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 | December 19, 2024 |
| (2) | In accordance with Council Decision 2001/748/EC (3) the Commission signed 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 (4) (the ‘UN Firearms Protocol’) on behalf of the European Union on 16 January 2002. |
| (3) | The UN Firearms Protocol, the purpose of which is to promote, facilitate and strengthen cooperation among States Parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, entered into force on 3 July 2005. |
| (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 (5). |
| (5) | States Parties to the UN Firearms Protocol are required to put in place or improve administrative procedures or systems to exercise effective control over the manufacturing, marking, import and export of firearms. |
| (6) | Neither the UN Firearms Protocol nor this Regulation applies to state-to-state transactions or to state transfers in cases where such application 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. |
| (7) | This Regulation does not affect the application of Article 346 of the Treaty on the Functioning of the European Union (TFEU), which refers to essential interests of the security of the Member States connected with the production of or trade in arms, munitions and war material. Nevertheless, in accordance with the case-law of the Court of Justice of the European Union, that provision cannot be construed as conferring on Member States a power to depart from the provisions of the TFEU simply in reliance on those interests. Thus, Member States wishing to avail themselves of the derogation allowed under Article 346 TFEU, must show that such derogation is necessary in order to protect their essential security interests. This Regulation does not have any impact on Directive 2009/43/EC of the European Parliament and of the Council (6). |
| (8) | This Regulation should be consistent with the other relevant provisions on firearms, essential components, ammunition, alarm and signal weapons, deactivated firearms, semi-finished firearms, semi-finished essential components, and sound moderators 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 (7) and Council Decision (CFSP) 2021/38 (8). |
| (9) | This Regulation should not apply to transactions in firearms, essential components, ammunition, alarm and signal weapons, deactivated firearms, semi-finished firearms, semi-finished essential components, and sound moderators that, in the direct or indirect framework of contractual relationships or substantiated by end-user certificates, are destined for the armed forces, the police, or the public authorities. The exclusion should encompass transactions in such goods for development, testing, production, maintenance or presentation, involving private entities, when the final product is exclusively designed for or delivered to the armed forces, the police or the public authorities. The exclusion should not be applicable to Category C items sent to third countries, such as firearms, essential components, ammunition, alarm and signal weapons, semi-finished firearms, semi-finished essential components, or sound moderators. |
| (10) | This Regulation does not affect the application of Directive (EU) 2021/555 of the European Parliament and of the Council (9), which addresses transfers of firearms for civilian use within the territory of the Union. This Regulation applies only to imports into the customs territory of the Union, to transit and to exports from the customs territory of the Union. Therefore, firearms, essential components, ammunition, alarm and signal weapons and deactivated firearms released into free circulation in the customs territory of the Union are subject to the requirements of Directive (EU) 2021/555. In addition, this Regulation neither regulates the ownership of weapons nor any licensing of private persons, dealers or brokers. Directive (EU) 2021/555 establishes rules on acquisition and possession, which includes the licensing of private persons, dealers and brokers. |
| (11) | This Regulation is without prejudice to the Union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items established by Regulation (EU) 2021/821 of the European Parliament and of the Council (10). |
| (12) | This Regulation is without prejudice to the obligations of the Member States under restrictive measures adopted by a decision or a common position of the Council, or resulting from the obligations imposed by Council Common Position 2003/468/CFSP (11). |
| (13) | Nothing in this Regulation constrains any powers under and pursuant to Regulation (EU) No 952/2013 of the European Parliament and of Council (12) or Commission Delegated Regulation (EU) 2015/2446 (13). |
| (14) | Due to the nature of the goods covered by this Regulation, some customs simplifications, such as oral declarations, cannot be applied. |
| (15) | When firearms are not properly marked in accordance with Article 8 of the UN Firearms Protocol, Member States should be able to decide to destroy retained firearms at the expense of the importer. |
| (16) | Firearms, essential components and ammunition should be declared for release for free circulation only if they are properly marked in accordance with Directive (EU) 2021/555. Pending that marking, importers should place the firearms under another customs procedure, such as customs warehousing, inward processing or free zones, under which they should fulfil the marking requirement, be it in their own premises or in other authorised premises, such as national proof-houses, in line with Union customs legislation. However, persons whose business consists of the manufacture, trade, exchange, hiring out, repair, modification or conversion of firearms, essential components and ammunition should be allowed to mark firearms, essential components and ammunition, in accordance with Article 4 of Directive (EU) 2021/555, without delay after their release into free circulation, since that Directive allows this and prevents the placing of unmarked goods on the market. However, those persons should comply with the requirement set out in Article 8(1), point (b), of the UN Firearms Protocol, which indicates the need to add import markings to firearms. |
