Explanatory Memorandum to COM(2022)480 - Import, export and transit measures for firearms, components and ammunition, implementing UN Protocol on firearms and Convention against Transnational Organised Crime - Main contents
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| dossier | COM(2022)480 - Import, export and transit measures for firearms, components and ammunition, implementing UN Protocol on firearms and ... |
|---|---|
| source | COM(2022)480  |
| date | 27-10-2022 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Illicit flows of firearms facilitate serious and organised crime, including terrorism, by enabling violent approaches towards achieving criminal goals, supporting illicit businesses, and protecting them from competition. Illicit firearms also affect other areas of organised crime, such as trafficking in drugs and human beings. It is estimated that 35 million illicit firearms were owned by civilians in the EU in 2017 (56% of the estimated total of firearms). 1 According to those estimates, illicit firearms outnumber legally-held firearms in 12 EU Member States 2 .
The current EU rules on import, export and transit of firearms are contained in Regulation (EU) No 258/2012 of the European Parliament and of the Council of 14 March 2012 implementing Article 10 of the United Nations’ Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, supplementing the United Nations Convention against Transnational Organised Crime (hereinafter ‘UN Firearms Protocol’), and establishing export authorisation, and import and transit measures for firearms, their parts and components and ammunition (hereinafter ‘the Firearms Regulation’). The Regulation aimed to address key challenges related to the tracing and illicit trafficking of civilian firearms by setting common definitions, rules and principles for export, import and transit procedures. Its overall strategic objective was to reduce the risk of illicit trafficking in firearms for civilian use by ensuring coherence across Member States in rules on external trade in line with Article 10 of the UN Firearms Protocol.
The Firearms Regulation defines the requirements for legal export procedures and for the tracing of firearms during international transports to be horizontally implemented across EU Member States. Therefore, being addressed to individuals and businesses operating in the legal market, the Firearms Regulation was intended to have an indirect impact on illicit trafficking. Specifically, the Firearms Regulation regulates the export authorisation for civilian firearms as well as the transit and import of these firearms. It also establishes customs formalities, simplified procedures for export, penalties, record-keeping obligations and the obligation to share information and administrative cooperation.
The 2021 Serious and Organised Crime Threat Assessment, published by the European Union Agency for Law Enforcement Cooperation (Europol), pointed out that illegal firearms originate from within the EU but also from weapon stocks outside the EU. 3 The project “Studying the Acquisition of Illicit Firearms by Terrorists in Europe” (SAFTE) found that in the EU, external supply channels are more important than internal ones in fuelling illicit firearms markets. Cross-border trafficking of firearms from non-EU countries was considered the most important supply mechanism. 4 The durability of firearms means that, once smuggled into a Member State, weapons can remain inside the EU for many years and easily circulate across borders. 5
A recent study from the United Nations Office on Drugs and Crime (UNODC) also shows that the traditional closed character of the illicit firearms market in the EU is eroding due to continuing cross-border trafficking of firearms into the EU from post-conflict countries, the increased availability of easily reactivated or converted weapons and increased access to firearms through online markets. As a result, various types of firearms have become more easily available for criminals, including terrorists with the right criminal connections. 6
Furthermore, the circumvention of rules and diversion of firearms contribute to the trafficking of firearms, their essential components and ammunition. One of the recent trends in firearms trafficking by criminals is searching for markets with less restrictive legislation, inside and outside of the EU, towards firearms possession. They acquire firearms legally in one country in order to transport them illegally to other countries for their own criminal purposes or further redistribution. 7
As stated above, trafficking of firearms into the EU from post-conflict countries is one of the main supply chains. Legacy weapons from the armed conflicts in the Western Balkans are the largest source for cross-border trafficking of firearms into the EU.
The consequences of Russia’s unprovoked and unjustified military aggression against Ukraine have a significant impact beyond Ukraine, on our neighbourhood and the EU internal security. While there is no direct link between the proposal and the export of firearms for military purposes to Ukraine, the revised Firearms Regulation, when it enters into force, will reduce the risk of circumvention of embargos in the case of exports of firearms for civilian use and will increase the controls of the import of civilian firearms from non-EU countries (including post-conflict ones), which will have to be properly traced.
The proposal aims at combating and preventing firearms trafficking into and from the EU, including by addressing the risks at import and at export. At import, the two main risks are linked to the circumvention of unclear rules that enable the import of “semi-finished” firearms and components. These semi-finished firearms and components can be used to manufacture firearms at home, which are not correctly marked and registered (so-called “ghost guns”). Furthermore, alarm and signal weapons that are convertible into lethal firearms are used all over the EU in criminal contexts. At export, the main risk lies in the diversion of civilian firearms shipped to a non-EU country and being re-exported to countries subject to arms embargoes or sold to criminals and armed forces due to lack of controls and supervision before and after the export process. Once diverted, those firearms may contribute to a destabilisation near the EU borders or be eventually trafficked back into the EU.
