Proposal for a COUNCIL DECISION authorising Member States to sign, in the interests of the European Union, the Arms Trade Treaty
Date: 2013-05-08
Institutions: European Commission
Subjects: EU Member State, arms trade, signature of an agreement

EUROPEAN 
COMMISSION 

Brussels, 8.5.2013  
COM(2013) 273 final 

2013/0146 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to sign, in the interests of the European Union, the Arms 
Trade Treaty 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1 Introduction 

UN  Resolution  61/89,  adopted  in  2006,  initiated  the  process  for  developing  a  Treaty  to 
regulate  the  international  trade  in  conventional  weapons,  the  so-called  Arms  Trade  Treaty 
(ATT).  The  objective  was  to  achieve  a  legally  binding  Treaty  making  the  legal  trade  in 
conventional  arms  more  responsible,  by  setting  high  common  international  standards  on 
imports, exports and transfers. 

Intensive preparatory work was carried out during 2007 and 2009, followed by a First United 
Nations  Conference  on  the  ATT  held  in  New  York  from  2  to  27  July  2012.  Although  the 
Conference failed to reach a consensus, it delivered a first draft text.  

At  the  last  UN  Conference,  held  in  March  2013,  this  draft  Treaty  was  revised,  but  still  no 
consensus could be reached with three States rejecting the Chairs' proposal. The Treaty was 
finally adopted by qualified majority on 2 April 2013. The majority of UN Members agreed 
on 3 June 2013 as a designated date for opening the signature of the Treaty.  

1.2 EU Competence 

In accordance with the rules on external competence as laid down in Article 3(2) of the Treaty 
on the Functioning of the European Union (TFEU), the ATT concerns matters that fall under 
Union exclusive competence.  

The  ATT  provides,  inter  alia,  for  measures  (such  as  import  and  export  controls),  which  fall 
within the scope of the Union's Common Commercial Policy. In this domain, ATT addresses 
areas  of  Union  law  where  the  degree  of  regulation  has  already  reached  an  advanced  stage. 
Moreover,  the  following  EU-secondary  legislation  related  to  the  internal  market  is  also  of 
relevance: a) Council Directive 2009/43/EC of 6 May 2009 simplifying terms and conditions 
of  transfers  of  defence-related  products  within  the  Community,  b)  Council  Directive 
91/477/EEC  of  18  June  1991  on  control  of  the  acquisition  and  possession  of  weapons,  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. 

As  the  ATT  concerns  matters  of  exclusive  EU  competence,  Member  States  are  not  in  a 
position  to  decide  autonomously  on  the  signature  of  the  Treaty.  They  can  only  do  it,  in  the 
interest of the Union, after authorisation by the Council upon a proposal by the Commission. 

1.3 Details and Scope of the ATT 

The  purpose  of  the  ATT  is  to  contribute  to  international  and  regional  peace,  security  and 
stability by regulating the international trade in conventional arms and eradicating the illicit 
arms  trade.  The  ATT  creates  standards  for  transfers  of  conventional  weapons  and  requires 
State Parties to review all arms exports to ensure conventional arms and munitions will not be 
used inter alia in Human Rights abuses, terrorism and violations of Humanitarian law.  

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The ATT provides for the assessment of arms transfers and measures to prevent the diversion 
of  conventional  arms  from  the  importing  and  exporting  States.  In  addition,  it  enhances 
transparency in arms trading by encouraging record keeping and reporting to the Secretariat 
and other State Parties. The provisions of the ATT cover conventional arms of the following 
categories:  battle  tanks,  armoured  combat  vehicles,  large-calibre  artillery  systems,  combat 
aircraft, attack helicopters, warships, missiles and missile launchers and small arms and light 
weapons.  The  Treaty  also  covers  the  related  ammunition/  munitions  and  parts  and 
components.  

1.4 Implications for the acquis communautaire  

The ATT may affect or alter the scope of common rules adopted by the European Union. As a 
result, the Council has established, in the Annex to its Decision …/2013 authorising 
the Commission to negotiate the ATT on those matters falling under the competence 
of the Union, the following negotiating directives:  

(1) 

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

(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. 

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 Articles 36, 45(3), 52(1), 65, or 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)  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. 

These  various  European  Union  legal  acts  are  part  of  the  acquis  and  it  is  therefore  essential 
that they are not put in question by the adoption of the ATT. In the absence of a RIO clause in 

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the Treaty, it is particularly important to ensure that the internal market legislation has been 
safeguarded.  

Accordingly, a detailed analysis was made, in line with the Council negotiating directives on 
these questions, and concluded that the provisions of the ATT (Articles 6, 7, 9, 26) ensure that 
the  ATT  is  compatible  with  the  acquis.  In  any  case,  any  potential  problem  of  compatibility 
could be addressed through article 26 (1). This article foresees that the implementation of the 
Treaty shall not prejudice obligations undertaken by States Parties with regard to existing or 
future  international  agreements,  to  which  they  are  parties,  where  those  obligations  are 
consistent with this Treaty.  

