Considerations on 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 ... |
|---|---|
| document | COM(2022)480  |
| date | October 27, 2022 |
(1) A number of amendments are to be made to Regulation (EU) No 258/2012 of the European Parliament and of the Council 21 . In the interests of clarity, that Regulation should be recast.
(EU) No 258/2012 recital 1 (adapted)
(2) In accordance with Council Decision 2001/748/EC of 16 October 2001 concerning the signing on behalf of the European Community of the United Nations Protocol on the illicit manufacturing of and trafficking in firearms, their parts, components and ammunition, annexed to the Convention against transnational organised crime 22 , the Commission signed that the United Nations Protocol on against the illicit manufacturing of and trafficking in firearms, their parts, components and ammunition, annexed to the Convention against transnational organised crime ( hereinafter referred to as the ‘UN Firearms Protocol’) on behalf of the Community European Union on 16 January 2002.
(EU) No 258/2012 recital 2
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(3) The UN Firearms Protocol, the purpose of which is to promote, facilitate and strengthen cooperation among Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and essential components and ammunition, entered into force on 3 July 2005.
(EU) No 258/2012 recital 5 (adapted)
In its Communication of 18 July 2005 on measures to ensure greater security in explosives, detonators, bomb-making equipment and firearms (5), the Commission announced its intention to implement Article 10 of the UN Firearms Protocol as part of the measures which need to be taken in order for the Union to be in a position to conclude that Protocol.
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(4) In order to implement the UN Firearms Protocol, the Union adopted Regulation (EU) No 258/2012. The UN Firearms Protocol was ratified by the Union by Council Decision 2014/164/EU 23 .
(EU) No 258/2012 recital 6
(5) The UN Firearms Protocol requires Parties to put in place or improve administrative procedures or systems to exercise effective control over the manufacturing, marking, import and export of firearms.
(EU) No 258/2012 recital 8
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(6) This Regulation should not apply to transactions of firearms, their parts and essential components or ammunition that are intended specifically for military purposes destined for the armed forces . The measures to meet the requirements of Article 10 of the UN Firearms Protocol should be adapted to provide for simplified procedures for firearms for civilian use. Consequently, some facilitation with regard to authorisation for multiple shipments, transit measures and temporary admission and exports for lawful purposes should be ensured.
(EU) No 258/2012 recital 9 (adapted)
(7) This Regulation does not affect the application of Article 346 of the Treaty on the Functioning of the European Union, which refers to essential interests of the security of the Member States, nor has this Regulation any impact on Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence related products within the Community 24 , or on Council Directive 91/477/EEC of 18 June 1991 or Directive (EU) 2021/555 on control of the acquisition and possession of weapons. Moreover, the UN Firearms Protocol, and consequently this Regulation, do not apply to State-to-State transactions or to State transfers in cases where the application of the Protocol would prejudice the right of a State Party to take action in the interest of national security consistent with the Charter of the United Nations.
(EU) No 258/2012 recital 10
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(8) Directive 91/477/ECC EU 2021/555 addresses transfers of firearms for civilian use within the territory of the Union, while this Regulation focuses on measures in respect of import and export from the customs territory of the Union to or through third countries.
(EU) No 258/2012 recital 11 (adapted)
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(9) Firearms, their parts and essential components, ammunition and alarm and signal weapons when imported from third countries are subject to Union law and, in particular, to the requirements of Directive 91/477/ECC (EU) EU 2021/555.
(EU) No 258/2012 recital 17
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(10) This Regulation is without prejudice to the Union regime for the control of exports, transfer, brokering and transit of dual-use items established by Council Regulation (EC) No 428/2009 Regulation (EU) 2021/821 of the European Parliament and of the Council 25 .
(EU) No 258/2012 recital 18 (adapted)
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(11) This Regulation is should be consistent with the other relevant provisions on firearms, their parts, essential components and ammunition for military use, security strategies, illicit trafficking in small arms and light weapons and exports of military technology, including Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment 26 and Council Decision (CFSP) 2021/38 27 .
(EU) No 258/2012 recital 15 (adapted)
(12) The Union has adopted a body of customs rules, contained in Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (EU) No 952/2013 and in its implementing provisions as laid down in Commission Regulation (EEC) No 2454/93 the Commission Delegated Regulation (EU) 2015/2446 28 , Consideration should also be given to Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code), whose provisions are applicable in different phases according to Article 188 288 thereof of Regulation (EU) No 952/2013. Nothing in this Regulation constrains any powers under and pursuant to the Community Customs Code and its implementing provisions Regulation (EU) No 952/2013 and Commission Delegated Regulation (EU) 2015/2446 .
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(13) Multiple definitions are directly copied from Directive (EU) 2021/555 of the European Parliament and the Council 29 or from Regulation (EU) No 952/2013 of the European Parliament and of the Council 30 .
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(14) An oral declaration of a firearm is not possible in accordance with applicable customs legislation.
