14 The marketing of replica firearms
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12761/10
COM(10) 404
| Commission report to the European Parliament and Council: The placing on the market of replica firearms
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| Legal base | —
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| Document originated | 27 July 2010
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| Deposited in Parliament | 8 September 2010
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| Department | Home Office
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| Basis of consideration | EM of 27 September 2010
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Clear
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Background
14.1 In 1991, the Council adopted a Directive establishing minimum
standards for the acquisition and possession of weapons ("the
Weapons Directive").[83]
Member States had to implement the Directive by 1 January 1993
— the date by which the internal market was to be established
— but remained free to maintain or introduce more stringent
measures than those specified in the Directive. The Directive
identifies four categories of firearms and requires dealers[84]
in the two most lethal categories to obtain authorisation to trade
in firearms and to maintain a register of traded firearms. The
Directive prohibits the acquisition and possession of the most
lethal category of firearms and specifies minimum criteria for
the acquisition and possession of certain other firearms based
on age (the purchaser or owner must be at least 18) and a risk
assessment of the likelihood of danger to the purchaser/owner,
to public order or to public safety. The Directive also regulates
the transfer of firearms from one Member State to another, requiring
in most cases the issuing of a licence or, if travelling with
a firearm, prior authorisation by the competent national authorities.[85]
The Directive does not affect Member States' right to take measures
to prevent the illegal trade in firearms.
14.2 In 2008, in response to police intelligence
showing an increase in the use of weapons that could be converted
into real firearms, the Directive was amended to include within
its scope "any portable barrelled weapon that … may
be converted to expel a shot, bullet or projectile by the action
of a combustible propellant". The amended Directive further
specifies that:
"an object shall be considered as being capable
of being converted to expel a shot, bullet or projectile by the
action of a combustible propellant if:
—it has the appearance of a firearm, and
—as a result of its construction or the material
from which it is made, it can be so converted."[86]
14.3 The 2008 Directive introduced a new requirement
for manufacturers to affix a unique marking to each assembled
firearm to enable it to be identified and traced; required Member
States to ensure strict controls on mail order purchases (if authorised)
of firearms and ammunition and to introduce, by the end of 2014,
a computerised database recording all firearms covered by the
Directive; required individuals to obtain a licence to purchase
or own the most lethal categories of firearms; and strengthened
controls on the activities of brokers.
14.4 The 2008 Directive also required the Commission
to produce a report for the European Parliament and the Council
presenting the conclusions of a study on the marketing of replica
firearms in EU Member States with a view to determining whether
further categories of replica firearms should be brought within
the scope of the Weapons Directive.
The Commission's report
14.5 The Commission reports that the Weapons Directive,
as amended, only applies to replicas which can be converted into
firearms. Replicas of this nature are so similar, in terms of
their appearance and manufacture, to real firearms, that the requirements
of the Directive concerning marking, traceability, and registration
are readily applicable. Other types of replica remain outside
the scope of the Directive.
14.6 The report notes that there is no common understanding
of the term "replica firearms":
"The term 'replicas' covers objects which differ
considerably from one Member State to another and vary greatly
in their nature, complexity and level of danger".[87]
Replicas may include, for example, reproductions,
imitations and copies, as well as a further category of "alarm
guns" — portable weapons which are not designed to
shoot solid projectiles, but which may shoot blanks, gas and teargas
cartridges. Some leisure activities, such as "airsoft"
— a game in which opposing teams use imitation plastic guns
to shoot plastic pellets — and the launchers used for "paintballs"
may use equipment which resembles real firearms.
