EEC on control of the acquisition and possession of weapons - Main contents

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dossier	COM(2015)750 - Amendment of Council Directive 91/477/EEC on control of the acquisition and possession of weapons.
source	COM(2015)750
date	18-11-2015

1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

The security of citizens and businesses is a key concern of this Commission. The use of firearms by serious and organised crime and terrorist organisations can inflict huge damage upon society as we have witnessed on several occasions in the past year, notably in the attacks that took place in Paris and Copenhagen. Most recently, more than 120 people died in a series of coordinated terrorist attacks carried out on 13 November 2015 in Paris.

These tragic events ¹ are a clear evidence of the multidimensional threat posed by organised crime, and they have shown why we need to further strengthen our fight against trafficking of firearms, through a coordinated and coherent approach. A common European responsibility for combating cross-border crime and terrorism was also underlined in the political guidelines of President Juncker.

The acquisition, possession and import/export of firearms for civilian use is subject to a comprehensive EU regulatory framework set out in Directive 91/477/EEC as amended by Directive 2008/51/EC.

Citizens of the European Union rely on the national governments and EU institutions to ensure their security. To this effect, it is important to take immediate action strengthening the existing rules on the access and trade with firearms.

• Consistency with existing policy provisions in the policy area

The objective of Firearms Directive 91/477/EEC is to facilitate the functioning of the internal market in firearms within the EU, while guaranteeing a high level of safety for EU citizens. These rules aim to address potential issues and vulnerabilities which can emerge along the life cycle of a firearm (from production to trade, ownership and possession, deactivation and destruction). To this effect, the Directive lays down the minimum requirements that MS should impose as regards the acquisition and possession of the different categories of firearms ² and regulates the conditions for the transfer of firearms across MS, while granting more flexible rules for hunting and target shooting ³ .

The amendment approved in 2008, i.e. Directive 2008/51/EC ⁴ intervened to reinforce the security aspects and to align the Directive to the UN Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, which supplements the United Nations Convention against Organized Crime.

The existing EU legislative framework on firearms largely derives from the www.unodc.org/pdf/crime/a_res_55/255e.pdf">UN Firearms Protocol (UNFP) which was negotiated and signed by the Commission in 2002 on behalf of the EU.

The Protocol is an international instrument to which both the EU and its Member States are parties. The Commission completed the process of transposition into EU legislation of all its provisions, essentially through:

• Directive 2008/51/EC , which integrates the appropriate provisions required by the Firearms Protocol as regards intra-Community transfers of weapons.

• Regulation 258/2012 ( IP/12/225 ) which addresses trade and transfers with countries outside the EU, thereby transposing the provisions of Article 10 of the UNFP.

• Consistency with other Union policies

This initiative is fully consistent with the 2014-2019 strategic objectives of the European Commission with respect to the promotion of 'An Area of Justice and Fundamental Rights Based on Mutual Trust'.

After the terrorist attacks in Paris in January 2015, EU Interior and/or Justice Ministers adopted a 'Paris declaration' in which they reiterated their countries' commitment to reduce the illicit supply of firearms throughout Europe and, accordingly, to increase their cooperation in the framework of the European Multidisciplinary Platform Against Criminal Threats (EMPACT), to improve intelligence sharing, and to ensure the full use of Europol, Eurojust and Interpol resources ⁵ .

During the informal European Council meeting of 12 February 2015, the Heads of State and Government requested that all competent authorities increase the level of cooperation in the fight against illicit trafficking of firearms, including through the swift review of relevant legislation, and a renewed dialogue with third countries on security issues, particularly in the Middle East and North Africa, and with the Western Balkans ⁶ .

At the Justice and Home Affairs Council meeting of 12-13 March 2015, Ministers invited the Commission to propose ways to combat the illicit trafficking of firearms and, together with Europol, to enhance information exchange and operational cooperation ⁷ .