(15) The competent authorities should receive information on the use of ATA Carnet. The ATA is a system allowing the free movement of goods across frontiers and their temporary admission into a Customs territory with relief from duties and taxes. The goods are covered by a single document known as the ATA carnet that is secured by an international guarantee system. This simplification of customs formalities should not prevent transparency.
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(16) Firearms, their essential components and ammunition should only be released for free circulation if they are properly marked pursuant to the Firearms Directive. Pending this marking, importers should place the firearms under another customs regime, such as customs warehousing or free zones, during which they may implement the marking requirement, be it in their own premises or in other authorised premises, such as national test-benches or proof-houses, in line with Union customs legislation.
(17) When firearms and their essential components are not properly marked according to Article 8 of the UN Firearms Protocol or pursuant to the Firearms Directive, Member States may decide to destroy seized firearms at the expense of the importer.
(18) Deactivated firearms should only be released for free circulation if they are accompanied by the deactivation certificate and are marked pursuant to Article 5 of Implementing Regulation (EU) 2015/2403. Pending the reception of this certificate or correct marking, importers should place the deactivated firearms under another customs regime, such as customs warehousing or free zones, during which they may request the verifying authorities as appointed according to Article 15 of Directive (EU) 2021/555 to verify the deactivation and issue the certificate in accordance with Article 3 of Commission Implementing Regulation (EU) 2015/2403 31 .
(19) Only alarm and signal weapons complying with the standards of Commission Implementing Directive (EU) 2019/69 32 could be considered as alarm and signal weapons and not firearms. Devices, which may be easily converted into firearms should always be classified as firearms in accordance with customs nomenclature and dealt with as firearms by customs authorities. To avoid risks of diversion, it is necessary to ensure the consistency of the practices of national customs authorities in the classification of devices declared as alarm and signal weapons upon import.
(20) Due to the high risk of illicit manufacturing of firearms from imported unfinished and unmarked products, only duly licensed arms dealers and brokers should be authorised to import semi-finished firearms and essential components.
(21) The checks of the criminal record of the applicant for import authorisations in the European Criminal Records Information System (ECRIS) established by Council Framework Decision 2009/315/JHA 33 should be as stringent as for export authorisations. Competent authorities should notably check whether the imported firearms are registered as lost, stolen or otherwise sought for seizure in the Schengen Information System and in Interpol’s iARMS database.
(22) A criminal record concerning conduct constituting an offence listed in Article 2(2) of Council Framework Decision 2002/584/JHA 34 should be a reason to prohibit the import of firearms, their essential components and ammunition
(23) The information related to firearms declared for temporary admission should be clearly spelled out, to enable customs and competent authorities to proceed efficiently with the discharge and limit the risk of firearms remaining illegally on the customs territory of the Union.
(24) In order to facilitate administrative facilitation, the customs declaration for temporary admission and re-export or temporary export and re-import should serve as an import or export authorisation for temporary admission and re-export or re-import. Consequently, firearms owners benefitting in specific cases from administrative simplifications will be exempt from import and export authorisations.
(25) Due to the risks of diversion of firearms during the external transit in the Union, their essential components, ammunition or alarm and signal weapons originating from non-EU countries and destined to another non-EU country, customs authorities and competent authorities should expressly authorise such external transit on the customs territory of the Union before they take place on the customs territory of the Union.
(26) In order to improve legal certainty and predictability, the consent of the third country of transit, should be considered as given, if no objections to the transit have been received within 20 working days. The decision of Member States to require express consent should be transparent for all economic operators.
(27) It is necessary to unify the rules on evidence of import in the third country of destination. Therefore, exporters should have to provide to competent authority, which delivered the export authorisation, proof of the receipt of the dispatched shipment of firearms, essential components or ammunition in the third country of import, which should notably be ensured by producing the relevant customs importation documents.
(28) Exporters should be able to benefit from an export authorisation valid for a maximum of three years, including if it is covered by several successive short-term import authorisations issued by importing non-EU countries.
(29) It is necessary to ensure that the conditions of export authorisations continue to be met throughout the duration of the authorisation, as it is the case for authorisations to possess or acquire a firearm inside the European Union pursuant to Directive (EU) 2021/555.
(30) To avoid risks of diversion while limiting the administrative burden, it is necessary to investigate suspicious situations in which Member States should request confirmation of receipt by the authorities of the third country of destination.
(31) It is necessary to clarify the responsibilities of competent authorities with respect to post-shipment checks. The administrative burden created by such checks for Member States may justify the application of article 20 of Council Regulation (EC) No 515/97 35 . It also requires the possibility to entrust third parties to carry out the post-shipment checks in their name, notably through the implementation of Council Decision (CFSP) 2019/2191 36 .
(32) Member States should provide access to the European Criminal Records Information System (ECRIS) to the competent authorities for the purpose of the implementation of this Regulation.
(33) Article 47 of Regulation (EU) No 2018/1862 of the European Parliament and the Council 37 establishes the access of registration services for firearms to the Second Generation Schengen Information System (SIS II). For the purpose of the implementation of this Regulation, customs authorities should be considered as registration services for firearms.
