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.
Date: 2013-03-22
Institutions: European Commission
Subjects: arms trade, fight against crime, illicit trade, international convention, protocol to an agreement

EUROPEAN 
COMMISSION 

Brussels, 22.3.2013  
COM(2013) 154 final 

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. 

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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  Community1  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 20012 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  20013  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 
Union5 . Directive 2008/51/EC amending Council Directive 91/477 ECC of 18 June 1991 on 

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Decision of 31 January 2000. 
UN General Assembly Resolution A/RES/55/255. 
Council Decision 2001/748/EC, OJ L 280 of 24.10.2001, p.5. 
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. 
Communication  on  measures  to  ensure  greater  security  in  explosives,  detonators,  bomb  making 
equipment and fire-arms of 18.07.2005; COM(2005) 329 final.  

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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 Union6 listed among its relevant 
actions a proposal on the conclusion - on behalf of the European Community - of the UNFP. 
Its  successor  the  Stockholm  Programme7  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 Strategy8 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: 

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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 weapons9.  

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.  

OJ C 198, 12.8.2005, point 4.2, International legal Order, (o), p.20. 
EU Council Document 17024/09, CO EUR-PREP 3 JAI 896 POLGEN 229 of 2 December 2009. 
Commission Communication, 'The Internal security strategy in action: Five steps towards a more secure 
Europe,' COM(2010) 673. 
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). 

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• 

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: 

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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 

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

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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. 

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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 Commission11, 

Having regard to the consent of the European Parliament12, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

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. 
In  accordance  with  Council  Decision  2001/748/EC13  the  Protocol  was  signed  on  16 
January 2002, subject to its conclusion at a later date. 

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  200414  which  is  a  condition  for  the  European  Union  to 
become a Party to the Protocol, pursuant to Article 37 (2) of the Convention. 

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.  

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. 

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OJ, p.  
OJ, p.  
OJ L 280 of 24.10.2001, p.5 
OJ L 261 of 06.08.2004 

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(6) 

(7) 

(8) 

(9) 

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, 

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, 

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, 

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. 

This Decision shall enter into force on 15. 

Done at Brussels,  

Article 3 

For the Council 
The President 

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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. 

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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. 

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