Explanatory Memorandum to COM(2010)273 - Implementation of Article 10 of the UN’ Firearms Protocol and establishing export authorisation, import and transit measures for firearms, their parts and components and ammunition SEC(2010)663 SEC(2010)662 - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)273 - Implementation of Article 10 of the UN’ Firearms Protocol and establishing export authorisation, import and transit measures ... |
|---|---|
| source | COM(2010)273  |
| date | 31-05-2010 |
- Grounds for and objectives of the proposal
Specifically, Union action is needed to complete the process of transposition into Union (formerly Community i) legislation of the provisions of the ‘ Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition i , supplementing the United Nations Convention against Transnational Organised Crime’ , hereinafter referred to as the ‘UN Firearms Protocol’ or ‘UNFP’.
In its Communication of 18 July 2005 on measures to ensure greater security in explosives, detonators, bomb-making equipment and firearms i, the Commission made clear the need and intention to implement Article 10 of the UNFP as part of the overall transposition work i that would allow the Commission to meet its obligation to make a proposal for conclusion of the UNFP on behalf of the Union, which represents one of the principal aims of the Commission’s current policy on firearms.
The present legislative proposal is aimed at finalising that work, by transposing the relevant provisions of Article 10 UNFP on ‘ General requirements for export, import and transit licensing or authorization systems’.
- General context
As authorised by the Council, the Commission negotiated on behalf of the European Community the articles of the UNFP falling within Community competence and eventually signed it on 16 January 2002 on behalf of the European Community i.
The Council and Commission Action Plan implementing the Hague Programme on strengthening freedom, security and justice in the European Union i listed among its relevant actions a proposal on the conclusion — on behalf of the European Community — of the UN Firearms Protocol. The successor Stockholm Programme for ‘ an open and secure Europe, serving and protecting citizens’ i highlights trafficking in arms as one of the illegal activities that continue to challenge the internal security of the EU and reaffirms that the Union should continue to promote ratification of international Conventions (and their Protocols), in particular those developed under the auspices of the United Nations.
Article 207 of the Treaty on the Functioning of the European Union (TFEU) i provides the legal basis for the envisaged proposal. (common commercial policy, an exclusive competence of the Union according to Article 3 TFEU, within which Article 10 UNFP provisions fall). The proposal applies only to firearms, their parts and essential components and ammunition for civilian use and not to firearms that are intended specifically for military purposes. Pursuant to Article 207 of the Treaty on the Functioning of the European Union, the common commercial policy should be based on uniform principles, inter alia as regards exports. Common rules should therefore be established for exports from the Union.
This proposal only addresses trade in/transfers of firearms to third countries and consequently does not concern intra-Community transfers of firearms, their parts and essential components and ammunition.
- Existing provisions in the area of the proposal
There are no existing EU provisions in the area of the proposal (common commercial policy).[9]
- Consistency with the other policies and objectives of the Union
Conclusion of the UNFP by the European Union is still pending and represents an international commitment for the EU. The action ties in with the current EU policies on measures to counter transnational crimes, stepping up the fight against illicit trafficking in firearms — including export control and tracing — and on measures aimed at reducing the proliferation and spread of small arms around the world.
- Consultation of interested parties
Consultation methods, main sectors targeted and general profile of respondents
The stakeholders were consulted by means of questionnaires and invitations to meetings addressed to Member States and interested private parties (representatives of European associations of manufacturers of firearms and ammunition for civilian use, those engaged in civil commerce of weapons, hunters, collectors, NGOs, research institutions, etc.), the opening of a specific e-mail account (JLS-FIREARMS@ec.europa.eu) for permanent consultation and an external study to support the preparation of the Impact Assessment. Moreover, an ‘Inter-Service group’ was established within the Commission.
Member States and NGOs agreed that implementing Article 10 would be useful for preventing diversion of firearms from the legal market to the illegal market. The private parties argued that Member States already had strict regulations covering this aspect and were concerned about possible negative consequences for small and medium-sized enterprises. Many private stakeholders were concerned in particular that the transit measures and the possible non-cooperation of a transit State could delay all procedures. All private stakeholders were of the opinion that simplified procedures should be used for temporary export or import of firearms. There was no consensus on the activities to which the simplified procedures should apply. According to some of the Member States and NGOs, simplified procedures should be limited to hunters and sport shooters only (while the UNFP includes consideration also for other activities such as exhibitions or repairs). Authorizations for multiple shipments and maximum duration for processing requests for licences were seen as an advantage by private parties and NGOs.
