# EUR-Lex - 52013PC0273 - EN

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# 52013PC0273

**Proposal for a COUNCIL DECISION authorising Member States to sign, in the interests of the European Union, the Arms Trade Treaty /* COM/2013/0273 final - 2013/0146 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

1.1
Introduction

UN Resolution 61/89, adopted in 2006,
initiated the process for developing a Treaty to regulate the international
trade in conventional weapons, the so-called Arms Trade Treaty (ATT). The
objective was to achieve a legally binding Treaty making the legal trade in
conventional arms more responsible, by setting high common international
standards on imports, exports and transfers.

Intensive preparatory
work was carried out during 2007 and 2009, followed by a First United Nations
Conference on the ATT held in New York from 2 to 27 July 2012. Although the
Conference failed to reach a consensus, it delivered a first draft text.

At the last UN Conference, held in March
2013, this draft Treaty was revised, but still no consensus could be reached
with three States rejecting the Chairs' proposal. The Treaty was finally adopted
by qualified majority on 2 April 2013. The majority of UN Members agreed on 3
June 2013 as a designated date for opening the signature of the Treaty.

1.2 EU
Competence

In accordance with the rules on external
competence as laid down in Article 3(2) of the Treaty on the Functioning of the
European Union (TFEU), the ATT concerns matters that fall under Union exclusive
competence.

The ATT provides, inter alia, for
measures (such as import and export controls), which fall within the scope of
the Union's Common Commercial Policy.
In this domain, ATT addresses areas of Union law where the degree of regulation
has already reached an advanced stage. Moreover, the following
EU-secondary legislation related to the internal market is also of relevance:
a) Council Directive 2009/43/EC of 6 May 2009 simplifying terms and conditions
of transfers of defence-related products within the Community, b) Council
Directive 91/477/EEC of 18 June 1991 on control of the acquisition and
possession of weapons, c) 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 (UN Firearms
Protocol), and establishing export authorisation, and import and transit
measures for firearms, their parts and components and ammunition.

As the ATT concerns matters of exclusive EU
competence, Member States are not in a position to decide autonomously on the
signature of the Treaty. They can only do it, in the interest of the Union, after authorisation by the Council upon a proposal by the Commission.

1.3 Details and
Scope of the ATT

The purpose of the ATT is to contribute to
international and regional peace, security and stability by regulating the international
trade in conventional arms and eradicating the illicit arms trade. The ATT
creates standards for transfers of conventional weapons and requires State
Parties to review all arms exports to ensure conventional arms and munitions
will not be used inter alia in Human Rights abuses, terrorism and violations of
Humanitarian law.

The ATT provides for the assessment of arms
transfers and measures to prevent the diversion of conventional arms from the
importing and exporting States. In addition, it enhances transparency in arms
trading by encouraging record keeping and reporting to the Secretariat and
other State Parties. The provisions of the ATT cover conventional arms of the
following categories: battle tanks, armoured combat vehicles, large-calibre artillery
systems, combat aircraft, attack helicopters, warships, missiles and missile
launchers and small arms and light weapons. The Treaty also covers the related ammunition/
munitions and parts and components.

1.4
Implications for the acquis communautaire

The ATT may affect or alter the scope of common rules adopted by the
European Union. As a result, the
Council has established, in the Annex to its Decision .../2013 authorising the
Commission to negotiate the ATT on those matters falling under the competence
of the Union, the following negotiating directives:

(1)
The Arms Trade Treaty shall not contain any
provision preventing Member States to apply:

(a)
Council Directive 91/477/EEC of 18 June 1991 on
control of the acquisition and possession of weapons, as amended;

(b)
Council Directive 93/15/EEC of 5 April 1993 on
the harmonization of the provisions relating to the placing on the market and
supervision of explosives for civil uses, as amended;

(c)
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, as amended.

(2)
The Arms Trade Treaty shall contain no provision
restricting the free movement of goods, persons, services and capital within
the Union's internal market, unless the restriction is specifically justified
by Articles 36, 45(3), 52(1), 65, or 346 TFEU.

(3)
Any measures provided in the Treaty which
restrict exports or imports from/into the Union, or transit through the
territory of the Union shall be compatible with any applicable provisions of
Union law, including in particular:

(a)
Council Regulation (EC) No 260/2009 of 26
February 2009, on the common rules for imports;

(b)
Council Regulation (EC) No 1061/2009, of 19
October 2009, establishing common rules for exports;

(c)
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 (UN Firearms
Protocol), and establishing export authorisation, and import and transit
measures for firearms, their parts and components and ammunition and

(d)
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, as amended.