In response, the Commission adopted the European Agenda on Security to ensure an effective and coordinated response at European level to emerging and increasingly more complex security threats. While highlighting the challenges posed by illicit trafficking in firearms, the European Agenda on Security highlighted the differences between national legislation as an obstacle to effective controls and police cooperation across the EU ⁸ and called in particular for reviewing legislation on firearms with proposals in 2016 as a priority action. It also called for an urgent action on the deactivation of firearms to prevent their reactivation and use by criminals. The Declaration of the Home Affairs Ministers Council of 29 August 2015 repeated the call for the revision of the Firearms Directive and for a common approach on the deactivation of firearms.

Finally, on 8 October 2015, the Council adopted conclusions on strengthening the use of means of fighting trafficking of firearms, inviting the Member States, the European Commission, Europol and Interpol to take measures including revising the current legislation, and monitoring the threats posed by firearms through coordinated cross-border investigations and operations. This also covers the trafficking of firearms online ⁹ .

The European Parliament has also considered the issue of firearms trafficking on a number of occasions. On 11 February 2015, the European Parliament adopted a Resolution on anti-terrorism measures ¹⁰ in which it calls "…on the Commission to evaluate as a matter of urgency the existing EU rules on the movement of illegal firearms, explosive devices and arms trafficking linked to organised crime."

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

Article 114 the Treaty on the Functioning of the European Union is the legal basis of this proposal in line with the initial legal basis of the Firearms Directive.

• Subsidiarity (for non-exclusive competence)

According to Article 5 TEU, all action taken on the EU level has to comply with the subsidiarity principle that implies that the EU shall only regulate in case that it adds value to the actions taken by the single Member States.

The issues to be addressed, i.e. the threats of serious and organised crime and terrorism and the potential huge social and economic costs of violent actions, are inherently characterised through their transnational nature, affecting more than one Member State at the same time. In this sense, they cannot be dealt with in a fully satisfactory manner by the individual Member States.

This was demonstrated by recent terrorist attacks in August and November this year which were carried out by transnational criminal networks operating in several Member States. These networks made use of divergent national rules on the possession and trade in firearms and exploited the deficiencies in cross-border exchange of information.

Only an EU-wide system can bring about the co-operation needed between Member States to control and track the civil use of firearms taking place within the EU.

The security issues tackled by the Firearms Directive are of cross-border nature. Vulnerabilities of a Member State to criminal activity affect the European Union as a whole. Differences in national legislation, classification of firearms, and administrative procedures undermine the uniform application of the Directive. As underlined in a recent evaluation study, effective action to ensure a high level of security and regulate the cross-border movement of firearms can only be taken at EU level. The Firearms Directive establishes a common regulatory framework that would not have been achieved through national or bilateral action alone.

• Proportionality

The proposal complies with the proportionality principle for the following reason(s):

Proportionality is ensured by limiting the content of the proposed changes to those with the most important impact on security, according to the main conclusions of the studies carried out in the preparatory phase. On the whole, this proposal does not go beyond what is necessary to achieve the objective of ensuring the security of EU citizens without unnecessarily restricting the internal market.

Besides standard provisions of a commercial policy nature, in order to take into account the concerns and comments of private stakeholders the proposal is aimed at improving security standards and reducing inconsistencies with the UN Firearms Protocol, in particular those related to the definitions.

• Choice of the instrument

The Commission proposes a new directive amending the existing Firearms Directive. Other means would not be adequate to amend the existing Directive.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

As announced in its 2013 Communication ¹¹ , prior to considering the relevance of revising the current legal framework, the Commission launched a series of research studies covering:

• the relevance (or not) of an EU legislative proposal approximating criminal sanctions against the illicit trafficking of firearms ¹² ;

• the relevance (or not) of an EU legislative proposal improving rules on deactivation, destruction and marking procedures of firearms in the EU, as well as on alarm weapons and replicas ¹³ ;

• the implementation of the Firearms Directive in all Member States.

The first study concluded that EU-wide minimum rules on illicit firearms trafficking would reduce legal uncertainty, facilitate prosecutions and ensure that criminals are unable to exploit loopholes. However, the evidence also suggested that practical issues such as lack of resources, conflicting policy priorities and lack of enforcement of existing laws were equally significant impediments to cross-border efforts to combat illicit firearms trafficking, as the differences between national legislation in this area. The study concluded in favour of a policy mix (non-legislative and legislative measures) without favouring either a minimum or a maximum legislative intervention.