Therefore, this proposal aims to enable coordinated controls between Member States and to ensure the traceability of firearms. Notably, the proposal provides for the proper recording of firearms-related information, responds to the need of improving the work of customs authorities in detection of illicit firearms, their components and ammunition, and limits the import of semi-finished firearms and essential components to arms dealers and brokers only, which is a key novelty. Furthermore, this proposal aims at clarifying the role of the licencing authorities. It also aims to improve cooperation between law enforcement authorities (including customs) and licensing authorities, in both import and export, in order to improve the traceability of firearms, their components and ammunition.
Furthermore, the proposal aims to improve the systematic data collection on international movements of firearms for civilian use, as well as data on seized firearms. The absence of centralised data at national level and the lack of transparency due to the sensitivity of the data are hindering the collection of qualitative data. In turn, the lack of data hinders the development of targeted policies and research in the field of firearms trafficking. Therefore, the proposal focuses on receiving annual data by Member States on the number of authorisations and refusals for authorisation as well as the quantities and values of civilian firearms imports and exports, by origin and destination. Additionally, the systematic collection of seizure data is necessary to create targeted policies to prevent and tackle firearms trafficking.
In addition, the proposal aims to balance, on the one hand, the need for increased security and, on the other hand, the facilitation of the legal trade of firearms. In this context, the proposal aims to ensure a level playing field and to reduce the administrative burden placed on economic operators and firearms owners, since economic operators continue to face different national rules, procedures and practices when trying to obtain an export or import authorisation. Furthermore, EU businesses are subject to different requirements and administrative procedures, and therefore bear different costs, depending on the Member State in which they operate. Furthermore, they are faced with burdensome paper-based procedures. The proposal therefore aims to address these challenges by creating a clear legal framework, focusing on digitalisation of procedures, and increasing the cooperation between customs and licensing authorities to facilitate the import, export and transit procedures. Concerning firearms owners, the relevant provisions facilitate temporary movements of firearms without being subject to lengthy authorisation procedures, namely by providing in certain cases exemptions from import and export authorisations for hunters, sport shooters and collectors.
Finally, this proposal aims to solve the existing grey area and address the overlap between the scope of the Firearms Regulation and the scope of the Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment (hereinafter: ‘the Common Position’). This overlap leaves room for divergent interpretations and inconsistencies in the application of the correct (military or civilian) export regime to items that fall in this area. Furthermore, the lack of clear objective criteria set in both the Firearms Regulation and the Common Position to establish whether firearms or ammunition are military or civilian is problematic. In this context, the scope of this proposal is fully aligned with the scope of Directive (EU) 2021/555 of the European Parliament and of the Council of 24 March 2021 on control of the acquisition and possession of weapons (hereafter ‘the Firearms Directive’) (including the category A of most dangerous firearms). State-to-State (i.e. government-to-government) transactions as well as direct sales to the armed forces, the police or public authorities will remain excluded from the scope of this initiative and will continue to be subject to the Common Position. All other transactions are considered of civilian nature and therefore subject only to the rules and procedures provided for in this proposal.
• Consistency with existing policy provisions in the policy area
This proposal is consistent with the priorities of the Commission’s EU Security Union Strategy 8 , which calls for an assessment of whether the rules on export authorisation and import and transit measures for firearms are still fit for purpose. The focus remains towards the improvement of the traceability of weapons and to ensure information exchange between licensing and law enforcement authorities.
This proposal also reflects the priorities of the Commission’s EU Strategy to tackle Organised Crime 9 , which identifies firearms as a key enabler of the increasing violence by criminal groups, allowing them to intimidate their opponents and exert control over their members and markets.
In addition, this proposal follows-up on the implementation of the 2020-2025 EU Action Plan on firearms trafficking 10 . This action plan has four main priorities, which this proposal also contributes to: safeguarding the licit market and limiting diversion, building a better intelligence picture, increasing pressure on criminal markets, stepping up international cooperation.
More specifically, Action 1.4 of the action plan requires that “The Commission will conduct an impact assessment on the EU legislation on controls for imports and exports of civilian firearms, to examine ways to improve traceability (harmonised import markings), to exchange of information between national authorities to avoid circumvention of export prohibitions, and to increase the security of export and import control procedures of firearms (more clarity in simplified procedures). It will examine how to ensure consistency between Regulation No 258/2012 and the Firearms Directive, for instance, to better address the imports of easily convertible alarm and signal weapons, or to apply export controls to all weapons regulated by the Directive. To ensure robust enforcement of its rules, the Commission also intends to make applicable the whistle-blower-protection regime put in place with Directive (EU) No 2019/1937 to persons who report breaches of Regulation No 258/2012 as amended.” This proposal addresses all of these points.
