CELEX: 
Language: en
Date: 2020-11-25
Title: COMMISSION DELEGATED REGULATION (EU) …/... laying down the detailed arrangements under Council Directive 91/477/EEC for the systematic exchange, by electronic means, of information relating to refusals to grant authorisations to acquire or possess certain firearms

EXPLANATORY MEMORANDUM
            
            
               1.CONTEXT OF THE DELEGATED ACT
            
            
               In May 2017, the Firearms Directive 91/477/EEC
                  1
                was revised
                  2
               . Amongst other things, the revision aimed at making it harder to legally acquire certain types of firearms, improve traceability and enhance co-operation between Member States. 
            
            
               One aspect of the revision was to improve the exchange of information concerning firearms between Member States. This was to be achieved in two ways. 
            
            
               Firstly, the Firearms Directive aimed at improving the administrative exchange of information between Member States' authorities on the transfers of firearms within the Union (Article 11), by making this exchange of information more systematic and based on an electronic system (Article 13). 
            
            
               Secondly, Article 13(4) of the Firearms Directive required competent authorities in Member States to exchange, by electronic means, information with regard to refusals to grant authorisations, as provided for in Articles 6 and 7 of that Directive (that is, authorisations to acquire or possess firearms classified in category A or B), on grounds of security or relating to the reliability of person concerned. This administrative exchange of information is currently not being done systematically by Member States.
            
            
               In that context, Article 13(5) of the Firearms Directive entrusted the Commission to provide Member States with a system for the electronic exchange of information. In addition, it granted the Commission the powers to adopt delegated acts in accordance with Article 290 of the Treaty of the Functioning of the European Union in order to supplement Directive 2017/853 with the relevant rules laying down the detailed arrangements for the systematic exchange of information by electronic means. 
            
            
               Following discussions with Member States, the Commission decided to provide for an electronic system for the exchange of information with regard to refusals to grant authorisations to acquire or possess firearms classified in category A or B, on grounds of security or relating to the reliability of persons concerned, by enabling the use of the Internal Market Information System ('IMI') established by Regulation (EU) No 1024/2012 of the European Parliament and of the Council on administrative cooperation through the Internal Market Information System
                  3
               , specifically customised for such refusals. Accordingly, further to the detailed arrangements for the electronic exchange provided for in this delegated act, in parallel, Commission Implementing Decision (EU) [YYYY/xx]
                  4
                has been adopted to make the administrative cooperation provisions set out in Article 13 of Directive relating to the refusals to grant firearm authorisations subject to a pilot project under Article 4 of Regulation (EU) No 1024/2012. 
            
            
               In the context of discussing the measures to be adopted under Article 13(5) of the Firearms Directive, Member States in an expert group on exchange of information also agreed to the adoption of two delegated acts to deal with the two types of electronic information exchanges foreseen in the Firearms Directive. Consequently, while this delegated act focuses specifically on establishing the detailed arrangements for the systematic exchange by electronic means of information related to refusals to grant firearms authorisations on grounds of security or relating to reliability of persons concerned, the setting up of an electronic exchange system for the exchange of information concerning the transfer of firearms is the subject of another delegated act, namely Commission Delegated Regulation (EU) 2019/686 of 16 January 2019 laying down the detailed arrangements under Council Directive 91/477/EEC for the systematic exchange, by electronic means, of information relating to the transfer of firearms within the Union
                  5
               . 
            
            
               The approach of having two delegated acts was based on various considerations. Firstly, the two types of information exchanges potentially involve different actors in the Member States. With respect to the transfer of firearms between Member States, custom authorities in Member States tend to be the relevant authorities in this information exchange. With respect to refusals to grant firearms authorisations, other authorities, depending on the administrative structure of Member States, are more likely to provide the relevant information. 
            
            
               Secondly, the setting up of an electronic exchange of information for refusals to grant authorisations required a more in-depth analysis, notably in respect of data protection considerations.
            
            
            
               2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
            
            
               The Commission carried out the appropriate consultations during its preparatory work. An expert working group on exchange of information was convened in June 2017 and met regularly over a 21-month period to discuss the arrangements of such an electronic exchange. 
            
