At the European Union level, acquisition and possession of weapons and related matters are regulated by two Directives: (1) Directive 91/477/EEC and (2) Directive 2008/51/EC. These Directives are designed to ensure control of acquisition and possession of weapons, facilitate the flow of firearms in a single market, and transpose into EU law the United Nations Protocol Against the Illicit Manufacturing and Trafficking of Firearms. Both Directives contain minimum requirements; EU Members are free to impose more stringent rules pertaining to firearms and many have done so.
Under Directive 91/477/EEC firearms are classified into four categories based on their level of dangerousness: (1) prohibited, (2) subject to authorization, (3) subject to declaration, and (4) those that are not subject to requirements.
In general, acquisition and possession of firearms is subject to a license and other qualifications that must be met by individuals, such as having a “good cause,” being at least eighteen years of age, and not being a danger to themselves or to society. Directive 2008/51/EC requires EU Members to ensure that any firearm or part thereof is marked and registered prior to entering the market. In addition, it requires EU Members, by December 2014, to establish a register of firearms, to which only designated authorities will have access. Dealers are also required to maintain a register of firearms.
The EU has also taken action at the external borders by adopting a Regulation in 2012 to impose controls on export authorizations for firearms. By doing so, the EU transposed into internal law article 10 of the UN Protocol. The Regulation prohibits the export of a firearm to anyone in a third country who is less than eighteen years old.
The European Union (EU) has not been immune to massacres similar to those that have plagued the United States in recent years. Several EU Member States, as diverse as Norway, Belgium, Finland, and France, have also experienced gun violence and mass shootings. In 2011, more than 5,000 murders (about 20% of all murders) in the EU were committed with firearms. Two consecutive nightclub shootings in France compelled the French authorities to vow to take steps to deal seriously with gun crime. The Interior Minister of France promised to “make the strict enforcement of gun regulations and the battle against illegal weapons priorities of my ministry.”
The unlawful entry and trafficking of illegal firearms coming from neighboring countries, such as the successor states to the former Yugoslav Republic, and from Middle Eastern and North African countries have also been identified as matters of concern for the EU Members individually and for the EU as a whole. In a November 2012 speech Cecilia Malmström, the EU Commissioner for Home Affairs, stated that the number of illicit firearms circulating in the EU today exceeds the number of registered hunters and sports shooters. Hunters and sports shooters number approximately 10 million in the EU.
In November 2011, in response to a questionnaire sent by the European Commission regarding recent trends in crime and offenses, and whether there was an increase in crime involving hunting and sporting guns, the EU Members responded mostly in the negative. A number of EU Members, such as Greece, Poland, Sweden, and Portugal, responded that they had experienced a slight or insignificant rise. Other EU Members, such as Belgium and Ireland, indicated that they had experienced a decline, whereas others, including, Austria Bulgaria, Hungary, Finland, the United Kingdom, and Spain reported stable numbers. The same trends were also discerned with regard to crimes involving other types of firearms, such as military firearms, which are prohibited.
Statistics for homicides committed by firearms in the twenty-seven EU Members can be found in the 2011 Global Study on Homicide, prepared by the United Nations Office on Drugs and Crime (UNODC). The Global Study opines that even though it is difficult to establish a link between firearms and homicides, there does seem to be a nexus between firearms availability and homicides. Pursuant to the study, the total number of intentional homicides in 2010 was estimated at 468,000 worldwide. More than 36% took place in Africa, 31% in the Americans, 27% in Asia, 5% in Europe, and 1% in Oceania.
Neither the Treaty on European Union nor the Treaty on the Functioning of the EU, as amended by the Lisbon Treaty in 2009, contain a right to bear arms for EU citizens. The existence of such a right would be subject to the different legal systems and constitutional traditions of the individual Member States, which are primarily responsible for internal security and public safety. The EU also shares competence to ensure “a high level of security” and to combat crime.