• Consistency with other Union policies
This proposal also takes into account relevant EU policies that have been adopted or launched since the entry into force of the Firearms Regulation. This includes the Union Customs Code (hereinafter UCC) Regulation (EU) No 952/2013, which was also amended multiple times; the Delegated Regulation (EU) 2015/2446 supplementing the UCC Regulation; and the Implementing Regulation (EU) 2015/2447 laying down details rules for implementation of the UCC. The proposal is also in line with the transition of the UCC to a fully electronic customs.
As regards EU customs policy, this proposal takes into account the EU Customs Action Plan 11 , supporting the EU customs to protect revenues, prosperity and security. Furthermore, this initiative also subscribes to the EU’s priorities and strategy on customs risk management 12 . Some of its key objectives, such as improved data quality, information sharing, efficient controls and risk-mitigation and interagency cooperation, are extremely valuable for this proposal.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis of this proposal is Article 207 of the Treaty on the Functioning of the European Union (TFEU) related to the EU’s common commercial policy. Legislation adopted in the area of the EU’s common commercial policy falls under the exclusive competence of the EU. Article 207 TFEU refers to measures defining the framework for implementing the common commercial policy, which shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. Article 207 TFEU was also the legal basis for the Firearms Regulation.
In addition to Article 207 TFEU, this proposal also has as legal basis Article 33 TFEU, since it addresses aspects related to exchange of information and cooperation between customs authorities, between customs and competent licensing authorities, and between those authorities and the Commission.
• Subsidiarity (for non-exclusive competence)
A subsidiarity check is not required in an area of EU exclusive competence; however, the need for EU action is clear. The objective of the legislation is to ensure that no legal loophole facilitates the diversion of the EU import, export and transit legislation concerning firearms, essential components and ammunition.
• Proportionality
The proposal is proportionate in relation to the stated overarching objectives. While the obligations on Member States may in certain cases entail some additional administrative burden (e.g. where Member States need to develop a centralised computer-filling system, systematically check if deactivated firearms are properly marked and accompanied by a deactivation certificate or when declaring semi-finished firearms and essential components), these are anticipated to be generally limited in numbers or be one-off investments. In this regard, it should be noted that many Member States already have existing practices in place and some of the obligations provided in the proposal already exist for transfers within the EU.
As regards specific provisions of the proposal, such as listing the firearms that should be traced and recorded at export, they would have no significant impact on licensing authorities and therefore would not be disproportionate, since the information related to the name of the manufacturer or the brand, the country or place of manufacture, the serial number and year of manufacture are already part of the unique marking under the Firearms Directive. This information is consequently already available in national data-filing systems and on the firearms present in the EU. The only impact would be to ensure that data-filing systems for export authorisations include the same information.
As all exports are matched by a corresponding import in a non-EU country, providing a copy of the import declaration would not create an additional burden, except in countries with endemic corruption or failing administrative structures. Enabling Member States to entitle third parties to conduct post-shipment controls in their name would facilitate post-shipment controls without creating an administrative burden for national administrations or for economic operators.
Concerning exchange of information, compared to the absence of notification, providing for a compulsory exchange of information about denials in a common database may slightly add to the administrative burden of licensing authorities, although in a very limited way, considering the low number of denials each year (around 30 refusals annually). If this system is the same as the one currently used for dual-use goods (DUeS), the additional burden would be very low, since most export licensing authorities already have access to DUeS. Therefore, this provision would not be disproportionate compared to the pursued objective.
As regards the obligation for export licensing authorities to check in the Schengen Information System (SIS) whether exported firearms were reported lost or stolen in another Member State, such an obligation is also proportionate, since it would only apply in suspicious cases and not in the case of weapons registered in the data-filing system of the Member State of export, or for newly-manufactured firearms. Limiting the import of semi-finished firearms and essential components to licensed arms dealers and brokers only (and, conversely, prohibiting them for private individuals) would marginally increase the enforcement costs of customs. Considering the limited share of firearms imports in the overall trade and the fact that customs carry out targeted checks based on risk assessments, this impact is considered negligible.
Overall, the simplifications introduced by this proposal (e.g. connection to the EU Single Window Environment for customs, clarification of the scope, further simplified procedures, including with respect to the Authorised Economic Operators, temporary exports) will have a positive effect not only on the correct and complete implementation of the Firearms Regulation but also on the administrative burden of economic operators and firearms owners. The investments and administrative work to create the digitalised procedures and the interconnection between systems are one-off and proportionate considering their very positive effects.