The Commission has considered the opinions expressed by public and private stakeholders. This proposal is designed to bring about a higher degree of security/effectiveness and efficiency. The combination of the two aspects is also based on the outcomes of the stakeholders’ consultation.
- Collection and use of expertise
Scientific/expertise domains concerned
Article 10 of the UN Firearms Protocol is part of an international instrument whose provisions were previously approved by the Community at the time of the negotiations and at a later stage by means of signature of the Protocol.
Questionnaire to Member States and private stakeholders and NGOs, two separate meetings with representatives of Member States and private stakeholders, questionnaires in connection with an external study, opening of a specific e-mail account (JLS-FIREARMS@ec.europa.eu) for permanent consultation.
The questionnaire and invitations to meetings were sent to the relevant national authorities, representatives of European associations of manufacturers of firearms and ammunitions for civilian use, those engaged in civil commerce of weapons, hunters, collectors, NGOs, research institutions and other European Associations (Chambers of Commerce; Industries; Craft, Small and Medium- sized Enterprises).
Besides what reported under ‘Summary of responses and how they have been taken into account’ , it is appropriate to further specify here the following.
One solution advocated during the consultation was to use tacit consent for the transit measures, which private stakeholders were in favour of while some Member States and NGOs were not.
There was in essence unanimity on the fact that the burden to acquire the required information (import authorisation and notice of no objection to transit) should be on the private parties.
The possibility of hunters/sport shooters using the European Firearms Pass and an official invitation to an event outside the EU was also suggested.
This proposal in particular takes into account the need for simplified measures for temporary export, mitigation of the possible negative impact of the transit measures required by the UN Firearms Protocol by making in particular use of tacit consent under certain conditions, the use of multiple authorisations for multiple shipments and the maximum duration of the process for issuing the authorisation. At the same time this proposal takes into account the existing practices of the Member States.
Impact Assessment accompanying this proposal.
- Impact Assessment
The Impact Assessment accompanying this proposal developed four policy options.
Policy option 1 was to refrain from taking EU action. This was identified as a theoretical option due both to the legal international obligation entered into by the Community (now Union) by means of signature of the Protocol and to the lack of uniform principles in a matter falling under the common commercial policy, an exclusive competence of the Union.
The other three policy options were selected according to their focus on security or efficiency, where efficiency means the extent to which objectives can be achieved for a given level of resources or at the least possible cost. In this case, efficiency refers to keeping the burden to a minimum for private parties and national administrations.
Policy option 2 aimed at optimal achievement of the objective of contributing to the improvement of security with regard to export, import and transit of firearms for civilian use and prevention of possible diversion from the legal market.
Policy option 3 aimed to achieve efficient implementation of Article 10 of the UNFP for private parties.
Policy option 4 focused on efficiency for national administrations.
Option 3 was the preferred one and is reflected in this proposal. It fulfils the objectives of implementing Article 10 UNFP in the most comprehensive manner and is the best way forward by combining the ‘shall’ (i.e. mandatory) provisions — adapted to the type of products (for civilian use) — with the ‘may’ (i.e. optional) ones, which would match stakeholders’ legitimate expectations.
It combines different aspects of the various policy options on the basis of the main advantages and disadvantages identified for each one of them, in order to achieve a higher degree of both effectiveness and efficiency. This combination of effectiveness/security and efficiency appears to offer the highest potential for significant benefits for the interest groups involved and is — among other things — based on the outcomes of the stakeholders’ consultation.
The envisaged simplified procedure for temporary exports for ‘verifiable lawful purposes’ and in particular the proposed transit measures will reduce the possible administrative burdens for those lawful purposes listed by the UNFP itself.
With regard to the specific issue of the proposed tacit consent, it was structured with the aim of balancing the interest in speeding up the process (business) with that of ensuring a feasible deadline for allowing the transit State to react (security).
