Proposal for a COUNCIL DECISION authorising the Member States to negotiate in the United Nations Conference on the Arms Trade Treaty (New York, 2-27 July 2012) on those matters coming under the exclusive competence of the Union
Date: 2012-05-23
Institutions: European Commission
Subjects: arms supply, arms trade, conventional weapon, international agreement, international convention, single market

EUROPEAN COMMISSION 

Brussels, 23.5.2012  
COM(2012) 241 final 

2012/0124 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising the Member States to negotiate in the United Nations Conference on the 
Arms Trade Treaty (New York, 2-27 July 2012) on those matters coming under the 
exclusive competence of the Union 

EN 

   EN 

 
 
 
  
 
EXPLANATORY MEMORANDUM 

The United Nations Conference on the Arms Trade Treaty will be held in New York from 2 to 
27 July 2012. The objective of the Conference is a legally binding Arms Trade Treaty aiming 
at  making  the  legal  trade  in  conventional  arms  more  responsible,  by  setting  high  common 
international parameters to regulate international arms transfers. 

The envisaged Treaty is likely to provide for measures (such as export or import licenses) , 
which  fall,  in  principle,  within  the  scope  of  the  Union's  Common  Commercial  Policy. 
According to well-established case law, such measures are not removed from the scope of the 
Common  Commercial  Policy  and,  hence,  of  the  Union's  exclusive  competence  merely 
because a Member State takes such measures in order to safeguard its national security.  

Whereas Council Regulation (EC) No 260/2009 of 26 February 2009, on the common rules 
for  imports  and  Council  Regulation  (EC)  No  1061/2009,  of  19  October  2009,  establishing 
common  rules  for  exports  have  authorised  Member  States  to  impose  restrictions  on  imports 
and exports, respectively, based inter alia on grounds of public security and public morality, it 
is necessary to ensure that the measures provided in the Treaty comply with the terms of such 
authorizations.  

Moreover,  over  the  past  20  years,  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 and dual use goods to third 
countries: 

(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; 

(d)  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; 

(e)  Council  Regulation  (EC)  No  428/2009,  of  5  May  2009,  setting  up  a 
Community regime for the control of exports, transfer, brokering and transit of 
dual-use items; 

(f)  Directive  2009/81/EC  of  the  European  Parliament  and  of  the  Council  of  13 
July  2009  on  the  coordination  of  procedures  for  the  award  of  certain  works 

EN 

2 

   EN 

contracts,  supply  contracts  and  service  contracts  by  contracting  authorities  or 
entities in the fields of defence and security. 

In order to ensure the compatibility between a future Arms Trade Treaty and the provisions of 
Directives  91/477/EEC,  93/15/EC  and  2009/43/EC,  the  future  treaty  should  not  require  that 
the transfers of arms and ammunitions between the Member States should be assessed against 
agreed parameters and authorised by a license on a case-by-case basis. If such a requirement 
was retained in a future Arms Trade Treaty, the Member States that would become party to 
such a treaty could not apply it to intra-EU arms trade without breaching EU law. 

In order to ensure the compatibility between a future Arms Trade Treaty and the provisions of 
Regulation (EU) No 258/2012, the future treaty should be consistent with the principle stated 
by the UN Protocol on Firearms and namely Article 10. According to the latter firearms and 
related items should not be transferred between States without the awareness and consent of 
all  States  involved.  Firearms  should  not  be  exported  to  or  through  countries  that  have  not 
authorised the transfer. 

The  negotiations  of  the  Arms  Trade  Treaty  covers  issues  coming  under  the  exclusive 
competence  of  the  Union,  because  they  are  within  the  scope  of  the  common  commercial 
policy and because the conclusion of the Treaty may affect common rules or alter their scope. 

In the present circumstances, it is advisable to authorise the Member States to negotiate the 
Arms Trade Treaty on matters falling under the Union's exclusive competence in accordance 
with the appropriate negotiating directives. This authorisation does therefore not cover those 
elements of the Arms Trade Treaty that may fall under Union's competence under the CFSP 
and relate to the CFSP acquis. 