(34) In order to ensure the traceability of firearms, their essential components and ammunition, it is of the utmost importance that customs are granted access to the secure information exchange network application (SIENA) of Europol. Member States that apply the Regulation (EU) 2016/794 of the European Parliament and the Council 38 should grant this access.
(35) To enable the risk-based approach referred to in Article 22(6) for the firearms, their essential components, ammunition, and alarm and signal weapons listed in Annex I entering or leaving the Union market, and to ensure that checks are effective and performed in accordance with the requirements of this Regulation, the Commission, competent authorities and customs authorities shall cooperate closely and exchange information.
(EU) No 258/2012 recital 3
(36) In order to facilitate the tracing of firearms and efficiently combat illicit trafficking in firearms, their parts and essential components and ammunition, it is necessary to improve the exchange of information between Member States, in particular through the better use of existing communication channels
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(37) Pursuant to Article 128 of Regulation (EU) No 952/2013, the customs office of first entry should, before arrival of the firearms, their essential components, ammunition and alarm and signal weapons, ensure that a risk analysis is carried out for security and safety purposes, on the basis of the entry summary declaration, and should take the necessary measures based on the results of that risk analysis.
(EU) No 258/2012 recital 4
(38) Personal data must is to be processed in accordance with the rules laid down in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (3) and Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (4) Regulation (EU) 2016/679 of the European Parliament and of the Council 39 and Regulation (EU) 2018/1725 of the European Parliament and of the Council 40 .
(EU) No 258/2012 recital 12
(39) Consistency should be ensured with regard to record-keeping provisions in force under Union law.
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(40) To guarantee the effective flow of information, competent authorities should all be connected to the Customs Information System (the ‘CIS’) established by Regulation (EC) No 515/97, and the data produced or exchanged by competent authorities should be compatible and comparable.
(41) The Schengen Acquis notably includes a Decision of the Executive Committee of 28 April 1999 on the illegal trade in firearms (SCH/Com-ex (99) 10) 41 , pursuant to which Member States are to submit each year by 31 July their national annual data for the preceding year on illegal trade in firearms, on the basis of the joint table for compiling statistics. In addition, the Commission recommended in the 2018 that Member States should collect detailed statistics of the
preceding year about the number of authorisations, refusals, the quantities and values of firearms exports and imports, by origin or destination, and submit these statistics to the Commission 42 .
(42) The overall enforcement of this Regulation will be facilitated by the interconnection between the electronic licensing system established by this Regulation and the EU Single Window Environment for Customs established by [insert corresponding title and all the information in the footnote as soon as it is adopted]. The electronic licencing system will provide for a number of features, including registration of economic operators and natural persons, who are authorised according to the Firearms Directive to manufacture, acquire, possess or trade firearms, their essential components, ammunition or alarm and signal weapons. They will need to register before they request import or export authorisations. Consequently, firearms owners benefitting from administrative simplifications will not be required to register in the system.
(EU) No 258/2012 recital 13
(43) In order to ensure that this Regulation is properly applied, Member States should take measures giving the competent authorities appropriate powers.
(EU) No 258/2012 recital 7
(44) Compliance with the UN Firearms Protocol also requires that illicit manufacture of or trafficking in firearms, their parts and essential components and ammunition be established as criminal offences, and that measures be taken to enable the confiscation of items so manufactured or trafficked.
(EU) No 258/2012 recital 16
(45) Member States should lay down rules on penalties applicable to infringements of this Regulation and ensure that they are implemented. Those penalties should be effective, proportionate and dissuasive.
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(46) The whistle-blower-protection regime put in place with Directive (EU) 2019/1937 of the European Parliament and of the Council 43 , should also apply to persons who report breaches of rules linked to imports and exports of firearms.
(EU) No 258/2012 recital 14
(adapted)
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(47) In order to set out the technical characteristics of semi-finished firearms and essential components, to amend Annex II and III to this Regulation and to maintain the list of firearms, their parts and essential components and, ammunition and alarm and signal weapons for which an authorisation is required under this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union, in respect of aligning Annex I to this Regulation to Annex I to Council Regulation (EEC) No 2658/87 44 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, and to Annex I to Directive 91/477/EEC (EU) 2021/555 and of setting out the technical characteristics of semi-finished firearms and essential components and of adapting Annex II and III to this Regulation to the digitalisation and changes in customs procedures should be delegated to the Commission. It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making 45 . In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
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(48) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers in accordance with Article 291 of the Treaty on the Functioning of the European Union should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 46
(EU) No 258/2012 recital 19
(49) The Commission and the Member States should inform each other of the measures taken under this Regulation and of other relevant information at their disposal in connection with this Regulation.
(EU) No 258/2012 recital 20 (adapted)
(50) This Regulation does should not prevent the Member States from applying their constitutional rules relating to public access to official documents, taking into account Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents 47 .
(EU) No 258/2012 (adapted)
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