At the EU level, acquisition and possession of weapons and transfers between EU Member States are regulated by two directives: (1) Directive 91/477/EEC of June 1991 on Control of the Acquisition and Possession of Weapons, and (2) Directive 2008/51/EC Amending Directive 91/477/EEC. The impetus behind the first Directive was to facilitate the freedom of movement of firearms within the internal market and, at the same time, to introduce some safeguards concerning acquisition and possession of weapons. Two subsequent factors necessitated the adoption of the 2008 Directive. First, the signing on January 16, 2002, by the European Commission on behalf of the European Community of the United Nations Protocol on the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, annexed to the Convention Against Transnational Organized Crime; and, secondly, the need to address certain issues that arose during the implementation of Directive 91/477/EEC, which were cited by the Commission in its 2000 report. The United Nations Protocol obliged the EU to mark weapons at the time of manufacture and at the time of transfer from government stocks to civilian use, whereas Directive 91/477/EEC did not provide a clear obligation. In addition, the 2008 Directive increased the Protocol’s minimum time period for retaining firearms information in registers from ten to twenty years.
Directive 91/477/EEC as Amended by Directive 2008/51/EC
Directive 91/477/EEC established minimum requirements, thus giving EU Members the authority to impose stricter controls on the acquisition of weapons. By 2000, all the then-EU Members had transposed the Directive internally. Due to the flexibility granted to EU Members by the Directive no full harmonization has been achieved. For example, a number of EU Members have not adopted the classification of firearms prescribed by Directive 91/477/EEC, since national legislation either requires an authorization of all firearms or imposes a ban on all firearms. Moreover, some EU Members classify as “war weapons” or prohibit firearms considered to be hunting firearms in other Member States. Several Member States, such as France, Belgium, and Austria, had to amend their legislation on long firearms substantially because, prior to Directive 91/477/EEC, they had in place liberal laws and allowed the sale of sporting guns freely. Finally, the Directive does not regulate the carrying of weapons, hunting, or target shooting. As far as implementation of Directive 2008/51/EC, the deadline of July 28, 2010, was established. By July 2015, the Commission is expected to prepare a report on the Directive’s implementation, along with further proposals, if needed.
Whereas Directive 91/477/EEC distinguished between weapons and firearms, Directive 2008/51/EC abandons the distinction and opts for a new and precise definition of firearms. Thus, “firearm” is defined as “any portable barreled weapon that expels, is designed to expel or may be converted to expel a shot, bullet or projectile by the action of a combustible propellant,” unless it is excluded for one of the reasons listed in part III of Annex I. In addition, Directive 2008/51/EC, brings within its purview
an object which is 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.
Directive 2008/51 added new definitions pertaining to “parts,” “essential component,” “ammunition,” and other terms. Annex II of Directive 91/477/EEC provides a number of definitions pertaining to “short firearm,” “long firearm,” “automatic firearm,” “repeating firearm,” and others.
Annex I of Directive 91/477/EEC divides firearms into four categories depending on the level of dangerousness. EU Members may opt for stricter division or may move certain firearms from one group to another. The categories are as follows:
Category A –Prohibited
Category B – Subject to Authorization
Category C – Subject to Declaration
Category D – Other Firearms
Acquisition or possession of weapons by the armed forces, the police, the public authorities, or by collectors and bodies engaged with the cultural and historical aspects of weapons fall outside the scope of the Directive.
Acquisition and Possession of Firearms: Qualifications
Acquisition and possession of firearms is permitted only by those persons who have a license. Acquisition of firearms belonging to categories C and D is subject to a permit in accordance with national law.
Acquisition and possession of firearms is granted to people who have “good cause” and meet the following two additional qualifications:
(a) are at least 18 years of age, except in relation to the acquisition, other than through purchase, and possession of firearms for hunting and target shooting, provided that in that case persons of less than 18 years of age have parental permission, or are under parental guidance or the guidance of an adult with a valid firearms or hunting licence, or are within a licenced or otherwise approved training centre;
(b) are not likely to be a danger to themselves, to public order or to public safety. Having been convicted of a violent intentional crime shall be considered as indicative of such danger.