            
               Consultations were also held with the European Data Protection Supervisor (EDPS) to ensure that such exchange of information between Member States takes place in compliance with the rules on data protection laid down in Regulation (EU) 2016/679
                  6
                of the European Parliament and of the Council. 
            
            
               [During the consultation period on the Better Regulation Portal….]
            
            
            
               3.LEGAL ELEMENTS OF THE DELEGATED ACT
            
            
               The proposed delegated act describes the arrangements by which the exchange of information between Member States, relating to refusals to grant authorisations to acquire or possess firearms as provided for in Articles 6 and 7 of Directive 91/477/EEC on grounds of security or the reliability of persons concerned, is to be done in the electronic system. Furthermore, the proposed delegated act establishes that this electronic system will be the IMI, as stipulated in Article 2 of the delegated act.
            
         
         
            
               Member States’ representatives in the expert working group on exchange of information expressed their preference for a repository in IMI whereby information on a given refusal would be entered by the competent authorities in Member State concerned and made accessible to the competent authorities that have access to the repository in the other Member States. The expert working group considered that such an approach would provide for a systematic and reliable information exchange while keeping the administrative burden to a minimum for Member States. 
            
            
               Article 3 of the delegated act details the information that must be entered in IMI in order to enable an authority of a Member State to search for a specific individual who may have been refused a firearms authorisation in another Member State, as provided for in Articles 6 and 7 of Directive 91/477/EEC on grounds of security or reliability. It is pertinent to note that the Member States will not enter into IMI any information on the reasons for the refusal to grant an authorisation to an individual. In particular, no information on the criminal records or on the medical or psychological status of an individual will be entered into IMI. Where an authority in a Member State needs further information concerning the reason for the refusal, that authority can contact the relevant competent authority of that other Member State outside of IMI using appropriate means of communication and in compliance with relevant data protection legislation.
            
            
               Article 4 sets out certain obligations in relation to the obligation to remove, update and review information on the validity of the refusal decision, as appropriate. It provides that where a refusal decision is annulled or otherwise held to be invalid, the information relating to it entered in IMI should be removed within 30 calendar days. Article 4 also addresses other circumstances, where information entered in IMI relating to a refusal decision ceases to be accurate and complete for whatever reason (for instance as a result of the subsequent revocation or amendment of the decision). In such cases, it requires the competent authority to update the information relating to the refusal decision in question in IMI within 30 calendar days. Moreover, in the case of a refusal decision imposing an indefinite or a fixed term ban of more than 10 years, Article 4 provides that the information must be reviewed periodically and that the competent authority shall confirm that the refusal decision is still in force or update the information relating to it. 
            
            
               Article 5 of the delegated act sets out the period of time during which information should remain in IMI. Article 5 ensures that at any given point in time, IMI  will contain information on any refusal decision that has been made or has been in effect in the course of the previous 10 years, provided the refusal decision was adopted after the start of application of the Delegated Regulation, and in the case of indefinite or fixed-term ban of more than 10 years, provided the competent authorities have complied with the periodic review obligations laid down in Article 4. A 10-year duration was proposed based on the different practices amongst Member States for retaining information on refusals to grant authorisations in their national systems. Moreover, a 10-year period is long enough to provide for a useful and effective tool for Member States when undertaking background checks for individual persons with respect to potential security or reliability risks related to possessing a firearm. 
            
            
               Pursuant to Article 6, the Delegated Regulation will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. However, it will start to apply only six months from the date of publication, in order to give sufficient time to the Member States to put the necessary procedures in place. 
            
            
               COMMISSION DELEGATED REGULATION (EU) …/...
            
            
               of XXX
            
            
               laying down the detailed arrangements under Council Directive 91/477/EEC for the systematic exchange, by electronic means, of information relating to refusals to grant authorisations to acquire or possess certain firearms
            
            
               (Text with EEA relevance)
            
            
               THE EUROPEAN COMMISSION,
            
            
               Having regard to the Treaty on the Functioning of the European Union,
            
            
               Having regard to Council Directive 91/477/EEC of 18 June 1991 on the control of the acquisition and possession of weapons
                  7
               , and in particular the second subparagraph of Article 13(5) thereof,
            
            
               Whereas:
            
            
               (1)Articles 6 and 7 of Directive 91/477/EEC provide for the grant of authorisations to acquire or possess firearms classified in category A or category B, including grants made by confirming, renewing or prolonging an existing authorisation. Chapter 2 of that Directive also provides for the periodic review and withdrawal of such authorisations.
            