14.7 Responses by Member States to a Commission questionnaire
reveal considerable differences as regards perceptions of risk
associated with replicas. According to the Commission, nine Member
States do not include the concept of a replica in their national
legislation; fifteen do, but none of these Member States reports
any significant security or public order issues concerning replicas,
or problems with transfers or imports from other countries. The
UK is in a minority of three Member States (the others are Portugal
and the Netherlands) which do have strict regulatory controls
on replicas, reproduction weapons or realistic imitations. So,
for example, Dutch law prohibits the sale and marketing of certain
replica firearms, regardless of whether they can shoot projectiles
or be converted into real firearms. The UK and Portugal require
specific colouring for realistic imitation firearms (the UK) or
for replicas for creative use (Portugal). Moreover, the Commission
reports that:
"The UK expresses a particular concern relating
to the fact that neighbouring countries generally have less restrictive
legislation on the marketing of certain alarm guns, the illegal
conversion of which is considered possible. As it is illegal to
place such alarm guns on the UK market (and therefore to import
them), controlling this ban involves additional operations on
the part of the responsible authorities."[88]
14.8 The Commission notes the difficulty of quantifying
the number of replicas in circulation or the degree of threat
that they present for the safety of property or persons. Certain
replicas, particularly alarm guns, are prevalent in some Member
States for reasons of self-defence.[89]
14.9 The report concludes that "there is very
little to suggest that European harmonisation of national legislation
on replicas would improve the functioning of the internal market
by removing barriers to the free movement of goods or by eliminating
distortions of competition". Member States already have "a
real discretion in issuing rules on the placing on the market
and use of replicas", and in regulating the acquisition,
possession and transfer of replicas. Bringing all replicas within
the scope of the Weapons Directive would, the Commission suggests,
be difficult for two reasons. First, it would necessitate a clear
definition of what is meant by a replica. Second, Member States'
responses to the Commission's questionnaire do not indicate that
problems associated with the trade in replicas are of such a magnitude
as to justify subjecting the manufacturers, dealers and owners
of replicas to all the obligations contained in the Weapons Directive.
The Government's view
14.10 The Parliamentary Under Secretary for Crime
Prevention (James Brokenshire) explains in his Explanatory Memorandum
of 27 September 2010, that the Firearms Act 1982 provides that
imitation firearms which are readily convertible into functioning
firearms are to be treated as such and subject to the controls
contained in the Act. The UK also has "robust measures"
in domestic legislation concerning realistic imitation firearms,
notably the Violent Crime Reduction Act 2006 and 2007 Regulations
on Realistic Imitation Firearms which prohibit the manufacture,
importation or sale of realistic imitation firearms, subject to
certain exceptions. Since these domestic measures came into force,
offences involving the use of realistic imitation firearms have
reduced significantly from a peak of 3,737 offences in England
and Wales in 2004-05 to 1,511 offences in 2008-09, but the Minister
adds that their misuse remains a concern.
14.11 The Minister notes the report's conclusion
that replica firearms should not be brought within the scope of
the Weapons Directive and indicates that it is open to the European
Parliament or the Council to draw a different conclusion. The
Minister says that the legal purchase of realistic imitation firearms
in other Member States can cause a problem of illegal importation
into the UK. He adds:
"Any proposal by the Commission to tackle these
problems across the EU could therefore be beneficial in terms
of ensuring consistency across Member States".
Conclusion
14.12 We understand that the Weapons Directive,
introduced as an internal market measure in 1991, is intended
to establish limitations on the free circulation of potentially
lethal goods and provide robust security guarantees to protect
the safety of individuals. Amendments made in 2008 ensure that
the most lethal imitations or replicas — those capable of
being converted into real firearms — are now included within
the scope of the Directive. This still leaves many different types
of replica firearms outside the scope of the Directive. For example,
fake weapons which look like real guns can be used to commit offences,
even though they may not be capable of being converted into real
firearms. At present, Member States are at liberty to introduce
their own controls and regulations to reflect national perceptions
of risk.
14.13 The Minister tells us that there has been
a significant and welcome reduction in the number of offences
committed in the UK which involve the use of realistic imitation
firearms since UK legislation prohibiting their manufacture, importation
and sale took effect in October 2007. This suggests that UK legislation
is having an effect. It is not clear whether further regulation
at EU level would increase the beneficial effect, not least because
the statistics provided by the Minister do not indicate how many,
if any, of the realistic imitations involved in the commission
of criminal offences in the UK were obtained as a result of illegal
importation from another EU Member State.
14.14 We note that the Commission's report has
been prepared for the European Parliament and Council and consider
that it merits further discussion at this level. As the report
simply presents the conclusions drawn by the Commission as a result
of its study on the marketing of replicas across the EU, we are
content to clear it from scrutiny but, in so doing, we ask the
Minister to keep us informed of the outcome of any further deliberations
at Council level.
83 Council Directive 91/477/EEC, OJ L 256, 13.9.1991,
p.51. Back
84
A dealer is defined in Article 1(2) as "any natural or legal
person whose trade or business consists wholly or partly in the
manufacture, trade, exchange, hiring out, repair or conversion
of firearms". Back
85
There are less onerous requirements for hunters and target shooters
who may apply for a European firearms pass. Back
86
Article 1(1) of Directive 2008/51/EC, OJ L 179, 8.7.2008, p.5. Back
87
Paragraph 2.2 of the report. Back
88
Paragraph 6.3 of the report. Back
89
For example, the Commission estimates that between 15 and 18 million
replicas are owned in Germany, of which most are alarm guns but
some are used for "airsoft". Back
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