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
Date: 2006-03-02
Institutions: European Commission
Subjects: EC Directive, arms control, fight against crime, free movement of goods, illicit trade, personal weapon, public safety

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 2.3.2006 
COM(2006) 93 final 

2006/0031 (COD) 

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 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

On  behalf  of  the  European  Community  (and  following  Council  authorisation  of  16  October 
20011),  the  Commission  signed  the  United  Nations  Protocol  on  the  illicit  manufacturing  of 
and trafficking in firearms, their parts components and ammunition (the “Firearms Protocol”, 
hereinafter referred to as “the Protocol”), annexed to the United Nations Convention against 
transnational organised crime2. Thanks to the inclusion of a deconnection clause, Community 
competence was preserved when adopting this international instrument. 

The  purpose  of  this  Protocol  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" (Article 2). It comprises 
a  number  of  articles  (21)  that  aim  essentially  to  "prevent  the  illicit  manufacturing  of  and 
trafficking  in  firearms,  their  parts  and  components  and  ammunition".  However,  some 
provisions  in  the  Protocol  entail  limited  technical  amendments,  specifically  to  the  Council 
Directive  of  18  June  1991  on  control  of  the  acquisition  and  possession  of  weapons,  even 
though the aim of the Protocol evidently differs from that of the Directive, which is applicable 
only  to  the  legal  trade  in  certain  types  of  weapons  (e.g.  excluding  military  weapons),  and 
solely in the context of the Internal Market. 

This  proposal  does  not,  therefore,  concern  the  aspects  of  the  Protocol  that  fall  outside  the 
scope  of  Directive  91/477,  such  as  the  import/export  arrangements  applied  by  the  Member 
States at the external borders of the EU.  

General context 

First of all, the very concepts of illicit manufacturing of and trafficking in firearms, their parts 
and components and ammunition should be specified in the Directive by using the definitions 
of these activities contained in the Protocol – Article 3 – in the aim, of course, of achieving 
legal clarity, certainty and coherence.  

The  fight  against  organised  crime  also  makes  the  tracing  of  firearms  particularly  important. 
The technical amendments outlined below aim to facilitate the tracing under Directive 91/477 
of the arms referred to therein. 

For instance, the principle of marking firearms at the time of manufacture – those which fall 
within the scope of the Directive of course – appears only indirectly in the second paragraph 
of  Article  4  of  Directive  91/477,  in  references  to  identification  particulars  that  must  be 
recorded in the dealers’ registers. In contrast, Article 8.1(a) of the Protocol clearly establishes 
a marking obligation ("marking of firearms"). This can be incorporated without modification 
into the Directive.  

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Published in the Official Journal of the European Communities, L 280 of 24 October 2001. 
http://untreaty.un.org/English/TreatyEvent2003/index.htm 

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Article 4 of the Directive should also include the instruction under 8.1.(c) of the Protocol to 
ensure  also  that  firearms  are  marked  at  the  time  of  transfer  from  government  stocks  to 
permanent civilian use. 

This Article of Directive 91/477 requires dealers (defined in the Directive as "any natural or 
legal  person  whose  trade  or  business  consists  wholly  or  partly  in  the  manufacture,  trade, 
exchange,  hiring  out,  repair  or  conversion  of  firearms"  –  Article  1(2))  to  conserve,  for  a 
period  of  at  least  five  years,  a  register  in  which  information  on  all  firearms  received  or 
disposed  of  by  him  is  recorded.  To  strengthen  the  security  aspect  of  the  Directive,  the 
minimum 10-year period specified by the Protocol (Article 7) for keeping the registers should 
be adopted. Furthermore, it must be stated that brokering activities, as mentioned in Article 15 
of the Protocol, fall within the definition of dealer given by the Directive. 

Article 5 of the Protocol provides that each State Party shall adopt such legislative and other 
measures as may be necessary to establish as criminal offences acts committed intentionally, 
in particular the illicit manufacturing of or trafficking in firearms. The language used in the 
Directive  to  describe  the  applicable  penalties  must  therefore  be  strengthened,  in  order  to 
increase their effectiveness.  

Furthermore,  Annex  I  to  Directive  91/477  (point  III  (a))  states  that  the  objects  which 
correspond to the definition of a firearm but which have been permanently rendered unfit for 
use  by  the  application  of  technical  procedures  will  not  be  considered  as  weapons  that  fall 
within the scope of the Directive. However, Article 9 of the Protocol sets out more extensive 
general principles for the deactivation of firearms that must be incorporated into the amended 
Directive.  