            
               (2)Article 13(4) of Directive 91/477/EEC requires the competent authorities of the Member States to exchange information with regard to refusals to grant authorisations as provided for in Articles 6 and 7 of that Directive on grounds of security or relating to the reliability of the person concerned. 
            
            
               (3)The obligation under Article 13(4) of Directive 91/477/EEC with regard to refusals to grant authorisations is understood to cover any administrative or judicial decision made by a public authority of a Member State, the object or effect of which is to preclude a person from acquiring or possessing a firearm falling within the scope of Article 6 or 7 of that Directive, whether or not following a request for authorisation, whether or not relating to specific firearms and whether or not made pursuant to powers arising under that Directive specifically. For example, the obligation covers a blanket ban on the acquisition or possession of firearms by a particular person, regardless of whether that person had previously applied for an authorisation. It also covers any administrative or judicial decision withdrawing an existing authorisation or refusing to confirm, renew or prolong an existing authorisation. Article 13(4) of Directive 91/477/EEC requires competent authorities to exchange information on all these various types of decision, provided the decision was made either on grounds of security or relating to the person’s reliability.
            
            
               (4)Paragraph 5 of Article 13 of Directive 91/477/EEC requires the Commission to provide for a system for the exchange of any information mentioned in that Article. This would therefore include a system for exchange of the information mentioned in paragraph 4 of that Article relating to refusals to grant authorisations.
            
            
               (5)The administrative cooperation provisions in Article 13 of Directive 91/477/EEC relating to the transfer of firearms from one Member State to another are the subject of a pilot project under Article 4 of Regulation (EU) No 1024/2012 of the European Parliament and of the Council
                  8
               . The Internal Market Information System (‘IMI’) established by that Regulation could also be an effective tool in implementing the administrative cooperation provision set out in Article 13(4) of Directive 91/477/EEC relating to refusals to grant authorisations. Accordingly, Commission Implementing Decision (EU) [YYYY/xx]
                  9
                has been adopted to make that provision subject to a pilot project under Article 4 of Regulation (EU) No 1024/2012 too. In order to protect the personal data of individuals and their rights to privacy, that Implementing Decision specifies that IMI will only allow national authorities to check whether information relating to specific individuals is included in IMI, not to search by reference to more general criteria. Regulation (EU) No 1024/2012 also contains specific safeguards governing access to and the processing of personal data in IMI, for example the rules under Article 9(4) allowing access on a need-to-know basis only. It is therefore appropriate to identify IMI as the system to be used by the competent authorities of the Member States for the purposes of the exchange of information relating to refusals to grant authorisations, and to lay down the detailed arrangements for such exchanges.
            
            
               (6)In order to avoid a disproportionate administrative burden on Member States, the detailed arrangements laid down by this Regulation for the exchange of information via IMI should only apply to refusal decisions made by national administrative or judicial authorities on or after the date of application of this Regulation. 
            
            
               (7)In order to respect the data protection rights of the individuals concerned, the  information to be entered into IMI by a competent authority should be confined to the minimum necessary to enable the competent authorities of other Member States to verify whether a given person is or has been the subject of a refusal decision made on grounds of security or relating to their reliability. The information should therefore only include personal data such as a person’s name, their place and country of birth and their nationality.
            
         
         
            
               (8)Similarly, in order to protect the personal data of individuals and their rights to privacy, information on the specific reasons why a refusal decision was made should not be recorded in IMI. In particular, information on a person’s criminal record or their medical or psychological status should not be recorded in IMI. Where a competent authority in a Member State needs further information about the reasons for a refusal decision made in another Member State, that competent authority would be able to contact the relevant authority in the other Member State outside of IMI using an appropriate means of communication and in compliance with relevant data protection legislation. To that end, when recording a refusal decision in IMI, Member States should indicate the name and contact details of the administrative or judicial authority that made the refusal decision and, where different, the name and contact details of the authority that can be contacted by the competent authorities of other Member States when they are seeking further information about the refusal decision.
            
