# EUR-Lex - 52013PC0154 - EN

*|*

# 52013PC0154

**Proposal for a COUNCIL DECISION on the conclusion, on behalf of the European Union, of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime. /* COM/2013/0154 final - 2013/0083 (NLE) */**

			*

			*

EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Grounds for and objectives of the
proposal

In its resolution 53/111 of 9 December
1998, the United Nations' General Assembly (UNGA) decided to establish an
open-ended intergovernmental ad-hoc committee charged with drawing up a
Convention against transnational organised crime (UNTOC), supplemented by three
Protocols covering the following areas:

·
Prevention, suppression and punishment
trafficking in persons, especially women and children (Trafficking Protocol);

·
Smuggling of migrants by land, air and sea
(Smuggling Protocol) and

·
Illicit manufacturing of and trafficking in
firearms, their parts and components and ammunition (Firearms Protocol).

The first formal session of the ad-hoc
committee took place in Vienna in January 1999. In 2000 the Council authorised
the Commission to negotiate the UNTOC and 'United Nations Firearms Protocol'
(UNFP) on behalf of the European Community[1]
in addition to the other Protocols.

The Commission actively participated in the
UN negotiations in Vienna, in close cooperation with its Member States and non-EU G8 countries. Negotiations on the UNTOC were completed in July 2000 while
finalisation of the Smuggling and Trafficking Protocols took until October
2000. The UNGA adopted these three instruments at its 55th session on 15
November 2000 and opened them for signature. Negotiations on the UNFP lasted
half a year longer (until May 2001) and this instrument was adopted by the UNGA
at its 55th session on 31 May 2001[2]
and thereafter opened for signature.

On 12 December 2000, in Palermo, the
European Community along with all EU Member States formally signed these three
instruments. Authorisation to sign the UNFP was given by the Council in October
2001[3] and this instrument was
formally signed by the European Community at the United Nations Headquarters in
  New York on 16 January 2002.

The Union approved the conclusion of the
UNTOC in April 2004,[4]
and the Smuggling and Trafficking Protocols in July 2006.

The conclusion of the UNFP was left for a later
stage because it was considered that the Protocol comprised provisions requiring
the adoption of new legislation and amendments to existing one. Those
provisions would affect Union rules on record-keeping, marking of firearms,
deactivation of firearms, requirements for export, import and transit licensing
or authorisation systems, strengthening of controls at export points and
brokering activities.

In 2005, the Commission published a
Communication on measures for ensuring greater security of explosives,
detonators, bomb-making equipment and firearms in the European Union[5] . Directive 2008/51/EC amending Council Directive 91/477 ECC of 18
June 1991 on control of the acquisition and possession of weapons and
Regulation (EU) n.258/2012 implementing art.10 of the UN Firearms Protocol and
establishing export authorisation, and import and transit measures for
firearms, their parts and components and ammunition represent the concrete
follow-up to this Communication

The UNFP entered into force on 3 July 2005.
To date, 18 EU Member States have signed it and 16 Member States are
contracting parties, which includes 12 Member States that have ratified (Belgium,
Bulgaria, Cyprus, Estonia, Italy, Lithuania, Poland, Slovakia, Slovenia, Portugal,
Sweden and Finland) and four Member States that have acceded to it (Spain, Latvia,
Netherlands and Romania) .

General context

The Council and Commission Action Plan
implementing The Hague Programme on strengthening freedom, security and justice
in the European Union[6]
listed among its relevant actions a proposal on the conclusion - on behalf of
the European Community - of the UNFP. Its successor the Stockholm Programme[7] highlighted the trafficking in
arms as one of the illegal activities that continue to threaten the internal
security of the European Union and reaffirmed that the Union should continue to
promote ratification of international conventions (and their Protocols) in
particular those developed under the auspices of the United Nations. Firearms'
trafficking was also cited in the Internal Security Strategy[8] as one of the forms of
organised crime which the European Union needed to tackle.

Existing provisions in the area addressed
by the proposal

Several EU legal acts have been adopted
aiming at facilitating and eliminating barriers for the transfers of
conventional arms within the internal market or aiming at regulating the
exports of conventional arms to third countries:

·
Council Directive 91/477/EEC of 18 June 1991 on
control of the acquisition and possession of weapons, as amended.

·
On 12/13 June 2007 the Council adopted a
Recommendation on a standard procedure in Member States for cross-border
enquiries by police authorities in investigating supply channels for seized or
recovered crime-related firearms, which – also through use of its annexed
handbook - will improve tracing activities and law enforcement cooperation in
the field.

·
Directive 2008/51/EC of 21 May 2008 amending Council
Directive 91/477/EEC of 18 June 1991 on control of the acquisition and
possession of weapons in order to integrate the appropriate provisions required
by the UNFP as regards intra-European Union transfers of weapons[9].