These various European Union legal acts are
part of the acquis and it is therefore essential that they are not put
in question by the adoption of the ATT. In the absence of a RIO clause in the
Treaty, it is particularly important to ensure that the internal market
legislation has been safeguarded.

Accordingly, a detailed analysis was made,
in line with the Council negotiating directives on these questions, and concluded
that the provisions of the ATT (Articles 6, 7, 9, 26) ensure that the ATT is
compatible with the acquis. In any case, any potential problem of
compatibility could be addressed through article 26 (1). This article foresees
that the implementation of the Treaty shall not prejudice obligations
undertaken by States Parties with regard to existing or future international
agreements, to which they are parties, where those obligations are consistent
with this Treaty.

The European Union cannot become a party to
the ATT, as the current text includes only State Parties. However, the ATT
allows for amendments at a later stage and the European Union may become an ATT
party subject to a three quarters majority vote of the State Parties.

1.5 Signing the
Treaty

The European Union as such cannot sign the
ATT. However, as the ATT falls partly within the competence of the Union and partly within that of the Member States, it is necessary that the Union
institutions and the Member States take all the measures to cooperate in
signing the ATT and to ensure the implementation of the commitments resulting
from that Treaty.

In view of the intention of the Member
States to sign the ATT on June 3, 2013, it is necessary to give priority to the
preparation and adoption of a Council Decision authorising Member States to
sign the ATT. Once it is adopted, the Commission will propose a second Council
Decision, on which the European Parliament has to give its consent, authorising
Member States to ratify the Treaty.

1.6 Conclusion

It is vital to
fill the gap of the unregulated trade of conventional arms at an international
level and to assist the development of peace-building and humanitarian efforts.
The ATT, by establishing common legally binding standards for the import,
export and transfer of conventional arms, makes the arms trade more responsible and transparent, an
objective shared by the European Parliament, the Council and the Commission.
It has the potential to reinforce international peace
and security at global level. The illegal, or poorly regulated, trade in
conventional arms costs lives – more than 740,000 men, women and children die
each year as a result of armed violence. The swift entry into force of the ATT
is thus of utmost importance and it is therefore essential for Member States to
sign the Treaty on June 3 2013, at the Solemn Ceremony.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

Not applicable.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

Article 1

Due to the impossibility of the EU to
become party to the Treaty, the Article authorises Member States to sign the
current Treaty on a subject that concerns matters of exclusive competence of
the Union.

Article 2

The Article encourages EU Member States to
sign the Treaty, if possible, on the specified date. As advocated by many
Member States, signing on the said date is an important signal to underline the
commitment of the EU and its Member States to implement the ATT as soon as
possible. Article 20 of the Arms Trade Treaty requires fifty States to ratify
the Treaty in order for it to be entered into force. The signing of the Treaty
by all Member States would therefore constitute an important step towards this
aim.

Article 3

The purpose of the decision is to authorise
the Member States to be bound by the Treaty and so the decision is addressed to
them.

4.           BUDGETARY IMPLICATION

None

2013/0146 (NLE)

Proposal for a

COUNCIL DECISION

authorising Member States to sign, in the
interests of the European Union, the Arms Trade Treaty

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 114 and 207(3) in conjunction with Article 218(5) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       On
11 March 2013 the Council authorised the Commission to negotiate the Arms Trade
Treaty in the framework of the United Nations on those matters coming under the
exclusive competence of the Union.

(2)       On
2 April 2013 the General Assembly of the United Nations adopted the text of the
Arms Trade Treaty[1].
The General Assembly also invited State Parties to open the signing of the
Treaty with a Solemn Ceremony on 3 June 2013.

(3)       The
object of this Treaty is to provide the highest possible common international
standards for regulating the international trade in conventional arms and to
prevent and eradicate illicit trafficking in conventional arms. Member States expressed their satisfaction for the outcome of the
negotiations and their willingness to urgently proceed to the signature of the
Treaty.

(4)       The
provisions of the Treaty fall under the exclusive competence of the Union concerning the Common Commercial Policy and the Internal Market rules for the
transfer of conventional arms and explosives.

(5)       The
European Union cannot sign the Treaty, as only States can be parties thereto.

(6)       Therefore,
in accordance with Article 2(1) TFEU, the Council should authorise Member
States to sign the Treaty.

HAS ADOPTED THIS DECISION:

Article 1

Member States are hereby authorised to sign
the Arms Trade Treaty.

Article 2

Member States are encouraged to sign the
Arms Trade Treaty at the Solemn Ceremony in New York, on 3 June 2013, or at the
earliest possible date.

Article 3

This Decision is addressed to the Member
States.

Done at Brussels,

For
the Council

The
President

[1]               A/CONF.217/2013/L.3