            
               (9)Refusals should be recorded in IMI even if they may be subject to administrative or judicial appeal. If a refusal decision is annulled or otherwise held to be invalid after information relating to it has been entered in IMI, the relevant authority should be required to remove the entry relating to that refusal no later than 30 calendar days after the refusal decision was annulled or found to be invalid. 
            
            
               (10)In order to ensure that the information contained in IMI remains accurate and complete, Member States should be required to update their entries whenever a relevant change occurs. For example, if a 5-year ban were subsequently reduced to 3 years, the Member State would need to update the entry to record the new end date of the ban. In the case of bans of more than 10 years, including indefinite bans, Member States should also be required to review the entry at least once every 10 years and confirm that it remains valid (or update it accordingly). 
            
            
               (11)It is necessary to determine the period of time that information on a given refusal is to remain accessible by Member States in IMI. That period has to strike a balance between the need to make the information exchange system as effective and useful as possible for Member States and the need to protect the personal data of individuals and their rights to privacy. A refusal could be a simple, one-off decision rejecting a request for authorisation and leaving the applicant free to re-apply for authorisation at any time in the future, or it could be a decision with on-going effect, such as a rejection decision that has the effect, directly or indirectly, of barring the applicant from re-applying for authorisation for a period of time or a decision banning a person from possessing firearms for a fixed or indefinite period. Taking into account current practices in Member States for the various types of refusal that could occur, it is appropriate to provide in this Regulation for information on a refusal decision to remain accessible in IMI for a period of 10 years after the refusal decision was made, in the case of simple, one-off decisions, or for a period of 10 years after the refusal decision ceased to have effect, in the case of decisions with on-going effect.  
            
            
               (12)Application of this Regulation should be deferred in order to allow Member States sufficient time to put in place the necessary procedures. 
            
            
               (13)The measures provided for in this Regulation were discussed with an expert group on exchange of information, consisting of experts from Member States,
            
            
               HAS ADOPTED THIS REGULATION:
            
            
               Article 1
            
            
               Scope
            
            
               This Regulation applies to the exchange, via the system referred to in Article 13(5) of Directive 91/477/EEC, of information concerning refusals to grant authorisations as provided for in Articles 6 and 7 of that Directive on grounds of security or relating to the reliability of the person concerned. 
            
            
               A refusal falls within the scope of this Regulation only if the administrative or judicial decision by which the person concerned is precluded from acquiring or possessing the relevant firearms (referred to in this Regulation as ‘the refusal decision’) was made on or after [… PO: please insert the date of application of this Regulation]. 
            
            
            
               Article 2
            
            
               The electronic exchange system
            
            
               For the purposes of exchanging information to which this Regulation applies, the system referred to in Article 13(5) of Directive 91/477/EEC shall be the Internal Market Information System (‘IMI’) as provided for in Implementing Decision (EU) [YYY/xx].
            
            
               Article 3
            
            
               Information to be exchanged
            
            
               1.The information to be exchanged pursuant to Article 13(4) of Directive 91/477/EEC with regard to a refusal to grant an authorisation as provided for in Article 6 or 7 of that Directive on grounds of security or relating to the reliability of the person concerned shall comprise the following: 
            
            
               (a)the name of the person concerned; 
            
            
               (b)the date of birth of that person; 
            
         
         
            
               (c)the place and country of birth of that person;
            
            
               (d)the nationality of that person; 
            
            
               (e)the date on which the refusal decision was made; 
            
            
               (f)the national reference number or other unique identifier of the refusal decision, if such a number or identifier has been allocated to the refusal decision in the Member State where it was made;
            
            
               (g)the name and contact details of the administrative or judicial authority that made the refusal decision and, if different, the name and contact details of the authority to be contacted in order to seek further information about the refusal;
            
            
               (h)to which one of the following three categories the refusal decision belongs:
            
            
               (i)
                     refusal decisions that operate to preclude a person from acquiring or possessing a firearm indefinitely, without a fixed end date;  
            
            
               (ii)
                     refusal decisions that operate to preclude a person from acquiring or possessing a firearm for a defined period, with a fixed end date (including decisions rejecting a request for authorisation that have the effect of barring the person from re-applying for authorisation within a defined period, with a fixed end date); 
            
            
               (iii)
                     refusal decisions that do not fall within either point (i) or point (ii);  
            
            
               (i)if the refusal decision falls within point (h)(ii), the fixed end date in question;
            
            
               (j)to which one of the following three categories the refusal decision belongs:
            
            
               (i)
                     refusal decisions made in response to a request for authorisation as provided for in Article 6 or 7 of Directive 91/477/EEC, or in response to a request to confirm, renew or prolong such an authorisation;
            
            
               (ii)
                     refusal decisions withdrawing an authorisation granted, confirmed, renewed or prolonged under Article 6 or 7 of Directive 91/477/EEC;
            
            
               (iii)
                     refusal decisions that do not fall within either point (i) or point (ii). 
            
