EN Official Journal of the European Union C 318/83

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons

COM(2006) 93 final — 2006/0031 (COD)

(2006/C 318/14)

On 7 July 2006 the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 26 July 2006. The rapporteur was Mr Pegado Liz.

At its 429th plenary session of 13 and 14 September 2006 (meeting of 13 September), the European Economic and Social Committee adopted the following opinion by 186 votes to seven, with 12 abstentions.

1. Gist of the Commission proposal

1.1 This proposal seeks to further the process of updating Directive 91/477/EEC of 18 June 1991 (1) which, following the 1984 Fontainebleau European Council, for the first time looked at the need for ‘effective rules enabling controls to be carried out within Member States on the acquisition and possession of firearms and on their transfer to another Member State’, in the light of the criteria set out in the Palermo Protocol supplementing the UN Convention against Transnational Organised Crime, which the Commission was authorised to sign on behalf of the European Community (2).

1.2 The proposal thus seeks to entrust the legal enforcement of the aforementioned Supplementing Protocol to an international convention, which the Commission signed on behalf of the Union. In other words, by following this approach, the Union is undertaking to tackle the issue at hand itself, thus making these measures directly binding on Member States, i.e. there is no need for them to opt to sign up to the protocol referred to above or to any Community recommendations on the matter, since this is already covered by Title V of the Treaty (3).

1.3 The following needs have been identified as overall objectives: — to harmonise European legislation on the matter; — to combat the illegal market in weapons designed for civilian use; and — to prevent legal weapons finding their way onto the illegal market.

1.4 Consequently, the proposal currently under examination proposes mechanisms which are binding on Member States and which aim to make the 1991 directive more coherent, effective and rapid with regard to the mechanisms and objectives set out therein.

1.5 Specifically, the proposal: a) updates the framework surrounding the concept of illicit manufacturing, using this as a basis for defining the different types of offences of illicit manufacturing, falsification and trafficking, for which there should be penalties proportionate to the harm they cause society; b) recommends instrumental measures for monitoring and tracing weapons, the best examples of which are marking them, and also rules on disabling/deactivating them; c) sets out rules and measures for greater control of certain activities related to the arms trade.

2. The political and social framework for the measure in the current international setting

2.1 Transnational crime is highly organised and is a by-product of today's high-risk societies, which are based on the globalisation of knowledge, communication and information.

2.1.1 Transnational crime also constitutes one of the most serious threats to the integrity of States and more generally, to the very democratic framework that hallmarks them. It could even, in extreme cases, take the shape of alternative and illegitimate forms of controlling the Community.

2.2 Within this form of crime and as a result of the multi-dimensional and highly varied nature of the risk, various types of criminal activity overlap and feed into one another.Terrorism and highly organised crime are closely linked to one another, and these are both closely linked to the trafficking of weapons and ammunition (4).

2.3 Estimates suggest that there are currently hundreds of millions of light weapons in circulation in the world, responsible for hundreds of thousands of deaths per year; of these fatalities, more than one half will occur in internal conflicts in various Asian and African countries. In financial terms, this is clearly a very lucrative business, but from the humanitarian point of view, it is devastating.

2.4 The Union's Member States must provide an appropriate and coherent response to this transnational situation. To this end, legislative solutions, both preventive and punitive, must be harmonised and must lead to integrated, common policies.

2.5 The subject of this proposal combines market rules with important issues of intra-Community security, a predominant value in any democratic society and one from which the Union is not and cannot be exempt. Security is, in fact, a prerequisite for the exercise of any freedom.

2.6 What is at issue here is quite simply drawing up requirements for bringing about a European area of freedom, security and justice for all citizens, a subject closely related to the third pillar of European integration. In addition to posing a threat to the integrity of the various Member States, trafficking in weapons is also a significant risk factor for the EU's internal affairs.