·
Directive 2009/43/EC of the European Parliament
and the Council sets the rules and procedures applicable to the intra-community
transfers of defence-related products. In its Article 4.1 it provides that 'no
further authorisation by other Member States shall be required for the passage
through Member States or for the entrance onto the territory of the Member State where the recipient of defence-related products is located.

·
On 8 March 2012, the Council adopted Regulation
258/2012 to combat illicit arms trafficking through improved tracing and
control of exports of civilian firearms from the European Union, including
measures for imports and transit. This Regulation brings the EU legislation into
line with Article 10 of the UNFP.[10]
It is based on the principle that firearms and related items should not be
transferred between states without the knowledge and consent of all states involved.
It does not apply to firearms intended for military purposes. It only addresses
trade with and transfers from or to countries outside the European Union.

Consistency with the other policies and
objectives of the Union

The conclusion of the UNFP by the European
Union is consistent with the current EU policies on measures to counter
transnational crimes, to strengthen the fight against illicit trafficking in
firearms including their exports control and tracing and to reduce the
proliferation and spread of small arms around the world.

2.           RESULTS OF CONSULTATION WITH INTERESTED
PARTIES AND IMPACT ASSESSMENT

Extensive
consultations of different stakeholders have been carried out in parallel to the
adoption of the European Union laws aiming at adapting Union law to the
relevant provisions of the Protocol. An additional Impact Assessment is not
required because this proposal represents the final step in fulfilling an
international obligation, and Union law already complies with the standards set
out in the Protocol.

3.           LEGAL ELEMENTS OF THE PROPOSAL

Summary of the proposed action

This proposal contains a first Article that
approves the Protocol on behalf of the European Union. The second Article
authorises the President of the Council to designate the person empowered to
deposit, on behalf of the European Union, the instrument of approval. Annex I
comprises the declaration of the extent of the European Union's competence with
respect to matters governed by the Protocol, which has to be deposited together
with the instrument of approval (Art. 17 (3) Firearms Protocol).

The Protocol promotes 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. The text contains provisions to:

·
Maintain detailed records on the import, export
and in-transit movements of firearms;

·
Adopt an international system for marking
firearms at the time of manufacture and each time they are imported;

·
Establish a harmonised licensing system
governing the import, export, in-transit movement and re-export of firearms;

·
Prevent the theft, loss or diversion of firearms
through the strengthening of export controls, export points and border
controls;

·
Exchange information regarding authorised
producers, dealers, importers and exporters, the routes used by illicit
traffickers, best practice in combating trafficking in order to enhance states'
ability to prevent, detect and investigate illicit trafficking in firearms

Legal basis

The Protocol covers issues coming under the
competence of the Union, because they are within the scope of the common
commercial policy and because the conclusion of the UNFP is likely to affect EU
legal acts or alter their scope (article 3(2) TFEU). Accordingly
both Article 114 and Article 207 of the TFEU, are the substantive legal basis
for this decision.

4.           BUDGETARY IMPLICATION

The proposal has no implication for the Union
budget.

5.           Conclusions

The UNFP is the first global instrument in
the fight against transnational organised crime and trafficking in firearms. It
sets out a very useful multilateral framework and a variety of important
minimum standards for all participating States.

The attached proposal for a Council
Decision constitutes the legal instrument for the conclusion of the UNFP by the
European Union on the legal basis of Articles 114 and 207
TFEU, in conjunction with 218(6)(a) thereof.

The Commission accordingly proposes that
the Council adopt the attached Decision.

2013/0083 (NLE)

Proposal for a

COUNCIL DECISION

on the conclusion, on behalf of the
European Union, of the Protocol against the Illicit Manufacturing of and
Trafficking in Firearms, Their Parts and Components and Ammunition,
supplementing the United Nations Convention against Transnational Organized
Crime.

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Articles 114 and 207, in
conjunction with and 218(6) (a) thereof;

Having regard
to the proposal from the Commission[11],

Having regard
to the consent of the European Parliament[12],

Whereas:

(1)       The elements of the Protocol
against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts
and Components and Ammunition ("the Protocol") which are covered by the
competences of the Union were negotiated by the Commission, with the approval
of the Council, on behalf of the Union.

(2)       In accordance with Council
Decision 2001/748/EC[13] the Protocol was signed on 16 January 2002, subject to its conclusion at a later date.

(3)       The conclusion of the United
Nations Convention against Transnational Organized Crime was approved on behalf
of the European Union by Council Decision 2004/579/EC of 29 April 2004[14] which is a condition for the
European Union to become a Party to the Protocol, pursuant to Article 37 (2) of
the Convention.

(4)       The Protocol provides for
measures falling within the scope of the Union's Common Commercial Policy.
Several European Union legal acts have been adopted aiming at facilitating and
eliminating barriers for the transfers of conventional arms within the internal
market or aiming at regulating the exports of arms to third countries.