EU Members have the authority to withdraw authorization for possession if a person no longer meets these criteria.
In addition, EU Members do not have the authority to prevent residents from possessing a firearm that was acquired in another EU Member State unless such a firearm is banned within their territory.
Acquisition of Firearms Through Distance Communications
EU Members may authorize the sale of firearms through distance communications, including the Internet. “Distance contracts” are defined by article 2 of Directive 97/7/EC on the Protection of Consumers in Respect of Distance Contracts. Directive 97/7/EC establishes rules regarding the sale of goods or services between a buyer and a seller based on a distance contract for the protection of consumers. In such a case, they are obliged to subject acquisition of firearms to the rules of Directive 91/477/EEC and to control the acquisition of firearms by individuals, with the exception of dealers. Acquisition of firearms through the Internet by individuals who have been convicted by a final court judgment for serious criminal offenses must be prohibited.
Marking and Registration
An important requirement introduced by Directive 2008/51/EC is that all Member States must ensure that firearms can be linked to their owners at any time. EU Members must also ensure that any firearm or part that is placed on the market has been marked and registered or that it has been deactivated. In order to identify and trace each firearm, the Directive obliges EU Members, at the time of manufacture of each firearm, to either
- “require a unique marking that includes the name of the manufacturer, the country or place of manufacture, the serial number, and the year of manufacture (if not part of the serial number)”; or
- “maintain any other unique and user-friendly marking with a number or alphanumeric code” that allows easy identification of the country of manufacture by all Members.
EU Members are also required to register every firearm. To this end, by December 2014 they must establish and maintain a computerized data-filing system that allows designated authorities access to registered firearms. Firearms records, such as make, model, serial number, supplier’s information, and data on the person who acquires or possesses a firearm, are required to be kept for a minimum of twenty years.
Based on Directive 2008/51/EC, EU Members are required to establish rules regulating the activities of brokers and to include measures such as requiring the registration of brokers and the licensing or authorization of arms brokering activities.
European Firearms Pass
A European Firearms Pass, which was initially introduced by Directive 91/477/EEC, is issued by the authorities of a Member State upon request to a person who lawfully possesses and uses a firearm. The pass is nontransferable and is valid for a maximum period of five years, which can be extended. It also contains certain information, such as possession of any firearm by the holder or of any change or characteristic in the firearm and any loss or theft.
Certain Member States have issued large numbers of passes—Austria and France have approximately 38,000 and 39,378 holders of firearms passes, respectively—whereas in other Member States the pass is less widely used; in Italy, for example, there are close to 20,000 holders of firearms passes.
Controls on the Possession of Weapons at the External Borders of the EU
Directive 91/477/EEC deals with transfers of firearms for civilian use within the EU territory. A recent Regulation, No. 258/2012, establishes rules for export authorization and import and transit measures for firearms, their parts and components, and ammunition. The Regulation implements article 10 of the United Nations Protocol Against the Illicit Manufacturing of and Trafficking in Firearms. Article 10 requires signatories to adopt or improve administrative procedures designed to exercise control over the manufacturing, marking, import, and export of firearms. The scope of the Regulation covers firearms for civilian use and excludes firearms that are intended for military purposes. Any export of firearms, their parts, and essential components and ammunition is subject to an authorization granted by the competent authorities of the Member States where the exporter is established. Article 11 of Regulation No. 258/2012 requires EU Members to refuse to grant an export authorization if the applicant has a criminal record related to an offense listed in article 2(2) of the Council Framework Decision on the European Arrest Warrant or any other offense punishable by a maximum term of imprisonment of at least four years. EU Members are authorized to annul, suspend, or revoke an export authorization if the conditions for granting it are no longer met.