• Choice of the instrument
Given that this proposal will recast the Firearms Regulation, the recast has to take the same form of a Regulation. The reason for this recast is the large number of new provisions that this legislative proposal is introducing. The recast will allow for a readable and logical structure of the text. Annex V contains a table of correspondence.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
In 2017, the Firearms Regulation was subject to an evaluation aimed at assessing its implementation in terms of its relevance, coherence, effectiveness, efficiency, EU added value and sustainability. 13
The evaluation identified loopholes due to a lack of homogeneous implementation. In particular, the evaluation stressed that the Firearms Regulation’s added value was limited by the absence of a genuine harmonisation of national rules and processes. Furthermore, the Firearms Regulation was ineffective in distinguishing between military and civilian firearms, in ensuring the full traceability of weapons, and in ensuring proper exchanges of information between Member States (notably of refusals to grant export authorisations). The evaluation report also found that the Firearms Regulation was inefficient in terms of reduction of administrative costs for companies. Furthermore, the evaluation considered that the Firearms Regulation lacked consistency with other relevant EU legislation, notably the revised Firearms Directive and the EU Common Position.
The evaluation was followed by a Commission Recommendation issued in April 2018 that called for strengthening the implementation of EU rules to improve traceability and the security of export and import control procedures of firearms and the cooperation between authorities in the fight against firearms trafficking. 14
• Stakeholder consultations
In developing this proposal, the Commission consulted a wide variety of stakeholders, including: the competent authorities in Member State, such as administrative bodies in charge of import and export licences and law enforcement authorities (police and customs), firearms owners (in particular sport shooters, hunters and collectors), and economic operators (notably arms dealers, including manufacturers and brokers).
Stakeholders were consulted through a variety of means, including: a public feedback opportunity regarding the Inception Impact Assessment 15 for this proposal, bilateral exchanges, a public consultation 16 and a confidential survey. Moreover, the external contractor responsible for the feasibility study that supported the development of the impact assessment carried out consultations with many stakeholders through, e.g. an online questionnaire with additional written contributions and one-on-one meetings.
These consultations allowed the Commission to assess the effectiveness, efficiency, relevance, coherence and EU added value of the existing procedures on import, export and transit of civilian firearms (i.e. the baseline situation), existing gaps and challenges, different policy options that might be considered in addressing these problems, and the specific impacts that these options might be expected to have. Overall, there was a consensus among stakeholders concerning areas that require improvement, notably the need for greater harmonisation of EU rules and a growing need for digitalisation of procedures.
The vast majority of respondents in the public consultation agreed that the challenges identified by the Commission created a high to very high burden for the legal movement of civilian firearms. When focusing on possible policy options linked to improving legal import, export and transit of civilian firearms, the majority of respondents indicated that digital import and export licences, clear rules for simplified procedures and publishing a list of competent authorities would have a high to very high impact. While having the same licensing procedure for civilian as for military firearms was considered not at all or only to a small extent important to improve the legal import, export and transit of civilian firearms. The Commission took this concern into account by limiting the legislative proposal to civilian firearms only. The respondents to the public consultation were also concerned about limiting the sale of semi-finished components. However, this initiative limits the sale of these to licenced firearms dealers. Sport shooters and hunters will therefore still be able to buy spare parts through licenced firearms dealers in the EU.
The confidential survey allowed for more detailed question than the public one, specifically focusing on the trafficking of firearms. The answers also confirmed the challenges of the non-harmonised import and export procedures voiced in the public consultation. The confidential survey confirmed that the exchange of information was not sufficient, especially regarding the systematic use of Europol’s Secure Information Exchange Network Application (SIENA) 17 , communication on refusals, creation of Risk Information Fiches and use of Customs Risk Management System. The confidential survey also confirmed the loopholes regarding alarm and signal weapons, checks of criminal records, deactivated firearms and semi-finished components. The majority of the respondents indicated that the policy options, identified by the Commission and proposed in this initiative, would have a high to very high impact on the fight against firearms trafficking.
The bilateral consultations with Member States and economic operators focused on the answers from both consultations. The various options and comments were discussed in order to get a thorough understanding of the needs and responsibilities of the various actors.
• Collection and use of expertise
As mentioned in the preceding section, the Commission had drawn on external expertise in the context of consultations with, e.g. the Member States, economic operators and individual firearms owners.
• Impact assessment
The impact assessment that supported the development of this proposal explored different policy options to address the general and specific problems described earlier. Besides the baseline situation, which would entail no change over the current situation, these options included:
Option 1: soft-law approach. The focus would be on fully implementing the 2018 Recommendation of the Commission on immediate steps to improve security of export, import and transit measure for firearms, their parts and essential components and ammunition by creating specific guidance and recommendations.
Option 2: clarification of the existing legal framework. The clarification would remove ambiguities in the interpretation of the applicable legislation (e.g. type of information to be recorded, classification of certain weapons and components as firearms), a legal basis to require competent authorities to use existing systems to exchange information, harmonising existing simplified procedures, aligning deadlines, clarifying roles of importers and exporters, and aligning the scope of the Regulation with intra-EU rules (same weapon categories, same economic operators). This option would essentially translate most of the measures mentioned in option 1 in the text of the Regulation.