Nature of the proposed amendments 

The proposed amendments do not cover new problems in relation to the general economy of 
the  Directive.  They  merely  adapt  the  provisions  of  the  Directive  to  the  new  legal  context 
brought about by Community accession to the Protocol.  

Consistency with the other EU policies and objectives 

The  proposal  is  consistent  with  the  EU  policy  against  organised  crime  in  particular.  It  is 
entirely  in  keeping  with  the  Communication  from  the  Commission  on  "measures  to  ensure 
greater  security  in  explosives,  detonators  and  firearms"  –  COM(2005)  329  final  –  which 
states: "a technical modification of Directive 91/477 will be proposed by the Commission in 
2005, in order to integrate the appropriate provisions required by the Protocol as regards intra-
Community transfers of weapons concerned by the Directive".  

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENTS 

Consultation of stakeholders 

There is no need for consultation in this case, as it would amount to validating an international 
obligation of the Community. 

It should be remembered that the proposal affects only the technical aspects of the Directive; a 
technical  assessment  of  the  proposals  put  forward  was  provided  by  a  group  of  national 
experts, as explained below. 

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Collection and use of expertise 

Scientific/expertise domains concerned 

The  proposed  amendments  already  received  EU  approval  during  the  negotiations  on  the 
Protocol; this was a mixed agreement, negotiated in a dialogue between all the Member States 
and the Commission; they simply reflect the positions on the basis of which the Protocol was 
concluded. 

Methodology used 

Meeting of an informal group of national experts on the application of Directive 91/477 on 23 
May  2005,  to  examine  the  editorial  consequences  on  the  Directive  of  accession  to  the 
Protocol.  

Main organisations/experts consulted 

Representatives of the Ministries of Justice, of the Interior and of Defence. 

Summary of advice received and used 

The group deems it necessary to make the technical amendments proposed, especially as they 
ensue from an agreement (the Protocol) that has already been negotiated and concluded.  

Means used to make the expert advice publicly available 

The Protocol has been widely published (see references above) and the interested parties have 
not expressed any reservations.  

Impact assessment 

An  impact  assessment  is  not  necessary  for  simple  technical  amendments  ensuing  from  the 
Community’s international commitments, as established in the document "Impact assessment 
guidelines" (SEC(2005) 791 of 15 June 2005). 

Failure  to  incorporate  these  amendments  would  lead,  in  particular,  to  legal  uncertainty  for 
economic operators and a breach of the Community’s international obligations.  

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed measures 

To define, within the scope of application of the Directive, the notions of illicit manufacturing 
and  trafficking  of  firearms,  to  reaffirm  the  need  for  marking,  to  increase  the  period  for 
keeping registers prescribed by the Directive, to clarify the applicable penalties and to set out 
the general principles on the deactivation of weapons defined by the United Nations Protocol. 

Legal basis 

Article 95 of the EC Treaty. 

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Subsidiarity principle 

The Commission’s action is justified by the signing of the Protocol, which of course contains 
the international obligations that must be observed. 

Proportionality principle 

The proposed amendments are limited to the integration into the Directive of the provisions of 
the Protocol. 

The financial and administrative burden incurred by these technical amendments is extremely 
limited.  

In  practice,  for  instance,  economic  operators  already  mark  the  weapons  in  question  and  the 
registers are mainly kept in computerised form; the general principles of deactivation offer a 
large choice  of applicable techniques, and the establishment of applicable  penalties  is of no 
financial consequence. 

Choice of instruments 

Proposed instrument(s): Directive. 

As the original legal provision to be amended is a Directive, the appropriate legal instrument 
is therefore another Directive, in accordance with the principle of parallel forms.  

The choice of another Community instrument, or recourse to national legislation to make the 
intended  changes,  would  have  deprived  the  Directive  of  part  of  its  substance  and  even 
undermined its coherency and credibility. 

Furthermore, it would be unjustifiable if the Community, which is party to the Protocol, did 
not bear the consequences in its internal legal system. 

BUDGETARY IMPLICATION 

The proposal has no implications for the Community budget. 

ADDITIONAL INFORMATION 

Simplification 

With the guarantee of sufficient marking and a higher minimum duration for the keeping of 
registers, the public authorities at EU level may, in particular, expect improved traceability of 
the weapons covered by the Directive.  