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- RESULTS OF CONSULTATION WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENT
- Summary of responses and how they have been taken into account
- Methodology used
- Main organisations/experts consulted
- Summary of advice received and used
- Means used to make the expert advice publicly available
- OPTIONAL ELEMENTS
- Summary of the proposed action
Article 10 of the UNFP on ‘ General requirements for export, import and transit licensing or authorisation systems’ requires ‘ each State Party to establish or maintain an effective system of export and import licensing or authorisation, as well as of measures on international transit, for the transfer of firearms, their parts and components and ammunition’ , thereby improving scrutiny of transfers and allowing better enforcement of laws.
Article 10 UNFP is based on the principle that firearms and related items should not be transferred between States without the awareness and consent of all States involved. Firearms should not be exported to or through countries that have not authorised the transfer. The content of the documents used for legal export and import should be sufficient to ensure tracing. Besides the above-mentioned ‘Shall’ provisions, Article 10 UNFP also allows the Parties to adopt simplified procedures for temporary export, import and transit of small numbers of firearms for ‘ verifiable lawful purposes’ , such as recreational, repair, exhibition. The latter are referred to as ‘May’ provisions.
Chapter I of this proposal addresses ‘Subject, Definition and Scope’. Definitions (Article 2) take into account — where appropriate — the parallel provisions of the UN Firearms Protocol, but are tailored to or directly invoke other existing EU legislation, for the sake of clarity: for example, the definitions of firearms, parts and essential components and ammunition mirror those of Directive 91/477 or direct reference is made to the Community Customs Code. Article 3 lists the specific exceptions to which the Regulation does not apply.
Chapter II deals with ‘export authorisation, procedures and controls’. The relevant articles transpose the concepts mandatorily established by Article 10 UNFP. Article 4 establishes the general obligation for requiring export authorisation, refers to the list of products to which the proposal applies (in Annex to the proposal) and provides for updates. Articles 5 and 6 on the conditions for issuing the export authorisation also include some of the mitigation measures resulting from the advice received from stakeholders during the consultation, for example: maximum processing period, possible use of electronic documents and tacit consent for transit. Articles 11 and 12 address respectively the correspondent provisions of Article 10 i and i UNFP on verification of the authorisation procedure. Article 7 concerns simplified procedures for verifiable lawful purposes for temporary exports, implementing the non-binding provision of Article 10 i UNFP. This chapter also includes provisions on general criteria to be taken into account by Member States when assessing a request for export authorisation (Articles 8 and 9) and on powers of national competent authorities (Article 13), which are similar to those laid down in other commercial policy legislation, namely the ‘Dual Use’ Regulation i. Article 10 focuses on the need for record-keeping. Article 14 reproduces a standard formula on penalties.
Chapter III, on ‘customs procedures’ (Articles 15 and 16), and Chapter IV on ‘administrative cooperation’ (Article 17), include standard provisions commonly used in a commercial policy instrument.
Chapter V refers to ‘general and final provisions’. Besides the establishment of a Coordination Group (Article 18), it includes in particular a review clause (Article 19(3)), and provisions on the entry into force of the Regulation (Article 20).
- Legal basis
Article 207 of the Treaty on the Functioning of the European Union.
- Subsidiarity principle
The proposal falls under the exclusive competence of the Union. The subsidiarity principle therefore does not apply.
- Proportionality principle
The proposal complies with the proportionality principle for the following reason(s):
Proportionality is ensured by limiting the content of the proposed option to the provisions of Article 10 UNFP, which previously received EU approval during the negotiations on the Protocol. On the whole, this proposal does not go beyond what is necessary to achieve the objective. Besides standard provisions of a commercial policy nature, in order to take into account the concerns and comments of private stakeholders the proposal implements the ‘May’ provisions of Article 10 UNFP, plus others aimed at reducing the burden of administrative rules, in particular those related to the transit measures.
- Choice of instruments
Proposed instrument: Regulation.
Other means would not be adequate. A Regulation is the legislative instrument foreseen by Article 207 i for commercial policy matters.
The proposal has no implication for the Union budget.
- Review/revision/sunset clause
The proposal includes a review clause.