In November 2012, EU Commissioner Malmström called on the European Commission to address the following challenging issues in its 2013 communication on firearms and in its upcoming report on transposition and implementation of Directive 2008/51 by July 2015:
(a) Making the e-rules contained in Directives 91/477/ECC and 2008/51/EC more stringent. In this context, the Commission should
- examine whether certain very dangerous types of firearms should be forbidden for civilian use;
- adopt EU rules on deactivation of firearms—that is, firearms which have been declared incapable of being fired; and
- adopt EU rules on technical security features to the effect that only the rightful owner of a firearm can actually use it.
(b) Adopting EU legislation on common minimum rules on criminal sanctions for illicit firearms and trafficking.
(c) Improving cross-border cooperation among law enforcement authorities and examining whether EU agencies, such as Europol and Eurojust, should be more engaged to facilitate coordination and judicial cooperation.
(d) Reviewing the status of seized and confiscated firearms following investigation and prosecution of crimes by law enforcement authorities.
In a November 2011 questionnaire sent to the EU Member States on possible further mandatory restrictions on categories of firearms under EU legislation (referenced above), a number of EU Members, including Poland, the United Kingdom, Ireland, Denmark, and Latvia, expressed an interest in reducing the classification at the European level to two categories, in order to simplify the issue. Other Members stated their preference for continuing the freedom given to EU Members by the Directive and keeping the current classification to avoid further costs. Supporters of this position included Sweden, Italy, Hungary, and Belgium. Finally, a third group of states, including Slovakia, Netherlands, and Romania, which have already put in place their national systems based on two or three categories, indicated that they welcome the freedom granted by Directive 91/477/EEC.
Prepared by Theresa Papademetriou
Senior Foreign Law Specialist
- Mass Shootings in Europe, Belgian News, Expatica.com (Dec. 13, 2011), http://www.expatica.com/be/ news/local_news/mass-shootings-in-europe_195344.html. [Back to Text]
- Cecilia Malmström, EU Commissioner for Home Affairs, Speech at the Conference on the Fight Against Arms Trafficking: Where Do We Stand? at 2 (Nov. 19, 2012), http://europa.eu/rapid/press-release_SPEECH-12-841_en.htm (click icon for PDF version). [Back to Text]
- Ben McPartland, France Vows Crackdown After Nightclub Shootings, France 24 (July 10, 2012), http://www.france24.com/en/20120709-france-vows-gun-crackdown-after-nightclub-shootings-lille-bertry-theatro-vamos-balkans-kalashnikov. [Back to Text]
- Malmström, supra note 2, at 3. [Back to Text]
- Id. [Back to Text]
- Report from the Commission to the European Parliament and the Council, Possible Advantages and Disadvantages of Reducing the Classification to Two Categories of Firearms (Prohibited or Authorised) with a View to Improving the Functioning of the Internal Market for the Products in Question Through Simplification at 5, COM (2012) 415 final, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0415:FIN:EN:PDF. [Back to Text]
- Statistics cover the number of homicides by firearms, percentage of homicides by firearms, and homicides by firearms rate per 100,000 population. UNODC, 2011 Global Study on Homicide: Trends, Context, Data, http://www.unodc.org/documents/data-and-analysis/statistics/Homicide/Globa_study_on_homicide_2011_web.pdf. [Back to Text]
- Id. at 10. [Back to Text]
- Id. at 9. [Back to Text]
- Consolidated Version of the Treaty on European Union (TEU), 2012 Official Journal of the European Union [O.J.] (C 326) 13, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:326:0013:0046: EN:PDF; Consolidated Version of the Treaty on the Functioning of the European Union (TFEU), 2012 O.J. (C 327) 47, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2012:326:0047:0200:EN:PDF. [Back to Text]