Option 3: new legislative provisions. This option would build on and complement option 2, and would add to it new legislative provisions. It would ensure the full traceability of imported and exported firearms, such as compulsory import marking, limiting imports of semi-finished components to dealers, computerised data-filing, end-user certificates for the export of firearms which are prohibited or subject to authorisation (categories A and B) and post-shipment checks. It would require national authorities to share statistics and improve exchanges of information between licencing and customs authorities. It would also establish new simplifications (temporary imports, general export authorisation, e-procedures), and remove the scope overlaps with EU rules on exports of military equipment (Common Position) by applying exclusively to all civilian-to-civilian transactions.
Option 3 bis: new legislative provisions without a change to the interplay with the Common Position. This option would be substantially similar to option 3, with one exception: instead of following the logic of the Firearms Directive for the distinction between military and civilian transaction, the Firearms Regulation would maintain the reference to “firearms specifically designed for military use”. This would require the establishment of the technical characteristics, which would define whether the firearms owned by civilians must be considered as military or civilian ones.
In light of the various economic, social and environmental impacts associated with each of the options, but also their value in terms of effectiveness, efficiency and proportionality, the impact assessment found that the preferred option was Option 3. While Options 1 and 2 would not deliver the changes needed to address the problem, Option 3 would have the highest EU added value. The full alignment of the scope with that of the firearms Directive (codified in 2021) would mean that the regulation would govern all civilian transactions of firearms, including civilian trade of automatic firearms, semi-automatic firearms with high-capacity magazines or semi-automatic long firearms with a folding or telescopic stock. As in the Firearms Directive, transactions between governments, or sales to the military or the armed forces would remain excluded from the regulation, which means the security and the simplification objectives could only be achieved for civilian firearms. The new simplifications introduced would respond to the requests of stakeholders (arms retailers, manufacturers, hunters and sport shooters) to alleviate their administrative burden and provide a uniform EU approach. Option 3 bis was not considered effective and feasible as the establishment of a list of military firearms could give rise to legal disputes.
The impact assessment was subject to scrutiny by the Regulatory Scrutiny Board (hereinafter ‘the Board’), which issued a positive opinion with comments on 8 April 2022. The Board pointed to a number of elements of the impact assessment that should be addressed. Specifically, the Board requested to add the lack of reliable data as a fully-fledged problem to be addressed, to better describe the expected evolution of the problems, to further clarify the role of the Common Position and to clarify the added value of the soft-law option (option 1). Furthermore, the Board saw the need to further develop the section on future monitoring and evaluation, specifically by adding indicators of the data to be collected. Additionally, the Board requested to further clarify the estimates of the administrative costs and savings for businesses and citizens. Finally, as regards to the comparing of options, the Board sought additional clarifications in terms of effectiveness, efficiency and coherence. These and other more detailed comments provided by the Board have been addressed in the final version of the impact assessment. The Board’s comments have also been accounted for in this proposal.
• Regulatory fitness and simplification
In line with the Commission’s Regulatory Fitness and Performance Programme (REFIT), all initiatives aimed at changing existing EU legislation should seek to simplify and deliver stated policy objectives more efficiently. The analysis of impacts suggests that the preferred option is anticipated to limit the overall burden on Member States.
Improved exchanges of information and targeted controls imply an additional workload notably for customs authorities but the competent authorities interviewed considered that this workload will be moderate, especially considering the fact that checks will remain targeted and risk-based and not systematic. Besides, the trade of civilian firearms constitutes a negligible fraction of the overall imports and exports. Additional checks of licencing authorities will include the obligation to: systematically check refusals issued by other Member States, check the Schengen Information System in case of suspicion, check the European Criminal Record Information System (ECRIS), reply to a request for an import authorisation within a set deadline of 60 days (exceptionally 90 days), and submit annual statistics.
Besides, the proposal includes measures to alleviate the workload of competent authorities. This is notably the case for: the establishment of simplified procedures for temporary imports or exports, which will alleviate the workload of licencing authorities for such simple movements; introduction of an EU certificate for the import of alarm and signal weapons in a central database, facilitating checks by customs authorities; possibility to entitle third parties to conduct post-shipment controls in the name of competent authorities; full digitalisation of import and export licensing, which will remove the need for manual entries and checks of paper requests.
Overall, simplification is one of the main objectives of the proposal. The focus is not only on digitalisation but also on creating a simpler and more unified regulatory framework, specifically by addressing the grey zone between the civilian firearms of the Regulation and the firearms “specifically designed for military use” subject to the procedures of the Common Position.
This proposal is applicable for small operators, which constitute 90% of the total number of the economic operators involved. However, 82% of the total manufactured turnover of firearms is made by large companies, so SMEs would only be marginally affected by the proposition.