(5)       A legally binding
instrument on the highest possible common international standards for the
transfer and control of arms concerns matters that fall under Union competence
because they are within the scope of the Common commercial policy or the
conclusion of the Protocol is likely to affect the abovementioned European
Union legal acts or alter their scope.

(6)       Insofar as the provisions
of the Protocol fall within the scope of competences conferred on the Union the agreement should be approved on behalf of the European Union,

(7)       The Union must, when
depositing the instrument of approval, also deposit a declaration on the extent
of the European Union’s competence with respect to matters governed by the
Protocol as required under Article 17 (3) of the Protocol,

(8)       The control of the
acquisition and possession of firearms in the Union as well as the formalities
for the movements of firearms within the Member States are regulated by Council
Directive 91/477/EEC amended by Directive 2008/51/EC of the European Parliament
and the Council,

(9)       The rules and procedures
applicable to the intra-community transfers of defence-related products are
regulated by Directive 2009/43/EC of the European Parliament and the Council.

HAS DECIDED AS FOLLOWS:

Article 1

The
Protocol against the Illicit Manufacturing of and Trafficking in Firearms,
Their Parts and Components and Ammunition, supplementing the United Nations
Convention against Transnational Organized Crime, is hereby approved on behalf
of the European Union.

The
 Union’s instrument of formal approval shall comprise a declaration of
competence according to Article 17 (3) of the Protocol as set out in Annex I.

Article 2

The President of the Council shall
designate the person empowered to proceed, on behalf of the European Union, to the
deposit of the instrument of approval provided for in
Article 17(3) of the Protocol, in order
to express the consent of the European Union to be bound by the Protocol.

Article 3

This Decision shall enter into force on [15].

Done at Brussels,

For
the Council

The
President

ANNEX I

Declaration
concerning the competence of the European Union with regard to matters governed
by the Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, Their Parts and Components and Ammunition, supplementing the United Nations
Convention against Transnational Organized Crime

Article 17 (3)
of the Protocol against the Illicit Manufacturing of and Trafficking in
Firearms, Their Parts and Components and Ammunition provides that the
instrument of ratification, acceptance or approval of a regional economic
integration organisation shall contain a declaration specifying the matters
governed by the Protocol in respect of which competence has been transferred to
the organisation by its Member States which are Parties to the Protocol.

The European
Union has exclusive competence over commercial policy. It also has shared
competence over rules for the achievement of the internal market, and exclusive
competence as regards provisions of the agreement which may affect or alter the
scope of common rules adopted by the European Union. The Union has adopted
rules as regards notably the fight against illicit manufacturing of and
trafficking in firearms, regulating standards and procedures on commercial
policy of the Member States concerning in particular record keeping, marking of
firearms, deactivation of firearms, requirements for exports, import and
transit licensing authorisation systems strengthening of controls at export
points and brokering activities.

The Protocol to
fight against the Illicit Manufacturing of and Trafficking in Firearms, Their
Parts and Components and Ammunition shall apply, with regard to the competences
transferred to the European Union, to the territories in which the Treaty on
the Functioning of the European Union is applied and under the conditions laid
down in that Treaty.

The scope and
the exercise of such Union competence are, by their nature, subject to
continuous development, and the Union will complete or amend this declaration,
if necessary, in accordance with Article 17 (3) of the Protocol.

[1]               Decision of 31 January 2000.

[2]               UN General Assembly Resolution A/RES/55/255.

[3]               Council Decision 2001/748/EC, OJ L 280 of 24.10.2001,
p.5.

[4]               Council Decision (2004/579/EC) of 29 April 2004 on
the conclusion, on behalf of the European Community, of the United Nations
Convention Against Transnational Organised Crime, OJ, L 261 of 6.8.2004, p. 69.

[5]               Communication on measures to
ensure greater security in explosives, detonators, bomb making equipment and
fire-arms of 18.07.2005; COM(2005) 329 final.

[6]               OJ C 198, 12.8.2005, point 4.2, International legal
Order, (o), p.20.

[7]               EU Council Document 17024/09, CO EUR-PREP 3 JAI 896
POLGEN 229 of 2 December 2009.

[8]               Commission Communication, 'The Internal security
strategy in action: Five steps towards a more secure Europe,' COM(2010) 673.

[9]               Directive 2008/51/CE published on the OJ L 179 of
8/7/2008); entered in force on 20 July 2008 (transposition was due by
28/07/2010).

[10]             Regulation (EU) n.258/2012 published on the OJ L94 of
the 30 March 2012.

[11]             OJ, p.

[12]             OJ, p.

[13]             OJ L 280 of 24.10.2001, p.5

[14]             OJ L 261 of 06.08.2004

[15]             The date of entry into force of the Decision will be
published in the Official Journal of the European Union by the General
Secretariat of the Council.