EN 

3 

   EN 

2012/0124 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising the Member States to negotiate in the United Nations Conference on the 
Arms Trade Treaty (New York, 2-27 July 2012) on those matters coming under the 
exclusive competence of the Union 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 2(1), 114(1), 207(4) first subparagraph, and 218(3) and (4) thereof, 

Having regard to the proposal from the Commission1, 

Whereas: 

(1) 

(2) 

(3) 

At  its  sixty-fourth  session,  the  General  Assembly  of  the  United  Nations  adopted 
resolution 64/48, in which it decided to convene a United Nations Conference on the 
Arms Trade Treaty to meet for four consecutive weeks in 2012 to elaborate a legally 
binding  instrument  on  the  highest  possible  common  international  standards  for  the 
transfer  of  conventional  arms.  The  United  Nations  Conference  on  the  Arms  Trade 
Treaty  will  be  held  in  New  York  from  2  to  27  July  2012.  The  objective  of  the 
Conference is a legally binding Arms Trade Treaty aiming at making the legal trade in 
conventional arms more responsible, by setting high common international parameters 
to  regulate  international  arms  transfers  and  tackle  the  undesirable  and  irresponsible 
proliferation of conventional arms.  

The  envisaged  Treaty  is  likely  to  provide  for  measures  (such  as  export  or  import 
licenses)  falling  within  the  scope  of  the  Union's  Common  Commercial  Policy. 
Whereas Council Regulation (EC) No 260/2009 of 26 February 2009, on the common 
rules  for  imports  and  Council  Regulation  (EC)  No  1061/2009,  of  19  October  2009, 
establishing  common  rules  for  exports  have  authorised  Member  States  to  impose 
restrictions on imports and exports, respectively, based inter alia on grounds of public 
security and public morality, it is necessary to ensure that the measures provided in the 
envisaged Treaty comply with the terms of such authorizations.  

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  conventional  arms  or  dual  use  items  to  third 
countries,  including  in  particular:  a)  Council  Directive  91/477/EEC  of  18  June  1991 
on  control  of  the  acquisition  and  possession  of  weapons,  b)  Council  Directive 
93/15/EEC  of  5  April  1993  on  the  harmonization  of  the  provisions  relating  to  the 

1 

OJ C , p. . 

EN 

4 

   EN 

                                                 
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, d) 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;  e)  Directive  2009/81/EC  of  the  European  Parliament  and  of  the 
Council  of  13  July  2009  on  the  coordination  of  procedures  for  the  award  of  certain 
works  contracts,  supply  contracts  and  service  contracts  by  contracting  authorities  or 
entities  in  the  fields  of  defence  and  security;  and  f)  Council  Regulation  (EC)  No 
428/2009, of 5 May 2009, setting up a Community regime for the control of exports, 
transfer, brokering and transit of dual-use items. 

(4) 

(5) 

(6) 

A legally binding instrument on the highest possible common international standards 
for the transfer of conventional arms concerns matters that fall under Union exclusive 
competence because they are within the scope of the Common commercial policy or 
the  conclusion  of  the  Arms  Trade  Treaty  may  affect  the  abovementioned  common 
rules or alter their scope. 

It  is  necessary  to  exceptionally  authorise  the  Member  States  to  negotiate  the  Arms 
Trade Treaty on those matters falling under the Union's exclusive competence. 

This  decision  does  not  cover  those  elements  of  the  Arms  Trade  Treaty  that  may  fall 
under Union's competence under the CFSP and relate to the CFSP acquis. 

HAS ADOPTED THIS DECISION:  

Article 1 

Member  States  are  hereby  authorised  to  negotiate  at  the  United  Nations  Conference  on  the 
Arms Trade Treaty on those matters falling under the Union's exclusive competence.  

Member States shall coordinate with the support of representatives of the Commission and of 
the European External Action Service, who shall also assist in the negotiations as appropriate. 

The negotiations shall be carried out in accordance with the negotiating Directives set out in 
the Annex. 

Article 2 

EN 

5 

   EN 

Article 3 

This Decision is addressed to the Member States. 

Done at Brussels,  

For the Council 
The President 

EN 

6 

   EN 

 
 
 
(1) 

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

ANNEX  

(2) 

(3) 

(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; 

(d)  Directive  2009/81/EC  of  the  European  Parliament  and  of  the  Council  of  13 
July  2009  on  the  coordination  of  procedures  for  the  award  of  certain  works 
contracts,  supply  contracts  and  service  contracts  by  contracting  authorities  or 
entities in the fields of defence and security; 

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 Article 346 TFEU. 

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)  Council  Regulation  (EC)  No  428/2009,  of  5  May  2009,  setting  up  a 
Community regime for the control of exports, transfer, brokering and transit of 
dual-use items; 

(e)  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; 

EN 

7 

   EN 

(4) 

The  Arms  Trade  Treaty  shall  contain  provisions  enabling  the  European  Union  to 
become a Party to the Treaty. 

EN 

8 

   EN