• Fundamental rights
By addressing the threat of firearms trafficking, all envisaged options will have a positive impact on the right to security enshrined in article 6 of the Charter of Fundamental Rights. Article 16 of the Charter recognises the freedom to conduct a business “in accordance with Union law and national laws and practices.” This proposal will not affect the right to conduct business as only authorised arms dealers are already allowed to trade firearms.
It is settled case-law that the right to property enshrined in Article 17 of the Charter is not absolute and is subject to proportionate restrictions in furtherance of objectives of general interest. None of the envisaged options would deprive legal owners of their property. The provision that would make it illegal for others than licensed arms dealers to import semi-finished firearms and essential components would not have retroactive effect (assuming that the previously imported semi-finished firearms or components have been duly declared under the current legal framework).
Additionally, the envisaged options would fully respect the objectives of article 45 of the Charter with respect to the right of movement of EU citizens, since it would confirm their possibility to temporarily leave the EU (and come back) with their personal firearm, when travelling for sport or hunting purposes. Additional simplifications for collectors or museums should also facilitate their right of movement.
Finally, any processing of personal data will always be subject to compliance with Union rules on the protection of personal data, including the General Data Protection Regulation 18 .
4. BUDGETARY IMPLICATIONS
The legislative proposal has implications for the Union budget. The total financial resources necessary to support the implementation of this proposal are estimated to be EUR 4.654 million for the period 2022-2027, of which EUR 2.904 million for administrative expenditure to cover among other things 4 additional FTEs needed for the overall MFF period.
More detailed information is available in the Legislative Financial Statement that accompanies this proposal.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The implementation of the proposed Regulation will be reviewed first through an interim application report within 5 years after its entry into force. This report will assess the extent to which the Member States have taken the necessary measures to comply with the Regulation. 10 years after the entry into force, a full report will be sent to the EU Parliament and the Council of the EU. These two reports are taking into account the time needed to full roll-out of the digitalisation of procedures and the interconnection with the EU Single Window Environment for Customs. These reports will include a specific stakeholder consultation to assess the success of the Regulation. During that consultation, the effects of replacing the global authorisation by a general export authorisation for Authorised Economic Operators, the simplified temporary exports and imports, the implied consent of the non-EU country of transit as a default option and the digitalisation of processes will be assessed from the viewpoint of the industry.
• Detailed explanation of the specific provisions of the proposal
Contents
Article 1 sets out the subject matter and the purpose of the Regulation, which is focused on the implementation of Article 10 of the United Nations Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime.
Article 2 provides a list of definitions that apply for the purpose of the Regulation.
Article 3 sets the scope of the Regulation by providing what is excluded from such scope, i.e. State to State transactions or State transfers; firearms, their essential components and ammunition when destined for the armed forces, the police, or the public authorities, and antique firearms and their replicas as defined in the article. This resolves the grey area between the scope of the Firearms Regulation and the scope of the Common Position.
Chapter II: Entry and import requirements (Articles 4-11)
All articles in this chapter are added through this legislative proposal.
Article 4 establishes derogations from Union customs simplifications and reduced datasets for the firearms, their essential components and ammunition listed in Annex I to this Regulation. As firearms are sensitive items, customs procedures should be as thorough as possible in order to increase the possibility for risk assessments. Therefore, there is a need to derogate from the simplifications applicable.
Article 5 establishes the tasks of economic operators at import. Economic operators are responsible for a number of tasks, such as verifying the imported products, keeping all certificates and documentation, and cooperating with the authorities in case of suspicion or when requested. Clearly establishing the tasks and roles is important to facilitate the understanding of the responsibilities of the different actors in the import procedures.
Article 6 stipulates that each firearm, including deactivated ones, has to be marked according to the EU Firearms Directive before being imported into the EU. Furthermore, if a firearm is marked according to the UN Protocol, but not according to the Firearms Directive, the firearm can be re-exported or placed under a customs regime. If a firearm does not have marking in line with either the EU Firearms Directive or the UN Protocol, it should be seized and destroyed. This provision ensures the correct marking of a firearm before being imported in the EU and it also prevents the further distribution of firearms which are incorrectly or not marked according to the UN Protocol. The ultimate goal is to improve the traceability of firearms.
Article 7 stipulates that each deactivated firearm has to be accompanied by the deactivation certificate as established by the Firearms Directive. If the deactivation certificate does not accompany a deactivated firearm, the deactivated firearm can be placed under a customs regime or be imported as a firearm. This provision prevents the import of wrongly deactivated firearms. This is a threat because of the possible reactivation of these deactivated firearms.
Article 8 establishes the import rules regarding alarm and signal weapons, such as the obligation to indicate their non-convertibility on the import authorisation, following the compliance with Implementing Directive (EU) 2019/69. It also regulates the information exchange between the Commission and the Member States regarding non-convertible alarm and signal weapons. This provision is important to prevent the import of convertible alarm and signal weapons without them being authorised as a firearm.