The  European  Union  cannot  become  a  party  to  the  ATT,  as  the  current  text  includes  only 
State  Parties.  However,  the  ATT  allows  for  amendments  at  a  later  stage  and  the  European 
Union may become an ATT party subject to a three quarters majority vote of the State Parties.  

1.5 Signing the Treaty 

The European Union as such cannot sign the ATT. However, as the ATT falls partly within 
the competence of the Union and partly within that of the Member States, it is necessary that 
the Union institutions and the Member States take all the measures to cooperate in signing the 
ATT and to ensure the implementation of the commitments resulting from that Treaty. 

In view of the intention of the Member States to sign the ATT on June 3, 2013, it is necessary 
to  give  priority  to  the  preparation  and  adoption  of  a  Council  Decision  authorising  Member 
States  to  sign  the  ATT.  Once  it  is  adopted,  the  Commission  will  propose  a  second  Council 
Decision,  on  which  the  European  Parliament  has  to  give  its  consent,  authorising  Member 
States to ratify the Treaty. 

1.6 Conclusion 

It is vital to fill the gap of the unregulated trade of conventional arms at an international level 
and  to  assist  the  development  of  peace-building  and  humanitarian  efforts.  The  ATT,  by 
establishing  common  legally  binding  standards  for  the  import,  export  and  transfer  of 
conventional  arms,  makes  the  arms  trade  more  responsible  and  transparent,  an  objective 
shared by the European Parliament, the Council and the Commission. It has the potential to 
reinforce  international  peace  and  security  at  global  level.  The  illegal,  or  poorly  regulated, 
trade in conventional arms costs lives – more than 740,000 men, women and children die each 
year  as  a  result  of  armed  violence.  The  swift  entry  into  force  of  the  ATT  is  thus  of  utmost 
importance and it is therefore essential for Member States to sign the Treaty on June 3 2013, 
at the Solemn Ceremony.  

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Not applicable. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Article 1 

Due  to  the  impossibility  of  the  EU  to  become  party  to  the  Treaty,  the  Article  authorises 
Member  States  to  sign  the  current  Treaty  on  a  subject  that  concerns  matters  of  exclusive 
competence of the Union.  

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Article 2 

The  Article  encourages  EU  Member  States  to  sign  the  Treaty,  if  possible,  on  the  specified 
date. As advocated by many Member States, signing on the said date is an important signal to 
underline the commitment of the EU and its Member States to implement the ATT as soon as 
possible. Article 20 of the Arms Trade Treaty requires fifty States to ratify the Treaty in order 
for it to be entered into force. The signing of the Treaty by all Member States would therefore 
constitute an important step towards this aim. 

Article 3 

The purpose of the decision is to authorise the Member States to be bound by the Treaty and 
so the decision is addressed to them. 

4. 

BUDGETARY IMPLICATION  

None

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2013/0146 (NLE) 

Proposal for a 

COUNCIL DECISION 

authorising Member States to sign, in the interests of the European Union, the Arms 
Trade Treaty 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 and 207(3) in conjunction with Article 218(5) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

On  11  March  2013  the  Council  authorised  the  Commission  to  negotiate  the  Arms 
Trade Treaty in the framework of the United Nations on those matters coming under 
the exclusive competence of the Union.  

On 2 April 2013 the General Assembly of the United Nations adopted the text of the 
Arms  Trade  Treaty1.  The  General  Assembly  also  invited  State  Parties  to  open  the 
signing of the Treaty with a Solemn Ceremony on 3 June 2013. 

The  object  of  this  Treaty  is  to  provide  the  highest  possible  common  international 
standards for regulating the international trade in conventional arms and to prevent and 
eradicate  illicit  trafficking  in  conventional  arms.  Member  States  expressed  their 
satisfaction  for  the  outcome  of  the  negotiations  and  their  willingness  to  urgently 
proceed to the signature of the Treaty. 

The  provisions  of  the  Treaty  fall  under  the  exclusive  competence  of  the  Union 
concerning  the  Common  Commercial  Policy  and  the  Internal  Market  rules  for  the 
transfer of conventional arms and explosives. 

The European Union cannot sign the Treaty, as only States can be parties thereto. 

Therefore,  in  accordance  with  Article  2(1)  TFEU,  the  Council  should  authorise 
Member States to sign the Treaty. 

HAS ADOPTED THIS DECISION:  

Member States are hereby authorised to sign the Arms Trade Treaty. 

Article 1 

Member  States  are  encouraged  to  sign  the  Arms  Trade  Treaty  at  the  Solemn  Ceremony  in 
New York, on 3 June 2013, or at the earliest possible date. 

Article 2 

1 

A/CONF.217/2013/L.3 

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This Decision is addressed to the Member States. 

Done at Brussels,  

Article 3 

For the Council 
The President 

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