2.7 The Community had already felt the need to tackle this threat within its own borders, by adopting Council Directive 91/477/EEC of 18 June 1991. Subsequently, the EU Joint Action of 17 December 1998 (5) prompted the different Member States to introduce measures aimed at improving and stepping up weapons and ammunition control, an approach echoed in various annual reports that have since been published (6).

2.8 More recently, the United Nations too has focused its attention on the matter, and has even supported a number of measures in this field. Consequently, it set up a special committee (7) with the task of drawing up an international convention against transnational organised crime, which was adopted two years later in Palermo (8). This rapidly led to an understanding of the importance, in this context, of trafficking in firearms.

2.9 Subsequently, and leading up to the Vienna Process, the supplementary protocol to the aforementioned Convention on the illicit manufacturing of and trafficking in firearms, their parts, components and ammunition was born, open to all interested countries as of 1 September 2001; it has however experienced some delays in being signed and ratified by the EU Member States.

3. General comments

3.1 Legal base

3.1.1 Article 95 TEC provides sufficient authority for incorporating this directive into the Community legal order, since this is a measure relating to the operation of the internal market and is covered by the procedure set out in Article 251.

3.1.2 It is appropriate to use a directive in this case, especially taking into account the principle of the hierarchy of laws, and particularly given the type of legislation to be amended.

3.1.3 The Committee therefore supports the Commission initiative and endorses its legal basis, which it deems to be in keeping with the stated aims (9).

3.2 Gist of the proposal

3.2.1 In adopting the Supplementary Protocol to the United Nations Convention against Transnational Organised Crime, the Commission is correctly basing its approach on the fundamental principles enshrined in this protocol concerning the need to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts, components and ammunition, because of the threat that these activities pose to the welfare of the public at large and to their right to live in peace.

3.2.2 The Committee welcomes this concern and fully supports the Commission initiative.

3.2.3 The Committee would point out that this issue has been considered on several occasions by the European Parliament and has been the subject of a number of written questions to the Commission (10).

3.2.4 Furthermore, in its external relations, the Council has taken a particular interest in the need to assist third countries in drawing up appropriate legislation and regulations on the ownership, possession, use, sale and transfer of weapons and ammunition, as a means of ensuring peace and security and contributing to sustainable development (11).

3.2.5 There is clearly, however, also a close link between this issue and concerns about the fight against terrorism (12), money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds from crime (13), the supervision of explosives for civilian uses (14) and, in general, all measures combating gangsterism and organised crime.

3.2.6 In this regard, the Committee is not merely pleased with the Commission initiative; it welcomes it wholeheartedly, and hopes that the European Parliament and the Council will take it fully on board.

4. Specific comments

4.1 Article 1 of this proposal amends the following articles of Directive 91/477/EEC: — 1, with the addition of two new points; — 4, with new wording; — 16, with new wording; — Annex I with new wording from point a) and a new point.

4.1.1 All of the proposed amendments are supported by this Committee, insofar as they appropriately incorporate the provisions of the protocol on which they are based.

4.2 Article 2 sets out the arrangements that will be binding on Member States if the proposed directive is adopted, but leaves the transitional period open, despite its immediate entry into force (see Article 3).

4.2.1 Where this aspect is concerned, it is not thought that there is any need for a lengthy delay in transposing the directive once it has been adopted. In fact, the impact of thedirective on those it is designed to affect will basically depend on the legislative process, specifically criminal law, on how economic operators adjust to the new rules for entering the arms profession and on how registers of trading activity are organised. 12 to 18 months are deemed to be sufficient for this task.

4.3 With regard to classifying the illicit activities in question, existing comparative law in the Member States (15) could provide useful support for the totus comunitatae, and the relevant system of penalties could be discussed as soon as possible at the European Council.

4.4 It might also be worth looking at the need to specify that the concept of ‘illicit trafficking’ contained in the proposal should be viewed against the background of the fight against transnational organised crime, in such a way as to limit the application of criminal sanctions to situations that fall exclusively within the specific scope of the United Nations convention referred to above.