Article 9 defines who can ask for an import authorisation. Furthermore, it also determines how Member States need to process the applications, the reasons for refusals and the necessity to check the applicant in the European Criminal Record Information System to prevent convicted persons from importing firearms. Additionally, it limits the import of semi-finished firearms and essential components to licensed dealers and brokers only, which is a key novelty significantly reducing the threat of home manufactured firearms without marking or registration (“ghost guns”). Furthermore, it also states that no fees shall be charged for the submission and processing of an import authorisation. This provision will facilitate the harmonisation of rules on import authorisations in the EU.
Article 10 establishes the administrative simplification for import authorisations, setting out the import procedures where no prior import authorisation is required, and the subsequent procedure linked to the customs declaration. This means that for a number of reasons, such as hunting expeditions, sport shooting events and firearms exhibitions, firearms owners will be exempt from import authorisations and will not need to pre-register temporary movements or ask for a prior agreement to conduct such movements as long as these movements do not exceed 24 months. Such firearms owners will only need to comply with the relevant customs procedures, which will allow customs authorities to check if the amount and type of firearms that was temporarily exported from the EU are the same as the ones that are re-imported. This new provision is introduced to facilitate the harmonisation of rules on administrative simplifications in the EU. This will contribute to decreasing the administrative burden for hunters, sport shooters, collectors or movements linked to exhibitions.
Finally, Article 11 establishes the possibility to confirm the receipt of imported firearms, their essential components and ammunition as listed in Annex I to this Regulation. This provision allows third countries of export to check the actual import of the firearms in order to detect diversion in case of lack of import.
Article 12 establishes the procedures to follow and the documents to be exchanged for intra-EU transit. This provision increases the harmonisation of procedures of firearms movements in the EU and allows customs and competent authorities to trace all firearms movements before the actual import into the EU. Once the firearms are imported, movements of firearms are regulated by the Firearms Directive.
Article 13 establishes the procedures to follow and the documents to be exchanged for external-transit 19 . Furthermore, it also states that Member States need to take the national foreign and security policy and those covered by the Common Position into account. This provision increases the harmonisation of procedures of firearms movements in the EU and allows customs and competent authorities to trace all firearms movements, even though these firearms are never actually imported in the EU.
Article 14 defines who can ask for an export authorisation. It also determines the added task that an end-user certificate is needed for firearms of categories A and B of Annex I, part I and states the information that needs to be included. It also states the procedure if the to-be exported goods are located in one or more Member States other than the one where the application for the export authorisation was made. This provision will facilitate the harmonisation of rules on export authorisations in the EU. Furthermore, it also introduces the end-user certificate as a preventive manner regarding the diversion of firearms at or after export. The requirement to provide the end-user certificate will not be applicable to firearms owners benefitting from the administrative simplifications provided for in Articles 10 and 17, such as hunters, sport shooters and collectors falling under the exemption from import and export authorisations.
Article 15 states what Member States need to verify before issuing an export authorisation: the deadlines for the procedure, the rules regarding the validity of a single, multiple and Union general export authorisation, and the obligation to use an electronic process. It also states that the exporter needs to supply the necessary documents to the Member States and that no fees shall be charged for the submission and processing of an export authorisation. Furthermore, it also states that the Commission shall adopt a delegated act to establish a Union general export authorisation. This provision increases the harmonisation of rules in the EU.
Article 16 states which information must be included in the export authorisation and the import authorisation issued by the importing third country. Furthermore, it also lists the obligation for the marking of firearms, their essential components and ammunition before export. This provision aims at increasing the traceability of firearms.
Article 17 establishes the administrative simplification for export authorisations, setting out the export procedures where no prior export authorisation is required, and the subsequent procedure linked to the export declaration. This offers simplifications in export procedures analogous to those described above in Article 10 concerning import procedures, i.e. in certain cases, firearms owners will be exempt from export authorisations and will only need to comply with relevant customs procedures without having to pre-register temporary movements or ask for a prior agreement to conduct such movements as long as these movements do not exceed 24 months. It establishes the obligation to use a European Firearms Pass according to the Firearms Directive. Firearms owners operating in the EU already have to comply with the requirements of the Firearms Directive and therefore this provision will not result in any additional obligations on them. Instead, it will ensure greater coherence between the Firearms Regulation and the Firearms Directive bringing in return more clarity for firearms owners. Furthermore, it also states that a Member State can suspend the process of export and the deadline to receive objections for transit by third countries. While administrative simplifications in the export procedures already exist under the current Regulation, this provision introduces the harmonisation of rules on administrative simplifications in the EU. This will contribute to decreasing the administrative burden for hunters, sport shooters, collectors or movements linked to exhibitions.