- TFEU arts. 4.2(j) & 67. [Back to Text]
- Council Directive 91/477/EEC of 18 June 1991 on Control of the Acquisition and Possession of Weapons, 1991 O.J. (L 256) 51, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:3199 1L0477:en:HTML. [Back to Text]
- Directive 2008/51/EC of the European Parliament and of the Council of 21 May 2008 Amending Council Directive 91/477/EEC on Control of Acquisition and Possession of Weapons, 2008 O.J. (L 179) 5, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:179:0005:0011:en:PDF. [Back to Text]
- 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, New York, May 31, 2001, 2326 U.N.T.S. 211, http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY& mtdsg_no=XVIII-12-c&chapter=18&lang=en. [Back to Text]
- Report from the Commission to the European Parliament and the Council, the Implementation of Council Directive 91/477/EEC of June 18, 1991, on Control of the Acquisition and Possession of Weapons, COM (2000) 837 final (Dec. 15, 2000), http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2000:0837: FIN:en:PDF. [Back to Text]
- Directive 2008/51/EC, supra note 13, art. 4, para. 4. [Back to Text]
- Report from the Commission to the European Parliament and the Council, supra note 15. [Back to Text]
- Id. at 11. [Back to Text]
- Id. at 12. [Back to Text]
- Directive 2008/51/EC, supra note 13, art. 2. [Back to Text]
- Id. art. 17. [Back to Text]
- Id. art. 1(a). [Back to Text]
- Id. [Back to Text]
- Id. art. 1(b). [Back to Text]
- Directive 91/477/EEC, supra note 12, Annex II. [Back to Text]
- Id., Annex I. [Back to Text]
- Id. [Back to Text]
- Id. art. 2. [Back to Text]
- Directive 2008/51/EC, supra note 13, art. 1(3) (amending Directive 91/477/EEC to add art. 4a). [Back to Text]
- Id. art. 1, para. 4 (amending Directive 91/477/EEC art. 5). [Back to Text]
- Id. [Back to Text]
- Id. [Back to Text]
- Id. [Back to Text]
- Directive 97/7/EC on the Protection of Consumers in Respect of Distance Contracts, 1997 O.J. (L 144) 19, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1997:144:0019:0027:EN:PDF, as amended by Directive 2005/29/EC Concerning Unfair Business-to-Consumer Commercial Practices in the Internal Market and Amending [Directives 84/450/EEC, 97/7/EC, 2002/65/EC, and Regulation (EC) No. 2006/2004], http://eur-lex.europa.eu/Result.do?T1=V3&T2=2005&T3=29&RechType=RECH_naturel&Submit=Search. [Back to Text]
- Directive 2008/51/EC, supra note 13, recital 13. [Back to Text]
- Id. art. 1, para. 2 (amending Directive 91/477/EEC art. 4, para. 5). [Back to Text]
- Id. (amending art. 4, para. 1). [Back to Text]
- Id. (amending art. 4, para. 2). [Back to Text]
- Id. art. 2, para. 4. [Back to Text]
- Id. (inserting art. 4b). [Back to Text]
- Report from the Commission to the European Parliament and the Council, supra note 6, at 5. [Back to Text]
- 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 Organized Crime (UN Firearms Protocol) and Establishing Export authorisation, and Import and Transit Measures for Firearms, Their Parts and Components and Ammunition, 2012 O.J. (L 94) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:094:0001:0015:EN:PDF. [Back to Text]
- Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, supra note 14. [Back to Text]
- Regulation (EU) No. 258/2012, supra note 42, recital 8. [Back to Text]
- Id. art. 4. [Back to Text]
- Id. art. 11, para. 1(a) (citing 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures Between Member States – Statements Made by Certain Member States on the Adoption of the Framework Decision, 2002 O.J. (L 190) 1, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002F0584:en:HTML). [Back to Text]
- Id. [Back to Text]
- Id. [Back to Text]
- Malmström, supra note 2, at 4. [Back to Text]
- Report from the Commission to the European Parliament and the Council, supra note 6, at 7. [Back to Text]
Last Updated: 02/28/2014