4.5 As regards the provision set out in No 3(c) of Annex I to the directive, on defining antique weapons or reproductions of such, the EESC urges the Commission to coordinate this at Community level.

4.6 To conclude, it might also be useful to refer to the use of weapons in hunting, sporting, or collectors' activities, because the primacy of security interests must also prevail in these areas, due to the nature — or rather the lethal nature — of the items in question. In fact, assessing the purpose of owning a weapon is simply a matter of the will to impart that information; here there is margin for misuses and abuses, which must be prevented as far as possible. Against this background, it should be recommended, along the broad lines set out in this proposal, that Member States be bound to require weapon owners to declare ownership, hold a permit or comply with another administrative procedure authorising the use and carrying of a weapon, which involves the national security organisations responsible for monitoring and control.

Brussels, 13 September 2006. The President of the European Economic and Social Committee Anne-Marie SIGMUND

(1) Council Directive 91/477/EEC of 18 July 1991 on control of the acquisition and possession of weapons (OJ L 256 of 13.9.1991, p. 51). EESC Opinion: Through what was then called the Section for Social, Family, Educational and Cultural Affairs and with Mr Van Dam as rapporteur, the EESC delivered its opinion on 17.12.1987 (OJ C 35, 8.2.1988, p.5), which was highly critical of the scope of the excessively limited measures adopted for controlling the movement of weapons from one Member State to another.

(2) Council Decision of 16 October 2001 (OJ L 280, 24.10.2001).

(3) In other words, as part of common external and security policy.

(4) The issue of the traceability of ammunition, whilst not falling within the specific scope of the Commission proposal, has already been partially addressed, in conjunction with the placing on the market and supervision of explosives for civil uses, in Directive 93/15/EEC of 5 April 1993 (OJ L 121, 15.05.1993, p.20, EESC Opinion — OJ C 313, 30.11.1992, p.13), amended by Regulation (EC) No 1882/2003 of 29 September 2003 (OJ L 284, 31.10.2003, p.1, EESC Opinion — OJ C 241, 07.10.2002, p.128), in Directive 2004/57/EC of 23 April 2004 (OJ L 127, 29.04.2004, p.73), in Commission Decision 2004/388/EC of 15 April 2004 (OJ L 120, 24.04.2004, p.43) and in the programme set out in the Commission Communication of 15 July 2005, on measures to ensure greater security in explosives, detonators, bomb-making equipment and fire-arms.

(5) Later included in the EU's June 1997 programme on the illicit trafficking of conventional weapons.

(6) For the years 2001 to 2003 see: OJ C 216, of 1.8.2001, p.1, OJ C 330, of 31.12.2002, p.1; and OJ C 312, of 22.12.2003, p.1.

(7) Under UN General Assembly Resolution 53/111, of 9 December 1998.

(8) Under Resolution 55.25 of 15 November 2000.

(9) A detailed discussion is warranted, however, of the grounds on which the Commission considers itself entitled to regulate matters of criminal law in its proposed amendment to Article 16 of Directive 91/477/EEC.

(10) Including in particular written questions: P-4193/97 by Maria Berger, MEP (OJ C 223/70, 17.7.1998); E-1135/01 by Christopher Huhne, MEP (OJ C 350 E/78, 11.12.2001); and E-1359/02 by Gerhard Schmid, MEP (OJ C 229 E/209, 26.9.2002.

(11) See Council Decision of 15 November 1999 on Cambodia, OJ L 294, 16.11.1999, p.5.

(12) Framework Decision on the fight against terrorism (COM(2001) 521 final, 19.9.2001) and EESC Opinion CESE 1171/2006.

(13) Framework Decision of 6 July 2001, OJ L 182, 5.7.2001.

(14) Directive 93/15/EEC of 5 April 1993, OJ L 121, 15.5.93, amended by Regulation (EC) 1882/2003 of 29.9.2003, OJ L 284, 31.10.2003.

(15) In Portugal, for example, the recent Law no 5/2006, of 23 February, already incorporates all the measures now being proposed.