Article 18 states that Member States need to take all relevant considerations and obligations into account when deciding whether to grant an export authorisation. This is aimed to prevent the circumvention of arms embargos and other security concerns.
Article 19 establishes the grounds for a Member States to refuse an export authorisation, the requirement to check ECRIS and the Schengen Information System, the obligation to communicate refusals using the system mentioned in Article 30 and the obligation to check this same system before granting an export authorisation. Furthermore, it also establishes that Member States need to annually check the conditions of authorisations. This provision aims to prevent the misuse of export authorisations.
Article 20 states that exporters need to provide proof of the receipt of the dispatched shipment within two months and states, which steps need to be taken when these documents are absent. This provision is introduced to check if an export was indeed imported in the country as declared on the export authorisation. This is aimed to deter diversion of firearms.
Article 21 states that Member States will carry out post-shipment checks in case of suspicion and that these checks may be carried out by a third party. This provision addresses the risk of diversion after export.
Chapter V: Supervision and controls (Articles 22 – 25)
This chapter introduces many new provisions. Article 22 focuses on competences and responsibilities for the implementation of the Regulation. It establishes that the overall enforcement is the responsibility of the competent authorities and that customs authorities are responsible for controls based on risk analysis. This provision clarifies the different roles of the competent national authorities in implementing the Regulation.
Article 23 establishes the exchange of information and cooperation among the different authorities. This provision aims to establish a better link between customs and competent licensing authorities.
Article 24 states the obligations for the importer or exporter to provide proof of authorisation when completing customs formalities. Furthermore, it also states that Member States can suspend the process of import or export for a period of 10 working days. This provision aims to facilitate the customs checks and the risk assessment.
Article 25 describes the requirements of customs following the results of controls. When an illegal shipment is discovered, it states that customs must inform the competent authorities. It states which information needs to be shared through Europol’s Secure Information Exchange Network Application (SIENA), in case of suspicion of trafficking and seizures. This provision is important to facilitate the exchange of information regarding seizures of firearms related to import and export.
The legislative proposal increases the digitalisation and administrative cooperation substantially. Article 26 establishes the obligation for Member States to keep the information relating to firearms, their essential components and ammunition for not less than 20 years. This is designed to facilitate the traceability of firearms.
Article 27 states that Member States need to submit annual statistics to the Commission, and it establishes the content of this data. This provision will allow for a constant follow-up of the trends regarding import and export. In the long term this will allow for the detection of threats and will support policy development.
Article 28 states the creation of an electronic licensing system and its interconnection to the EU Single Window Environment for Customs in order to facilitate the exchange of information between customs and competent authorities but also to facilitate the procedure to apply for an import or export authorisation. This provision establishes the digitalisation of the procedures, which will decrease the administrative burden for economic operators and competent national authorities. The registration of economic operators and natural persons in the electronic licensing system will be required only in case they need to request import or export authorisations. Consequently, individual firearms owners benefitting from administrative simplifications provided for in Articles 10 and 17, such as hunters, sport shooters or collectors falling under the exemption from import and export authorisations, will not be required to register in the system.
Article 29 describes the creation of a secure system to exchange information about refusals to grant an import or export authorisation. This provision will allow competent licensing authorities to detect individuals shopping around in the EU for an import or export authorisation.
Article 30 states that Member States shall take measures to ensure that their authorisation procedures are secure.
Article 31 states that Member States shall take necessary measures to enable their competent authorities to gather information and establish import and export controls in order to ensure proper application of the Regulation.
Article 32 states that Member States shall lay down rules on penalties applicable to infringements of this Regulation.
Article 33 establishes the Imports and Exports Coordination Group, and states who needs to be represented and the tasks of this Group.
Article 34 states the obligations of the Member States in informing the Commission of the adoption measures for this Regulation and in informing the other Member States and the Commission on the responsible competent national authorities responsible. It also establishes the timing for the review of the implementation of the Regulation.
Article 35 empowers the Commission to adopt delegated acts for a number of topics. Article 36 sets the procedures for the adoption of these delegated acts. Article 37 sets the procedures for the adoption of the implementing acts.
Article 38 sets out the obligations during the transitional period before the electronic licensing system referred to in Article 28 and the system to exchange information on refusals to grant import and export authorisation referred to in Article 29 are established.
Article 39 establishes the repeal of Regulation (EU) 258/2012 and Article 40 establishes the entry into force of the Regulation.
Annexes to this Regulation.
Annex I lists the firearms, their essential components, ammunition and alarm and signal weapons together with the combined nomenclature (CN) codes of goods 20 which are subject to this Regulation. Annex II provides the template for the import authorisation form. Annex III provides the template for the export authorisation form. Annex IV lists the information which needs to be contained in the end-user certificate, and Annex V contains a correlation table.
(EU) No 258/2012 (adapted)
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