Austria: Export Of Firearms – Amendment To Austria's Second External Trade Ordinance

1. Provisions on the export control of firearms

Under art 14 et sequ and art 26 et sequ of Austria's External Trade Act (Außenwirtschaftsgesetz 2011 "AußWG"1) and under the direct applicable EU Regulation EU/258/20122 on Firearms ("Firearms Regulation") inter alia the export of certain defence goods3 from Austria to other EU member states or third countries is – with certain exemptions - subject to prior governmental authorization.4

The obligation to obtain an export license inter alia applies to the export of:

  • different types of automatic, semi-automatic, and single-shot, short or long firearms;5
  • ammunition for such firearms (complete rounds, cartridge cases, propellant powder, etc);6
  • Equipment7 (silencers, gun mountings, clips, flash suppressors, etc) and parts that are specifically designed for such firearms and are essential to their operation8 (barrels, frames or receivers, slides or cylinders, bolts or breech blocks, etc).

2. Exemptions and authorization requirements under the 2. AußWV (old)

Austria's Second External Trade Ordinance issued by the Minister for Economy (Zweite Außenwirtschaftsverordnung9) in the (now ineffective) version BGBl II No 58/2013 ("2. AußWV (old)") was in force until 3 July 2015. That version included:

  • exemptions of the obligation to obtain an export authorization for the export of certain firearms, which – due to their use, type and nature – generally do not contribute to the proliferation of illicitly-manufactured firearms or firearms trafficking;10

    The exemptions included inter alia the temporary export to third countries of sport- and hunting firearms for the personal use of authorized persons or the temporary export of certain firearms borne by public officials during their service.
  • the obligation to obtain an export authorization for the export of certain short rimfire firearms of calibre 12.7 mm or less (Handfeuerwaffen für Randfeuer-Hülsenpatronen) and especially constructed equipment for such firearms, if such firearms are not listed in the Common Military List.11

    The 2. AußWV (old) also clarified that such goods may not be exported to countries that are subject to EU- or UN-embargos.
  • the obligation to obtain an import authorization from the Minister of Economy for imports of defence goods originating from China.

3. Amendment to the 2. AußWV

On 4 July 2015, an amendment (BGBl II 190/2015) to the 2. AußWV came into force by which both, the abovementioned exemption for temporary exports of firearms and the obligation to obtain an export authorization for short rimfire firearms were abolished (the "Amendment").

The obligation to obtain an import authorization for the import of defence goods (as listed in the Common Military List) originating from China remains in force.12

4. Equivalent provisions in the Firearms Regulation

However, Austria's exporters of firearms do not face major material changes in the Austrian export regime, as the Amendment is a tool of "legal hygiene": as both the 2. AußWV (old) and the Firearms Regulation regulated similar matters, firearms exports had until recently been "double-regulated" by two different legal sources. By virtue of the Amendment, those national export regulations containing similar provisions as the direct applicable Firearms Regulation were abolished, as they were redundant:

  • The now-abolished exemption for the temporary export of sporting- and hunting firearms for personal use in art 1 2. AußWV (old) finds its equivalent in art 9 lit a Firearms Regulation, providing for a similar exemption.

    However, there are slight differences; eg the Firearms Regulation provides for a different maximum amount of rounds that can be exported without authorization than the 2. AußWV (old). The Firearms Regulation also sets out the exporter's requirement to substantiate to the competent authorities the reasons for the temporary export, in particular by producing an invitation or other proof of the hunting or sport shooting activities in the third country of destination. Such obligation was not expressly included in the 2. AußWV (old).
  • Pursuant to art 3 (1) lit c of the Firearms Regulation, the Firearms Regulation does not apply to firearms, their parts and essential components and ammunition when these are destined for the armed forces, the police, or the public authorities of EU member states. This provision reflects the now ineffective exemption for the export of firearms for the use of public officials as set out in art 1 2. AußWV (old).

    However, in contrast to the 2. AußWV 2011 (old), the Firearms Regulation fully excludes such firearms from its scope of application, whereas the 2. AußWV 2011 (old) only excluded the temporary export of firearms for public officials from the obligation to obtain an export license. Therefore, formally, the exemption for firearms borne by public officials in the Firearms Regulation is wider than the correlating exemption in the 2. AußWVO (old).
  • Similar to art 3 of the 2. AußWV (old), Annex I to the Firearms Regulation includes short rimfire firearms in its scope of application. Such firearms therefore remain subject to a national export authorization. Further, the prohibition to export such firearms to countries subject to an embargo is also imposed by directly applicable EU law13.

By abolishing the national regulations of the 2. AußWVO (old), the Firearms Regulations is now the main legal source for the export control of firearms (which are caught by the Firearms Regulation and the AußWG) from Austria.

5. Conclusion

The Amendment to the 2. AußWV (old) serves the purpose of reducing redundancies between the relevant national law and EU legislation. The Firearms Regulation is now the main legal source for the export of firearms from Austria. Even though the wording and certain legal tests of the 2. AußWV (old) and the correlating provisions of the Firearms Regulation differ from each other slightly, no major material changes to the current legislative situation are to be expected. However, exporters of affected firearms are well advised to revise their export practices and determine whether they are in compliance with the Firearms Regulation or if the Amendment may have effects on their exports.

Footnotes

1. BGBl I No 26/2011 as amended by BGBl I No 37/2013.

2. Regulation 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; OJ 2012 L 94/1.

3. As listed in Annex I of the Firearms Regulation and the Common Military List of the EU (2014/ C 107/01); cf art 1 (1) fig 4 AUßWG.

4. The export of certain war material (as listed in the War Material Ordinance – BGBl 627/1977) is not subject to an export authorization under the AußWG but under the Austrian War Material Act (Kriegsmaterialgesetz BGBl 540/1977 as amended BGBl I 161/2013); cf art 91 (2) fig 1 AußWG.

5. Cf art 14, 26 AußWG icw Pos ML1 of the Common Military List; art 4 icw Annex I fig 1-12 Firearms Regulation.

6. Cf art 14, 26 AußWG icw Pos ML3 of the Common Military List; art 4 icw Annex I fig 14 Firearms Regulation.

7. Cf art 14, 26 AußWG icw Pos ML1, ML3 of the Common Military List.

8. Cf art 14, 26 AußWG icw Pos ML3 of the Common Military List; art 4 icw Annex I fig 13 Firearms Regulation.

9. BGBl II 418/2011.

10. Cf art 1 2. AußWV (old).

11. Cf art 3 2. AußWV (old).

12. Cf art 4 2. AußWV (old).

13. Ie different EU Regulations (or Common Positions under the Common Foreign and Security Policy or Resolutions of the UN Security Council), setting out the restrictive measures (eg Regulation EU/401/2013 imposing restrictive measures against Myanmar, Regulation EU/747/2014 imposing restrictive measure against Sudan; Regulation EC/314/2004 imposing restrictive measures against Zimbabwe etc).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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