13 Trafficking in Firearms
| (34793)
7933/13
COM(13) 154
| Draft Council Decision on the conclusion, 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 Organised Crime
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| Legal base | Articles 114, 207 and 218(6)(a) TFEU; qualified majority; EP consent
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| Department | Home Office
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| Basis of consideration | Minister's letter of 8 May 2013
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| Previous Committee Report | HC 86-xxxix (2012-13), chapter 10 (24 April 2013)
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| Discussion in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
13.1 The purpose of the draft Council Decision is to authorise
the European Union to conclude (ratify) a Protocol to the UN Convention
against Transnational Organised Crime. The Protocol seeks to
promote cooperation between State Parties to prevent and combat
the illicit manufacturing of, and trafficking in, firearms, including
their component parts and ammunition. Part I requires each State
Party to criminalise certain conduct; Part II sets out a variety
of prevention measures covering record-keeping, the marking of
firearms, licensing systems governing the import and export of
firearms, security measures to prevent the theft, loss or diversion
of firearms (particularly when crossing borders), the exchange
of information between competent national authorities, and brokering
activities. Part III makes provision for regional economic integration
organisations, such as the European Union, to ratify the Protocol.
13.2 Various Articles in Part II of the Protocol
have been implemented by EU measures establishing minimum harmonised
rules on firearms. A brief description can be found in our Fortieth
Report agreed on 24 April 2013. All of these measures, as well
as a 2001 Council Decision authorising the then European Community
to sign the Firearms Protocol, cite a combination of internal
market and/or common commercial policy legal bases. The Commission
considers that the adoption of these measures ensures that the
EU's legislative framework is fully compliant with those elements
of the Protocol falling within EU competence.
13.3 Annexed to the draft Council Decision is
a "declaration of competence" which sets out the scope
of EU competence in relation to the Firearms Protocol. The areas
of competence described correspond to the legislative measures
already adopted by the EU and are reflected in the choice of substantive
legal bases for the draft Decision — Articles 114 and 207
TFEU concerning the internal market and the common commercial
policy.
13.4 The Minister for Policing and Criminal Justice
(Damian Green) accepts that the EU has competence in relation
to many of the provisions contained in Part II of the Protocol
but also told us that the Protocol included some requiring State
Parties to criminalise certain activities or conduct. He said
that the Government would wish to consider whether a justice and
home affairs legal base in Title V of Part Three of the Treaty
on the Functioning of the European Union (TFEU) should be cited,
thereby triggering the application of the UK's Title V opt-in.
He expressed concern that "conclusion of the Protocol by
the EU means that the UK will be subject to all of its provisions",
including those establishing obligations in the justice and home
affairs field. We asked the Minister to explain why this would
be the case, given that the recitals to the draft Decision and
the accompanying declaration of competence appeared to limit the
authorisation given by the Council for EU approval of the Protocol
to those areas (principally in Part II) in which the EU had already
exercised competence by adopting legislative measures based on
EU Treaty provisions on the internal market and the common commercial
policy.
13.5 We suggested that the scope of the
declaration of competence annexed to the draft Decision could
be made clearer by including specific references to those Articles
of the Firearms Protocol which fall within the competence of the
European Union, and asked for the Minister's view. We also asked
him:
- whether he believed that the
draft Council Decision would establish obligations in the justice
and home affairs field for the EU, as opposed to Member States;
- to identify which, if any, Title V legal bases
should be cited; and
- to confirm whether or not the UK's Title V opt-in
applies.
The Minister's letter of 8 May 2013
13.6 The Minister first seeks to explain the
reasons for his assertion that conclusion of the Protocol by the
EU would mean that Member States would be subject to all of its
provisions.
"I accept that recital 6 to the draft Council
Decision and the accompanying declaration of competence may suggest
that the intention was not to go beyond those areas which were
negotiated by the Commission as being within EU competence. However,
I was concerned that this was undesirably ambiguous and that some
of the wording was less than clear.
"Although recital 6 starts by referring to the
fact that provisions of the Protocol fall within the scope of
competence conferred on the Union, this does not directly qualify
or limit the subsequent statement that the agreement should be
approved on behalf of the EU. Similarly, Article 1 is couched
in terms of the Protocol being approved on behalf of the EU and
Article 2 refers to depositing the instrument of approval in order
to express the consent of the EU to be bound by it. In neither
instance is there a clear reference to the precise Articles to
be covered.
"As the Committee recognizes, the wording could
be made clearer by including specific references to those Articles
of the Protocol within the competence of the EU which is why I
indicated [...] that we would be seeking further clarity on the
Union's intention.
"We are still pursuing this and preliminary
indications are that the Commission accept that the Union was
not authorised to negotiate on JHA matters and that they cannot
go beyond that authorisation to sign up to the Protocol as a whole.
This inference is reinforced by the fact that the Dossier does
not quote a JHA legal base and is silent on matters such as Articles
5 and 6 of the Protocol.[56]
"While this offers some reassurance, we share
your view that the scope of the declaration of competence annexed
to the draft Decision could be made clearer, perhaps by following
the formulation used when the EU ratified the parent Convention.
We will continue to pursue this possibility but even if we are
successful, there are still elements in those Articles which have
a bearing on the legal bases to be quoted."