The second study proposed a revision of the Firearms Directive, with the aim of:

• Harmonizing the rules for the marking of firearms and establishing the mutual recognition of marks among Member States;

• Enforcing common standards and procedures and introducing registration requirements for deactivated firearms;

• Establishing common technical guidelines on the convertibility of alarm/signal weapons and replicas, by detailing the criteria which qualify alarm weapons and replicas as convertible and, thus, bringing them within the scope of the Firearms Directive;

• Promoting knowledge sharing among Member States (with particular focus on the threats and opportunities offered by technological developments), and improving data collection regarding production and ownership of, and criminal activities related to firearms and deactivated firearms, alarms weapons and replicas.

Finally, the study assessing the implementation of the Firearms Directive recommended, inter alia:

• Defining common criteria on the convertibility of alarm weapons;

• Harmonising the rules on marking and standards for deactivation;

• Strengthening the data collection system and examining the interoperability between information systems created at national level; and finally

• Defining an agreed approach to the classification of hunting and sporting firearms.

Together with this proposal, the Commission is publishing the report on the implementation of the Firearms Directive in accordance with Article 17 of the Directive.

• Stakeholder consultations

Consultation methods, main sectors targeted and general profile of respondents
Summary of responses and how they have been taken into account

1. 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.

2. Summary of responses and how they have been taken into account

Member States and NGOs agreed that implementing the Directive 477/91 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 particularly concerned by amendments to categories that could jeopardize hunting and sports shooters activities.

According to the stakeholders' opinion, the reactivation of deactivated firearms is a relevant source of weapons for criminal use, and loopholes arising from the differences of the national deactivation standards can be used by criminals ¹⁴ . Some consider the Firearms Directive to be rigorous on deactivation, and believe that all that is needed is a control on the implementation by MS and the requested technical guidelines ¹⁵ . However, closer harmonization is generally considered a priority.

All the stakeholders (from Member States authorities, to experts and representatives of producers) consider that there is a real need to exchange information on firearms across the Member States, and that it is an important issue. Moreover, cooperation should not be limited to the exchange among Member States, whereas public and private stakeholders should be brought together ¹⁶ . Increased communication is considered essential for intelligence, joint operations and management. However, focusing on ways of sharing information via e-channels, rather than organising meetings, would be a good practice. Moreover, it should be considered that platforms where such discussions can take place already exist, both at operational level and at regulatory level.

Common recommendations on rules are considered important as some countries have different understanding of some issues (for example, the definition of replicas). To avoid criminals being able to use the different rules between Member States to their advantage, there is a need for a harmonised approach across Europe.

In order to be effective, definitions should include more specific references to alarm weapons and other types of arms not yet well defined in the EU regulatory framework.

The general consensus was that common minimum standards for the deactivation guidelines would help bring the Member States to the same level across the EU through harmonizing various procedures and thus improving communication and facilitating law enforcement. Crime would be reduced, as the application of common minimum standards would help tackle illegal trade of spare parts and prevent the use of illegally reassembled and converted firearms.

The Commission has considered the opinions expressed by public and private stakeholders. This proposal is designed to ensure a higher degree of security/effectiveness and efficiency.

• Impact assessment

Due to the urgency of the proposal in the light of recent events, it is submitted without an impact assessment. The proposal can however rely on a REFIT evaluation of the Firearms Directive. This evaluation has shown remaining shortcomings in areas such as the convertibility of blank firing weapons, marking requirements, deactivation, definitions, internet-selling arrangements, as well as data collection and exchange systems. Additional requirements have been identified in the light of the experience of recent events.

4. BUDGETARY IMPLICATIONS

The proposal has no implication for the Union budget.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

After two years of its entry into force, the Commission will submit a report to the European Parliament and the Council on the situation resulting from the application of this Directive, accompanied, if appropriate, by proposals. Subsequent reports will be submitted every five years to the European Parliament and the Council.