| (17) | Deactivated firearms should be declared for release for free circulation or temporary admission in cases of non-established persons so authorised by this Regulation, only if they are accompanied by the relevant deactivation certificate and are marked pursuant to Article 5 of Commission Implementing Regulation (EU) 2015/2403 (14). Pending the reception of that certificate or correct marking, importers should place the deactivated firearms under another customs procedure, such as customs warehousing or free zones, under which they should be able to request the authorities competent under Article 15 of Directive (EU) 2021/555 to verify the deactivation and issue the certificate in accordance with Article 3 of Implementing Regulation (EU) 2015/2403. |
| (18) | When granting import or export authorisations and when alarm and signal weapons are imported and exported, only alarm and signal weapons complying with the standards under Commission Implementing Directive (EU) 2019/69 (15) should be considered alarm and signal weapons rather than firearms. Devices which can be easily converted into firearms should always be classified as firearms in accordance with customs nomenclature, and be dealt with as firearms by customs authorities and competent 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. |
| (19) | An import authorisation should be necessary for the entry of firearms, essential components and ammunition into the customs territory of the Union. Due to the high risk of illicit manufacturing of firearms from imported unfinished and unmarked products, only duly licensed dealers and brokers should be authorised to import semi-finished firearms and semi-finished essential components. |
| (20) | Checks on the criminal records of applicants for import authorisations should be as stringent as they are in respect of applications for export authorisations, and Member States should obtain the information on criminal records through the system established by Council Framework Decision 2009/315/JHA (16). Competent authorities should check whether the firearms to be imported are registered as lost, stolen or otherwise sought for seizure through the Schengen Information System (SIS). Article 47 of Regulation (EU) 2018/1862 of the European Parliament and of the Council (17) establishes the access of registration services for firearms to SIS. For the purposes of the implementation of this Regulation, competent authorities should be considered as registration services for firearms. |
| (21) | A criminal record concerning conduct constituting an offence listed in Article 2(2) of Council Framework Decision 2002/584/JHA (18) should constitute a reason to prohibit the import of firearms, essential components and ammunition, alarm and signal weapons, deactivated firearms, semi-finished firearms, semi-finished essential components, and sound moderators. |
| (22) | It is possible for persons not established in the customs territory of the Union to obtain an authorisation to temporarily import and export firearms, essential components, ammunition, alarm and signal weapons, deactivated firearms, or sound moderators for the purposes of exhibitions, repairs, hunting, sport shooting or historical re-enactment. The information related to such firearms or other items declared for temporary admission should be clearly spelled out, to enable customs and other competent authorities to proceed efficiently with the discharge and limit the risk of such firearms or other items remaining illegally on the customs territory of the Union. |
| (23) | Article 10 of the UN Firearms Protocol allows States Parties to adopt simplified procedures for temporary import and export for verifiable lawful purposes. Consequently, this Regulation facilitates authorisations for multiple shipments, transit measures and temporary import and export for the purposes of exhibitions, evaluations, repairs, hunting, sport shooting and historical re-enactment. |
| (24) | There is a risk of diversion of firearms, essential components, ammunition, alarm and signal weapons, deactivated firearms, semi-finished firearms, semi-finished essential components, and sound moderators originating from a third country and entering and passing through the customs territory of the Union placed under a customs transit procedure with the final destination in a third country. Therefore, customs authorities and competent authorities should expressly authorise such transit on the customs territory of the Union before it takes place. |
| (25) | In order to limit the administrative burden, persons in the Union authorised to possess firearms should in specific cases be exempt from the requirement to obtain import and export authorisations. However, for reasons of security and to facilitate controls, traceability should be maintained in those cases. |
| (26) | In order to improve legal certainty and the predictability of movements, the consent of each Member State affected by the planned movement should be obtained before a Member State grants an import authorisation. A similar consent should be sought when the planned re-entry point of goods temporarily exported is located in the territory of a different Member State. |
| (27) | This Regulation enables Member States to adopt measures in the field of import provided that those measures are adopted in conformity with the TFEU. Such prohibitions or restrictions should not constitute a means of arbitrary discrimination or a disguised restriction on trade. The Commission should be informed if, as a result of unusual developments on the market, a Member State considers that protective measures might be necessary. This Regulation should lay down the conditions under which those measures should be authorised by the Commission. |
