICT Directive with a view to facilitate a better understanding of the discrete and relative functions and thus contribution of this instrument to an emerging EU defence trade regulatory framework.
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