• Explanatory documents (for directives)

Member States shall communicate to the Commission the text of the law, regulations and administrative provisions necessary to comply with this Directive.

• Detailed explanation of the specific provisions of the proposal

In Article 1 the proposal clarifies definitions of brokers and dealers and ensures consistency with the definition of essential components and parts of firearms as defined by UN Firearms Protocol. Commission studies indicate lack of clarity for the definition of 'broker' and highlight the fact that they should also be included in the Directive. Silencers are also included within the scope of the Directive.

In Article 2 the proposal newly includes collectors within the scope of the directive. Collectors have been identified as a possible source of traffic of firearms by the evaluation carried out. Therefore, collectors will have the possibility to acquire firearms but only subject to authorisation/declaration.

Deactivated firearms should be covered by the directive as regards identification of the owner and registers. Evidence gathered by the Commission studies showed this is a serious weakness in the EU legislation in terms of security. Recent attacks have been conducted with badly deactivated firearms (or firearms assembled with badly deactivated components).

The proposal to introduce shortly, through an implementing regulation, stringent minimum common guidelines regarding the deactivation of firearms will render reactivation much more difficult. It cannot be excluded that deactivated arms will be reactivated despite stringent rules. Consequently, for the most dangerous firearms (category A) stricter rules have been introduced – even if they are deactivated. This means that deactivated firearms from Category A will not be allowed to be owned nor traded (except for museums).

A new provision establishes the requirement for record keeping of deactivated firearms in national registries. Any transfer (ie change of owner) of deactivated firearms should be registered.

Semi-automatic weapons represent a high share of today's hunting and sport-shooting weapons. However, the evaluation study concludes that some semi-automatic arms can be easily converted to automatic arms, and the existing Directive does not provide any technical criteria to prevent such conversion. However, even in the absence of conversion to category 'A', certain semi-automatic firearms can be very dangerous when their capacity regarding the number of rounds is high. The proposal bans the semi-automatic weapons which are included in the current category 'B7'.

The proposal introduces EU common rules on marking to avoid that markings are easily erased. It especially clarifies on which components the marking should be affixed (ensure coherence with UNFP marking requirements). It should also apply to imported firearms. A computerised data-filling system is extended to more than 20 years. Data should be kept until destruction of the firearm, but no retroactive application is foreseen.

The evaluation of the Firearms Directive and other preparatory study demonstrated the increasing use of internet as a sales channel for firearms and the difficulties to control it for the future. Considerations about a serious risk of fraud in case of acquisition by means of distance communication may increase with a wider use of such sales method in the future. Given the recent terrorist attacks where in some cases firearms were illegally assembled with components legally bought via Internet, it would be an important risk not to regulate this sales channel. Moreover, it will be more difficult to verify on line the legality of authorisations for arms possession. The risk is still higher in case of acquisition from third countries.

Existing Directive specifies that "Member States shall ensure that, except with respect to dealers, the acquisition of firearms and their parts and munition by means of distance communication …shall, where authorised, be strictly controlled".

The proposal considers a stricter approach: not accepting selling of arms and components by means of distance communication (notably internet), except for dealers and brokers.

Existing Directive does not include alarm, signalling, live-saving weapons etc. It is proposed to define common criteria concerning 'alarm weapons' in order to prevent their convertibility to real firearms. This should, of course, cover both alarm weapons manufactured in the EU and imported weapons.

The risk of convertibility of alarm weapons and other types of blank firing weapons to real firearms is high and constitutes a key recommendation resulting from the Directive's evaluation and other study. According to stakeholder information, convertible alarm weapons imported from third countries can enter the EU territory unhindered due to lack of coherent/common rules. The technical specifications will be adopted through an implementing act.

There is no system to inform other Member States when an authorisation is refused (in particular for Category B firearms). The proposal introduces a system of exchange of information among Member States and requires dealers and brokers to be connected to central firearm registers. In this context, the Commission will explore the use of existing information exchange instruments.

The proposal also introduces a five year time limit for the duration of a licence.

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Contents

1.

Consultation methods, main sectors targeted and general profile of respondents

2.

Summary of responses and how they have been taken into account