Repeal of existing legislation 

No other current legislative provisions are likely to be repealed.  

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Detailed explanation of the proposal by chapter or by article 

This  can  be  consulted  in  part  3)  "legal  elements  of  the  proposal,  summary  of  the  proposed 
measures". 

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2006/0031(COD) 

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 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
95 (1) thereof, 

Having regard to the proposal of the Commission 3, 

Having regard to the opinion of the European Economic and Social Committee 4, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty5, 

Whereas: 

(1) 

(2) 

(3) 

Council  Directive  91/477/EEC  of  18  June  1991  on  control  of  the  acquisition  and 
possession of weapons6 established an accompanying measure for the internal market. 
It creates balance between the undertaking to ensure a certain freedom of movement 
for  some  firearms  within  the  European  Community,  and  the  need  to  control  this 
freedom using security guarantees suited to this type of product.  

In accordance with Council Decision 2001/748/EC of 16 October 2001 concerning the 
signing  on  behalf  of  the  European  Community  of  the  Protocol  on  the  illicit 
manufacturing  and  trafficking  of  firearms,  their  parts,  components  and  ammunition, 
annexed to the United Nations Convention against transnational organised crime7. The 
Commission  has  signed  this  Protocol  (hereinafter  referred  to  as  the  “Protocol”)  on 
behalf of the Community.  

The accession of the Community to the Protocol makes it necessary to amend certain 
provisions  of  Directive  91/477/EEC.  Indeed,  it  is  important  to  ensure  the  coherent, 
effective  and  rapid  application  of  the  international  commitments  affecting  the 
Directive. 

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OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ L 256, 13.9.1991, p. 51. 
OJ L 280, 24.10.2001, p. 5.  

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(4) 

(5) 

The  notions  of  illicit  manufacturing  and  trafficking  of  firearms,  their  parts, 
components  and  ammunition  should  therefore  be  defined  for  the  purposes  of  this 
Directive. 

Furthermore,  the  Protocol  establishes  an  obligation  to  mark  weapons  at  the  time  of 
manufacture, and at the time of transfer from government stocks to permanent civilian 
use, whereas Directive 91/477 refers only indirectly to the marking obligation. 

(6)  Moreover,  the  period  during  which  the  registers  containing  information  on  the 

weapons are kept must be increased to at least ten years, as specified by the Protocol. 

(7) 

(8) 

It  must  also  be  specified  that  brokering  activities,  as  mentioned  in  Article  15  of  the 
Protocol, fall within the definition of dealer given by the Directive. 

In  some  serious  cases,  the  Protocol  requires  the  application  of  judicial  penalties  and 
confiscation of the weapons. Consequently, the penalties provided for in the Directive 
must be reinforced. 

(9)  With regard to  the deactivation of  firearms,  point III (a) of  Annex  I  to  the  Directive 
simply  refers  to  national  legislation.  The  Protocol  sets  out  more  explicit  general 
principles for the deactivation of weapons. Annex I to the Directive must therefore be 
completed. 

(10)  Directive 91/477/EC should be amended accordingly. 

HAVE ADOPTED THIS DIRECTIVE: 

Directive 91/477/EEC is hereby amended as follows: 

Article 1 

1) 

In Article 1, after paragraph 2, the following two paragraphs shall be added: 

“3.  For  the  purposes  of  this  Directive,  “illicit  manufacturing”  shall  mean  the 
manufacturing or assembly of firearms, their parts and components or ammunition: 

–  from parts and components illicitly trafficked; 

–  without  a  licence  or  authorisation  issued  in  compliance  with  national  law  by  a 
competent  authority  of  the  Member  State  where  the  manufacture  or  assembly 
takes place; or 

–  without  marking  the  firearms  at  the  time  of  manufacture,  in  accordance  with 

Article 4(1). 

4. For the purposes of this Directive, “illicit trafficking” shall mean the acquisition, 
sale,  delivery,  movement  or  transfer  of  firearms,  their  parts  and  components  and 
ammunition  from  or  across  the  territory  of  one  Member  State  to  that  of  another 
Member  State  if  any  one  of  the  Member  States  concerned  does  not  authorise  it  in 
accordance  with  the  terms  of  this  Directive  or  if  the  firearms  are  not  marked  in 
accordance with Article 4(1). ” 

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2) 

Article 4 is replaced by the following:  

“1. For the purpose of identifying and tracing each firearm, the Member States, at the 
time  of  manufacture  of  each  firearm,  either  require  unique  marking  providing  the 
name of the manufacturer, the country or place of manufacture and the serial number, 
or  maintain  any  alternative  unique  user-friendly  marking  with  simple  geometric 
symbols  in  combination  with  a  number  or  alphanumeric  code,  permitting  ready 
identification by all States of the country of manufacture.  

