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)
Date: 2006-09-13
Institutions: European Economic and Social Committee
Subjects: EC Directive, arms control, fight against crime, free movement of goods, illicit trade, personal weapon, public safety

23.12.2006

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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).

The proposal thus seeks to entrust the legal enforcement
1.2
of the aforementioned Supplementing Protocol to an interna-
tional 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).

The following needs have been identified as overall objec-

1.3
tives:

— 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.

Consequently, the proposal currently under examination
1.4
proposes mechanisms which are binding on Member States and

(1) Council Directive 91/477/EEC of 18 July 1991 on control of the acqui-
sition 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.

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.

Transnational crime also constitutes one of the most
2.1.1
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 illegiti-
mate 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
criminal activity overlap and feed into one another.
of

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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).

understanding of the importance, in this context, of trafficking
in firearms.

Estimates suggest that there are currently hundreds of
2.3
millions of light weapons in circulation in the world, respon-
sible 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.

The Union's Member States must provide an appropriate
2.4
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 require-
ments 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
trafficking in
weapons is also a significant risk factor for the EU's internal
affairs.

the various Member States,

2.7
The Community had already felt the need to tackle this
threat within its own borders, by adopting Council Directive
the EU Joint
91/477/EEC of 18 June 1991. Subsequently,
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
since been
published (6).

that have

reports

2.8 More recently, the United Nations too has focused its
attention on the matter, and has even supported a number of
set up a special
measures
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

field. Consequently,

in this

it

(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 traf-

ficking 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.

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 inter-
ested countries as of 1 September 2001; it has however experi-
enced 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 incor-
porating 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, espe-
cially taking into account the principle of the hierarchy of laws,
and particularly given the type of legislation to be amended.

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

3.2 Gist of the proposal

In adopting the Supplementary Protocol to the United
3.2.1
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 ammuni-
tion, 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
supports the Commission initiative.

The Committee welcomes

this concern and fully

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

(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.

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Furthermore, in its external relations, the Council has
3.2.4
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).

directive 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.

the identification,

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

and the proceeds

instrumentalities

tracing,

In this regard, the Committee is not merely pleased
3.2.6
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

Article 1 of this proposal amends the following articles

4.1
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 provi-
sions 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
the
once

it has been adopted.

impact of

In fact,

the

Brussels, 13 September 2006.

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 exclu-
sively within the specific scope of the United Nations conven-
tion 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.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(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.