13.7 The Minister identifies two provisions in
Part II of the Protocol which establish binding obligations in
the justice and home affairs field.
"Article 9 contains provisions in relation to
deactivated firearms and requires the establishment of specific
offences if appropriate to prevent the illicit reactivation of
deactivated firearms. Article 11 requires state parties to take
measures to increase the effectiveness of border controls and
police and customs trans-border co-operation. In our view these
provisions engage Articles 83 and 87 of the TFEU and as a result
fall within the scope of our JHA Opt-in Protocol. In our view
a Title V legal base should be cited to cover these binding JHA
obligations. However, even if we are not successful in persuading
others on this point we will nevertheless proceed to take an opt-in
decision, in line with the Government's view that the presence
of binding JHA obligations rather than the citation of a JHA legal
base is the trigger for our opt-in.
"You will wish to be aware that given the current
non-citation of a JHA legal base it is possible that the UK will
not be allowed its usual three month opt-in decision making period,
and that as a result unfortunately Parliament might not get its
full eight weeks to conduct scrutiny of the opt-in decision. We
will update you in due course when we know more about the Brussels
timetable for adoption of this measure."
13.8 The Minister continues:
"Your Committee drew attention to Article 83(1)
TFEU which confers competence on the EU to establish minimum rules
concerning the definition of serious criminal offences and sanctions
where there is a cross-border dimension but noted that they have
not yet done so. There is in fact a reference to criminal sanctions
in Recital 10 of Directive 2008/51/EC which amended the original
Weapons Directive 91/477/EC:
'In some serious cases, compliance with Articles
5 and 6 of the Protocol requires the application of criminal sanctions
and the confiscation of the weapons.'
"This wording was accepted at the time because
it amounted to no more than a description of the pre-existing
and extraneous requirements of the UN Firearms Protocol, which
requires the application of criminal sanctions. It was made clear
that we could not accept language that would imply additional
criminal law obligations created by the Directive itself."
13.9 Finally, the Minister explains that the
UK has not yet ratified the Firearms Protocol because the Government,
"saw merit in waiting until changes had been
made to European legislation rather than running the risk of having
to amend domestic legislation twice. Now this has been achieved,
we will consider ratification by the UK in its own right as soon
as the further changes have been made to our laws to secure full
compliance with the remaining requirements of the Protocol."
Conclusion
13.10 Our principal concern, in scrutinising
the draft Council Decision, is to establish whether it would authorise
the EU to exercise competence in the justice and home affairs
field. If it would, then we would have no difficulty in endorsing
the Government's position that a Title V legal base should be
cited and that the UK's Title V opt-in applies.
13.11 Whilst we share the Minister's concern
to ensure that EU approval of the Firearms Protocol does not extend
the competences of the EU or impose additional obligations on
the UK, we do not accept that the draft Decision is quite as ambiguous
as he suggests. For example, recital 6 states,
"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 Union."
We think that "insofar as" does qualify
approval of the Protocol by the EU. Moreover, the second sentence
of Article 1, which the Minister does not cite, also qualifies
the EU's approval by providing that,
"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 1."
13.12 The declaration of competence therefore
appears to be the crucial factor in delimiting the extent of EU
competence in relation to the Protocol.
13.13 As we indicated in our earlier Report,
we think that the declaration of competence annexed to the draft
Decision could be more explicit in identifying specific Articles
(and elements within them) which fall within the competence of
the EU and those which do not, and we urge the Government to pursue
this approach in negotiations. However, the Minister also suggests
that, even if the Commission were to do so, there are elements
within some of these Articles — notably Articles 9 and 11
— which establish binding obligations in the justice and
home affairs field. Article 9 envisages the establishment of
specific offences, "if appropriate", to prevent the
illicit reactivation of deactivated firearms, and Article 11 requires
each State Party to take "appropriate measures" to "increase
the effectiveness of import, export and transit controls, including,
where appropriate, border controls, and of police and customs
transborder cooperation".
13.14 Both Articles appear to suggest an element
of discretion in determining how they should be implemented and
could be considered exhortatory rather than legally binding.
Moreover, we are not clear on what basis the Minister considers
that the Commission has asserted an EU competence in relation
to these matters. Indeed, his letter acknowledges that "preliminary
indications are that the Commission accept that the Union was
not authorised to negotiate on JHA matters and that they cannot
go beyond that authorisation to sign up to the Protocol as a whole".
13.15 As we made clear in our Report, Opting
into international agreements and enhanced Parliamentary scrutiny
of opt-in decisions, we think that "a unilateral subjective
assessment of the content and legal effect of a multilateral agreement
will inevitably lead to legal uncertainty" and we remain
of the view that the citation of Title V legal base is necessary
to trigger the UK's Title V opt-in.[57]
As the Government take a contrary view, we ask the Minister to
inform us as soon as possible of the Government's opt-in decision
and to explain the reasons for, and consequences of, its decision.
Meanwhile, the draft Decision remains under scrutiny.
56 Article 5 requires State Parties to criminalise
certain conduct; Article 6 requires them to make provision for
confiscation, seizure and disposal of illicitly manufactured and
trafficked firearms. Back
57
Thirtieth Report of Session 2010-12, HC 955-I. Back
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