Furthermore,  the  Member  States  shall  ensure,  at  the  time  of  transfer  of  a  firearm 
from  government  stocks  to  permanent  civilian  use,  the  appropriate  unique  marking 
permitting identification by States of the transferring country. 

2.  At  least  in  respect  of  categories  A  and  B,  each  Member  State  shall  make  the 
pursuit of the activity of dealer within its territory conditional upon authorisation on 
the basis of at least a check on the private and professional integrity of the dealer. In 
the  case  of  a  legal  person,  the  check  shall  be  on  the  person  who  directs  the 
undertaking.  In  respect  of  categories  C  and  D,  each  Member  State  which  does  not 
make the pursuit of the activity of dealer conditional upon authorisation shall make 
such activity subject to a declaration.  

3.  Dealers  shall  be  required  to  keep  a  register  in  which  information  concerning  all 
firearms  classified  in  category  A,  B  or  C  received  or  disposed  of  by  them  shall  be 
recorded,  including  such  particulars  as  enable  the  weapon  to  be  identified,  in 
particular  the  type,  make,  model,  calibre  and  serial  number  thereof  and  the  names 
and  addresses  of  the  person  acquiring  the  weapon.  The  dealer  shall  conserve  the 
register for a period of five years, even after he has ceased his activity. Each Member 
State shall ensure the maintenance of this information for not less than ten years.”  

3) 

Article 16 is replaced by the following:  

“ 1. Member States shall lay down the rules on penalties applicable to infringements 
of  the  national  provisions  adopted  pursuant  to  this  Directive  and  shall  take  all 
measures necessary to ensure that they are implemented.. The penalties provided for 
must be effective, proportionate and dissuasive.  

The  Member  States  shall,  in  accordance  with  this  Directive,  establish  as  criminal 
offences the following conduct, when committed intentionally: 

–  illicit manufacturing of firearms, their parts and components and ammunition; 

–  illicit trafficking of firearms, their parts and components and ammunition; 

–  falsifying  or  illicitly  obliterating,  removing  or  altering  the  markings  on  firearms 

required by Article 4(1). 

Such attempts, or participation as an accomplice in the latter shall also be considered 
as criminal offences, when committed intentionally.  

These  offences  shall  be  punishable  by  a  confiscation  measure  as  provided  for  in 
Article 2 of Council Framework Decision 2005/212/JHA of 24 February 2005 on the 
Confiscation of Crime-Related Proceeds, Instrumentalities and Property.  

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2.  The  Member  States  shall  notify  the  Commission  of  the  provisions  set  out  in 
paragraph  1  by  no  later  than  the  date  specified  in  Article  2  of  this  Directive  and 
without delay of any subsequent amendments affecting them.” 

4) 

Annex I is amended as follows: 

a) Point III (a) is replaced by the following:  

“a)  have  been  rendered  permanently  unfit  for  use  by  deactivation  ensuring  that  all 
essential  parts  of  the  firearm  have  been  rendered  permanently  inoperable  and 
incapable of removal, replacement or modification that would permit the firearm to 
be reactivated in any way”; 

b) The following paragraph is inserted after the first paragraph: 

“The Member States shall make arrangements for the deactivation measures set out 
under  (a)  to  be  verified  by  a  competent  authority,  to  ensure  that  the  modifications 
made  to  a  firearm  render  it  permanently  inoperable. The  Member  States  shall 
provide,  in  the  context  of  this  verification,  for  the  issue  of  a  certificate  or  record 
attesting  to  the  deactivation  of  the  firearm  or  a  clearly  visible  mark  to  that  effect 
stamped on the firearm”. 

Article 2 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  […]  at  the  latest.  They  shall 
forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
correlation table between those provisions and this Directive. 

When  Member  States  adopt  these  measures,  they  shall  contain  a  reference  to  this 
Directive or shall be accompanied by such reference on the occasion of their official 
publication.  The  methods  of  making  such  reference  shall  be  laid  down  by  the 
Member States. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

This Directive shall enter into force on the day after its publication in the Official Journal of 
the European Union. 

Article 3 

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Article 4 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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