Explanatory Memorandum to COM(2006)93 - Amendment of Council Directive 91/477/EEC on control of the acquisition and possession of weapons - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2006)93 - Amendment of Council Directive 91/477/EEC on control of the acquisition and possession of weapons. |
|---|---|
| source | COM(2006)93  |
| date | 02-03-2006 |
On behalf of the European Community (and following Council authorisation of 16 October 2001 i), the Commission signed the United Nations Protocol on the illicit manufacturing of and trafficking in firearms, their parts components and ammunition (the “Firearms Protocol”, hereinafter referred to as “the Protocol”), annexed to the United Nations Convention against transnational organised crime i. Thanks to the inclusion of a deconnection clause, Community competence was preserved when adopting this international instrument.
The purpose of this Protocol is to 'promote, facilitate and strengthen cooperation among States Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition' (Article 2). It comprises a number of articles (21) that aim essentially to 'prevent the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition'. However, some provisions in the Protocol entail limited technical amendments, specifically to the Council Directive of 18 June 1991 on control of the acquisition and possession of weapons, even though the aim of the Protocol evidently differs from that of the Directive, which is applicable only to the legal trade in certain types of weapons (e.g. excluding military weapons), and solely in the context of the Internal Market.
This proposal does not, therefore, concern the aspects of the Protocol that fall outside the scope of Directive 91/477, such as the import/export arrangements applied by the Member States at the external borders of the EU.
First of all, the very concepts of illicit manufacturing of and trafficking in firearms, their parts and components and ammunition should be specified in the Directive by using the definitions of these activities contained in the Protocol – Article 3 – in the aim, of course, of achieving legal clarity, certainty and coherence.
The fight against organised crime also makes the tracing of firearms particularly important. The technical amendments outlined below aim to facilitate the tracing under Directive 91/477 of the arms referred to therein.
For instance, the principle of marking firearms at the time of manufacture – those which fall within the scope of the Directive of course – appears only indirectly in the second paragraph of Article 4 of Directive 91/477, in references to identification particulars that must be recorded in the dealers’ registers. In contrast, Article 8.1(a) of the Protocol clearly establishes a marking obligation ("marking of firearms"). This can be incorporated without modification into the Directive.
Article 4 of the Directive should also include the instruction under 8.1.(c) of the Protocol to ensure also that firearms are marked at the time of transfer from government stocks to permanent civilian use.
This Article of Directive 91/477 requires dealers (defined in the Directive as 'any natural or legal person whose trade or business consists wholly or partly in the manufacture, trade, exchange, hiring out, repair or conversion of firearms' – Article 1(2)) to conserve, for a period of at least five years, a register in which information on all firearms received or disposed of by him is recorded. To strengthen the security aspect of the Directive, the minimum 10-year period specified by the Protocol (Article 7) for keeping the registers should be adopted. Furthermore, it must be stated that brokering activities, as mentioned in Article 15 of the Protocol, fall within the definition of dealer given by the Directive.
Article 5 of the Protocol provides that each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences acts committed intentionally, in particular the illicit manufacturing of or trafficking in firearms. The language used in the Directive to describe the applicable penalties must therefore be strengthened, in order to increase their effectiveness.
Furthermore, Annex I to Directive 91/477 (point III (a)) states that the objects which correspond to the definition of a firearm but which have been permanently rendered unfit for use by the application of technical procedures will not be considered as weapons that fall within the scope of the Directive. However, Article 9 of the Protocol sets out more extensive general principles for the deactivation of firearms that must be incorporated into the amended Directive.
The proposed amendments do not cover new problems in relation to the general economy of the Directive. They merely adapt the provisions of the Directive to the new legal context brought about by Community accession to the Protocol.
The proposal is consistent with the EU policy against organised crime in particular. It is entirely in keeping with the Communication from the Commission on 'measures to ensure greater security in explosives, detonators and firearms' – COM(2005) 329 final – which states: 'a technical modification of Directive 91/477 will be proposed by the Commission in 2005, in order to integrate the appropriate provisions required by the Protocol as regards intra-Community transfers of weapons concerned by the Directive'.
Consultation of stakeholders
There is no need for consultation in this case, as it would amount to validating an international obligation of the Community.
It should be remembered that the proposal affects only the technical aspects of the Directive; a technical assessment of the proposals put forward was provided by a group of national experts, as explained below.
Scientific/expertise domains concerned
The proposed amendments already received EU approval during the negotiations on the Protocol; this was a mixed agreement, negotiated in a dialogue between all the Member States and the Commission; they simply reflect the positions on the basis of which the Protocol was concluded.
Meeting of an informal group of national experts on the application of Directive 91/477 on 23 May 2005, to examine the editorial consequences on the Directive of accession to the Protocol.
Representatives of the Ministries of Justice, of the Interior and of Defence.
The group deems it necessary to make the technical amendments proposed, especially as they ensue from an agreement (the Protocol) that has already been negotiated and concluded.
The Protocol has been widely published (see references above) and the interested parties have not expressed any reservations.
An impact assessment is not necessary for simple technical amendments ensuing from the Community’s international commitments, as established in the document 'Impact assessment guidelines' (SEC(2005) 791 of 15 June 2005).
Failure to incorporate these amendments would lead, in particular, to legal uncertainty for economic operators and a breach of the Community’s international obligations.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- Grounds for and objectives of the proposal
- General context
- Nature of the proposed amendments
- Consistency with the other EU policies and objectives
- CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENTS
- Collection and use of expertise
- Methodology used
- Main organisations/experts consulted
- Summary of advice received and used
- Means used to make the expert advice publicly available
- Impact assessment
- Summary of the proposed measures
- Legal basis
- Subsidiarity principle
- Proportionality principle
- Choice of instruments
- ADDITIONAL INFORMATION
- Repeal of existing legislation
- Detailed explanation of the proposal by chapter or by article
To define, within the scope of application of the Directive, the notions of illicit manufacturing and trafficking of firearms, to reaffirm the need for marking, to increase the period for keeping registers prescribed by the Directive, to clarify the applicable penalties and to set out the general principles on the deactivation of weapons defined by the United Nations Protocol.
Article 95 of the EC Treaty.
The Commission’s action is justified by the signing of the Protocol, which of course contains the international obligations that must be observed.
The proposed amendments are limited to the integration into the Directive of the provisions of the Protocol.
The financial and administrative burden incurred by these technical amendments is extremely limited.
In practice, for instance, economic operators already mark the weapons in question and the registers are mainly kept in computerised form; the general principles of deactivation offer a large choice of applicable techniques, and the establishment of applicable penalties is of no financial consequence.
Proposed instrument(s): Directive.
As the original legal provision to be amended is a Directive, the appropriate legal instrument is therefore another Directive, in accordance with the principle of parallel forms.
The choice of another Community instrument, or recourse to national legislation to make the intended changes, would have deprived the Directive of part of its substance and even undermined its coherency and credibility.
Furthermore, it would be unjustifiable if the Community, which is party to the Protocol, did not bear the consequences in its internal legal system.
The proposal has no implications for the Community budget.
Simplification
With the guarantee of sufficient marking and a higher minimum duration for the keeping of registers, the public authorities at EU level may, in particular, expect improved traceability of the weapons covered by the Directive.
No other current legislative provisions are likely to be repealed.
This can be consulted in part 3) 'legal elements of the proposal, summary of the proposed measures'.