| (28) | It is necessary to clarify that a person that wishes to export firearms, essential components, ammunition, deactivated firearms, semi-finished firearms, semi-finished essential components, and sound moderators should hold an export authorisation. Eligibility to apply for such an authorisation should be limited to exporters allowed to possess, deal in or broker those goods in accordance with Directive (EU) 2021/555. |
| (29) | Persons exporting in the course of their business activities should be able to benefit from an export authorisation valid for a maximum of 3 years, including if it is covered by several successive short-term import authorisations issued by importing third countries. Additional Union general authorisations should be introduced in order to reduce the administrative burden on authorised economic operators for security and safety, except in respect of the most dangerous firearms. Member States should also be able to introduce national general export authorisations where they consider it necessary. |
| (30) | Before authorising an export, it is important to verify that the importing third country has authorised the corresponding import and that any third countries of transit do not have objections to the specific movement. 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. Decisions of Member States to require express consent need to be transparent for all economic operators. It should be the responsibility of the exporter to provide to the competent authorities the relevant documents. |
| (31) | It is necessary to harmonise the rules on evidence of import in the third country of destination. Therefore, persons exporting should be required to provide to the competent authority which issued the export authorisation, proof of the receipt of the dispatched shipment of firearms, essential components, ammunition, alarm and signal weapons, deactivated firearms, semi-finished firearms, semi-finished essential components, and sound moderators in the third country of import, which should in particular be ensured by producing the relevant customs importation documents. |
| (32) | When granting authorisations, Member States should respect the obligations with regard to restrictive measures imposed by decisions adopted by the Council or by a decision of the Organisation for Security and Cooperation in Europe (OSCE) or by a binding resolution of the Security Council of the United Nations, in particular as regards arms embargoes. To the extent that those international obligations are implemented in national law, it is appropriate to clarify that this Regulation does not prevent the application of that law. |
| (33) | Before authorising an export, it is important to verify that no other Member State has previously refused an essentially identical transaction. In order to facilitate that verification, Member States should exchange information on refusals. In addition to the electronic exchange of information about refusals, Member States should also check existing relevant databases, such as the conventional arms export database (COARM). |
| (34) | It is necessary to ensure that the conditions for granting an authorisation continue to be met throughout the duration of the authorisation, as is the case of authorisations pursuant to Directive (EU) 2021/555 to possess or acquire a firearm inside the Union. |
| (35) | Competent authorities should inform customs authorities of any annulment, suspension, modification or revocation of an authorisation. The obligation to make that information available should be without prejudice to any appeal procedure applicable under national law. |
| (36) | 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. If such confirmation of receipt cannot be obtained for any reason, that information should be recorded in the electronic licensing system for future reference. |
| (37) | It is necessary to clarify the responsibilities of competent authorities with respect to post-shipment checks. |
| (38) | For the purposes of this Regulation, in order to ensure the traceability of firearms, essential components, ammunition, alarm and signal weapons, deactivated firearms, semi-finished firearms, semi-finished essential components, and sound moderators, it is of the utmost importance that competent authorities be granted access to the Secure Information Exchange Network Application (SIENA) of the European Union Agency for Law Enforcement Cooperation (Europol). That access should be limited and proportionate to the purpose of fulfilling the obligations laid down in this Regulation. Member States that apply Regulation (EU) 2016/794 of the European Parliament and the Council (19) should grant that access. |
| (39) | To enable a risk-based assessment approach for the firearms, essential components, ammunition, alarm and signal weapons, deactivated firearms, semi-finished firearms, semi-finished essential components, and sound moderators 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 should cooperate closely and exchange information. |
| (40) | In order to facilitate the tracing of firearms and efficiently combat illicit trafficking in firearms, essential components, ammunition, alarm and signal weapons, deactivated firearms, semi-finished firearms, semi-finished essential components, and sound moderators, it is necessary to improve the exchange of information between Member States, in particular through the better use of existing communication channels as well as through the Firearms Imports and Exports Coordination Group and international cooperation. |
| (41) | Personal data are to be processed in accordance with the rules laid down in Regulations (EU) 2016/679 (20) and (EU) 2018/1725 (21) of the European Parliament and of the Council. |
| (42) | Consistency should be ensured with regard to record-keeping provisions in force under Union law. |