            
               2.In addition to information mentioned in points (a) to (d) of paragraph 1, Member States may choose to provide further identification details of the person concerned, such as a tax code, passport number or identity card number, where necessary to correctly identify that person.
            
            
               3.The information listed in paragraph 1 and, where applicable, the further details mentioned in paragraph 2 shall be entered in IMI within 30 calendar days of the date on which the refusal decision was made and shall be immediately accessible by the competent authorities of all Member States. 
            
            
            
               Article 4
            
            
               Obligations to remove, update and review information 
            
            
               1.Where a refusal decision is annulled or otherwise held to be invalid after information relating to it has been entered in IMI, the competent authority shall remove the entry from IMI within 30 calendar days of the annulment or finding of invalidity. 
            
         
         
            
               2.Where, in circumstances other than those mentioned in paragraph 1, information entered in IMI relating to a refusal decision ceases to be accurate and complete for whatever reason, including as a result of the subsequent revocation or amendment of the refusal decision, the competent authority shall update the information in IMI relating to that refusal within 30 calendar days from the date on which the information ceased to be accurate or complete. In a case involving revocation of the refusal decision, the date from which the revocation takes effect (‘the revocation date’) shall be added to the entry in IMI. 
            
            
               3.In the case of an entry in IMI for a refusal decision falling within Article 3(1)(h)(i), the competent authority shall review the entry at least once every 10 years from the date on which the refusal decision was made and shall update the entry, immediately following each such review, to confirm that the refusal decision remains in force or, if the decision has been revoked, to record the revocation date in accordance with paragraph 2. 
            
            
               4.In the case of an entry for a refusal decision falling within Article 3(1)(h)(ii) with a fixed end date that is more than 10 years after the date on which the refusal decision was made, the competent authority shall review the entry at least once every 10 years from the date on which the refusal decision was made, up until the date recorded in IMI as the fixed end date, and shall update the entry, immediately following each such review, to confirm that the refusal decision remains in force or, if the decision has been revoked, to add the revocation date in accordance with paragraph 2.
            
            
               5.If a refusal decision is revoked, the obligation in paragraph 3 or, as applicable, paragraph 4 shall cease to apply to the entry once it has been updated to add the revocation date in accordance with paragraph 2.
            
            
            
               Article 5
            
            
               Period for which information remains accessible in IMI 
            
            
               1.Information exchanged via IMI in accordance with this Regulation shall remain accessible in IMI for 10 years from whichever of the following dates, insofar as they are applicable to the refusal decision in question, is the latest one, taking account of any updates made pursuant to Article 4:
            
            
               (a)the date recorded in IMI as the date on which the refusal decision was made;
            
            
               (b)the date recorded in IMI as the date on which the entry was last updated to confirm that the refusal decision remains in force;
            
            
               (c)the date recorded in IMI as the fixed end date of the refusal decision.
            
            
            
               However, in the case of an entry in IMI subject to the obligation under Article 4(4), if the competent authority fails to comply with that obligation, the entry shall cease to be accessible in IMI on expiry of the deadline set by that Article for compliance with that obligation.
            
            
            
               2.Despite paragraph 1, for any refusal decision for which a date is recorded in IMI as the date from which revocation of the decision takes effect, the entry shall cease to be accessible in IMI on expiry of the period of 10 years from the date so recorded in IMI as the revocation date. 
            
            
            
            
            
               Article 6
            
            
               This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
            
         
         
            
               It shall apply from [OP: please insert the date that is 6 months from the date of publication of this Regulation in the Official Journal.]
            
            
               This Regulation shall be binding in its entirety and directly applicable in all Member States.
            
            
               Done at Brussels,
            
            
               
                     For the Commission
               
               
                     The President
                     Ursula von der Leyen