| (43) | The Schengen acquis includes in particular a Decision of the Executive Committee (SCH/Com-ex (99) 10) (22), 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, in its recommendation of 17 April 2018 on immediate steps to improve security of export, import and transit measures for firearms, their parts and essential components and ammunition, the Commission recommended 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 those statistics to the Commission. This Regulation should enable the Commission to collect those data directly from the electronic systems set up for the purpose of implementing this Regulation. The statistics should be anonymised and designed in such a way that it should not be possible to draw conclusions about specific dealers, even indirectly. |
| (44) | The Commission should compile the Member State data and publish them as part of an annual report by 31 October each year. The report should be made public and submitted to the European Parliament and the Council. |
| (45) | Before publication of the annual report, the Commission is to consult the Firearms Imports and Exports Coordination Group to verify that no commercially sensitive information was added to the draft report. |
| (46) | An electronic licensing system should be established to digitalise the procedures set out in this Regulation. It is important that a person entitled to request an authorisation be registered in that system before starting the application procedure. As the electronic licensing system is the technical basis for the implementation of this Regulation, it should be fully functioning as soon as possible. |
| (47) | Where Member States maintain their existing national electronic authorisation systems, the electronic licensing system established by this Regulation should be able to interconnect with those national electronic authorisation systems. Such interconnection should ensure the transfer of information on authorisations granted through the national electronic authorisation systems to the electronic licensing system. |
| (48) | The overall enforcement of this Regulation should be facilitated by the interconnection between the electronic licensing system established by this Regulation and the European Union Single Window Environment for Customs established by Regulation (EU) 2022/2399 of the European Parliament and of the Council (23) (the ‘EU Single Window Environment for Customs’). For that purpose and in accordance with Article 5(6) of Regulation (EU) 2022/2399, the Commission should amend Part A of the Annex to that Regulation. When goods are temporarily imported or exported using an ATA Carnet, set out in Appendix I to Annex A to the Convention relating to temporary admission (Istanbul Convention) (24), the competent authorities should receive information on the use of the ATA Carnet. Although that information cannot be exchanged automatically, insofar as the digital ATA Carnet is not applied by all contracting parties, further automation should be explored based on potential interoperability with the electronic system for the administration of ATA carnets, the e-ATA-system. |
| (49) | In order to ensure that this Regulation is properly applied, Member States should take measures giving the competent authorities appropriate powers. |
| (50) | Compliance with the UN Firearms Protocol also requires that illicit manufacture of and 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. |
| (51) | Member States should lay down the rules on penalties applicable to infringements of this Regulation and should take all measures necessary to ensure that they are implemented. Those penalties should be effective, proportionate and dissuasive. |
| (52) | The whistle-blower-protection regime put in place by Directive (EU) 2019/1937 of the European Parliament and of the Council (25) should also apply to persons who report breaches of rules linked to imports and exports of firearms. |
| (53) | In order to establish the Union general import authorisation and the Union general export authorisation for authorised economic operators for security and safety by specifying the format, use and geographical validity of those types of authorisations, to determine the part of the ATA carnet where the reference to the authorisation is to be indicated, to maintain the list of firearms, essential components, ammunition and alarm and signal weapons for which an authorisation is required under this Regulation, and to align Annex I to this Regulation to Annex I to Council Regulation (EEC) No 2658/87 (26) and to Annex I to Directive (EU) 2021/555, as well as to adapt Annexes II, III and IV to this Regulation to the digitalisation and changes in customs procedures, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission. It is of particular importance that the Commission carry 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 (27). 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. |
| (54) | In order to ensure uniform conditions for the implementation of this Regulation, implementing powers 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 (28). |
| (55) | 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. |
| (56) | In order to ensure uniform conditions for the implementation of technical characteristics of semi-finished firearms, semi-finished essential components, and sound moderators, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011. |
| (57) | In the case of national quantitative restrictions, authorisations granted by the Commission affect the territory only of a certain Member State. Therefore, considering the limited geographical scope of the restriction, as well as Article 2(3) of Regulation (EU) No 182/2011, it is justified that the Commission grant such authorisations by means of an implementing act in accordance with the advisory procedure set out in Article 4 of that Regulation. |
| (58) | This Regulation should not prevent 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 (29). |
| (59) | In accordance with the principle of proportionality, it is necessary and appropriate for the achievement of the basic objective of improving traceability, and thus the security of trade in firearms, without thereby unduly hampering such trade, to lay down rules on authorisations for the import, export and transit of civilian firearms. This Regulation does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with Article 5(4) of the Treaty on European Union, |