Friendly Fire in the European Union? AG Sharpston’s opinion on the validity of the revised firearms Directive


EU Law Analysis: Friendly Fire in the European Union? AG Sharpston’s opinion on the validity of the revised firearms Directive

Friendly Fire in the European Union? AG Sharpston’s opinion on the validity of the revised firearms Directive

Niels Kirst (University Paris II
– Panthéon-Assas)                             
The recent opinion
by Advocate General Sharpston (hereafter: “AG”), which was released on 11th
April 2019, concerned the validity of Directive
2017/853
, the so-called firearms Directive. The Czech Republic claimed that
the European Parliament and the Council used the wrong legal basis, the
internal market harmonisation clause (Article
114 TFEU
), for adopting this Directive.
The case is
interesting for three reasons. First, the case deals with question of legal
basis, and has therefore gained significant attention from EU lawyers. Second, it
is yet another case in which the Czech Republic is acting jointly with Hungary
and the Republic of Poland (which intervened to support the Czech Republic) to
defend their common interest (see also the pending Case C-715/17 Commission
v Poland
, on relocation of asylum-seekers). On the other side, France
and the Commission intervened to support the Council and the European
Parliament. Third, Directive 2017/853, which was contested by the Czech
Republic, amended Directive
91/477
, which was the first legislative measure setting a minimum standard
regarding civilian firearms acquisition and possession in the European Union
(hereafter: “EU”). (The 1991 Directive had been previously
amended
in 2008)
There is a specific
prehistory to the case. After the terrorist attacks in Paris and Copenhagen,
the Juncker Commission proposed tightening
the gun laws
in the European Union. This was met by much
scepticism
on the Czech side. Why is this the case? The Czech Republic’s
gun laws differ tremendously from those of most Member States of the European
Union. The history of liberal gun possession in the Czech Republic stretches back
to the 18th century
. Therefore, the Czech Republic had a great interest to
oppose the Directive, also given the fact that it is the 7th
largest post-war arm exporter
in the world.
Having said that, the
Directive was finally approved under the ordinary legislative procedure on the
25th April 2017 with qualified majority voting in the Council, with only the
Czech Republic, Luxembourg and Poland voting against the Directive. Beforehand it
had been approved in the first reading by the European Parliament. While Poland
voted against the Directive, due to stringent norms, Luxembourg voted against
the Directive, since it wanted a stronger
regulation of firearms. (Note that the Directive only sets minimum standards, so
Member States can opt unilterally for higher standards, as the UK does, for
example) Among other things, the revised Directive prohibits many
semi-automatic weapons.
The first plea: wrong legal basis
The first claim of
the Czech Republic was that the Directive infringes the principle of conferral
of powers upon the European Union, which is enshrined in Article 5(2) TEU. This
Directive was adopted on the basis of the EU’s internal market powers (Article
114 TFEU), but the Czech Republic alleged that the aim of the Directive was not
minimum harmonisation in the internal market concerning guns, but instead the
prevention of crime and terrorism. Therefore, the Directive had to be adopted
under Article
84 TFEU
, which deals with crime prevention, and forms part of the Treaty
provisions on the area of freedom, justice and security. Article 84 TFEU does
not allow harmonisation of national law.
In a first step, the
AG analysed the particularities of Article 114 TFEU, which is designed to allow
the EU legislator to adopt legislation with the aim of achieving the objectives
of the internal market. The precedents which are highly relevant for this case
were British
American Tobacco
and Philip
Morris Brands
. Both cases concerned the question, if consumer health
may be protected on a European Union level by means of legislation with Article
114 TFEU as legal basis. In analogy, the AG draws attention towards Article 114
(3) TFEU, which defines that questions of consumer safety shall be taken into
account when harmonising the laws (para 47).
Having said that,
the AG also drew attention to Germany
v Parliament and Council
in which the Court found that such a
harmonisation under Article 114 TFEU is not without limits, as regards a ban on
advertising of tobacco products.
The yardstick
question for the AG was whether the Directive eliminates obstacles to free
movement, while not exceeding the competences under Article 114 TFEU (para 50).
The AG rejected the argument by the Czech Republic, Hungary and Poland that
recitals 2 and 23 in the preamble to the Directive, which mention crime
prevention as an objective, alter the scope in a way that it cannot be regarded
as falling under the auspices of the internal market any longer (para 54).
In a second step
the AG analyzed the substantive legal purpose and the provisions of the
Directive. The AG clarified that what matters are the ultimate legal effects of
the Directive and not the recitals (para 65). Further, the AG laid out, by
citing Digital
Rights Ireland
(discussed here),
that the fight against serious crime constitutes an objective of general
interest of the EU (para 66).
In her analysis the
AG followed a four-pronged approach. First, the AG found that firearms are
intrinsically dangerous goods, therefore any legislation concerning firearms
must contain a security aspect (para 67). Second, the Directive enhances mutual
confidence among the Member States in cross-border trade (para 68). Third, the Directive
aims to harmonize technical barriers to trade, which may include technical
specifications (para 69). Fourth, the Directive provides for a improved
cooperation among Member States (para 70).
By this analysis, the
AG derived the conclusion that the content of the Directive does not harmonize
crime prevention in any material sense (para 71), clarifying that the Directive
has to be assessed in the light of the 1991 Directive and that a mere change of
recitals does not indicate that the aims of the internal market are removed.
The second plea: proportionality
The second plea of
the Czech Republic was the alleged lack of proportionality of the Directive. The
Czech Republic argued that the measures adopted are manifestly disproportionate
to the objectives pursued, on two grounds. First, the Commission failed to
conduct an impact assessment, event though the Commission pledged to do so in
an interinstitutional
agreement
on better law-making. Second, the Directive interferes disproportionately
with the right to property, which is a fundamental right in the EU legal order.
The question arose,
if an interinstitutional agreement, as far as it concerns an impact assessment
obligation, is legally binding on EU institutions. This question is general
importance for the EU. Hungary argued in support of the Czech Republic that an
interinstitutional agreement shall be legally binding, while the Parliament,
the Council and the Commission maintained that the obligation to carry out an impact
assessment in an interinstitutional agreement is not binding.
The AG dissected
these questions starting by lying out that firearms are intrinsically
dangerous, and that the EU legislator decided to regulate the entire lifecycle
of a weapon in the internal market (para 87). This is important to keep in
mind, when verifying if the articles of the Directive are proportionate to the aims.
The arguments of the parties were among others that without an impact
assessment it cannot be assessed, if the provisions of the Directive are
actually proportionate.
Impact assessments
are referred to in the inter-institutional agreement on better law-making, adopted
on the basis of Article
295 TFEU
, and the Court had earlier found, in Commission
v Council
(para 49), that such agreements among the institutions can be
binding on them. However, in this case the AG found that there are no such
obligations to conduct an impact assessment in each and every case. An omitted
impact assessment cannot be a valid ground to annul a fully lawful Directive.
In case of urgent
actions, the AG argued, an impact assessment is not always possible. Further,
the Court had already confirmed, in the case of Poland
v European Parliament and Council
(para 159), that an impact assessment
itself is not binding on either the Parliament or the Council. The key
take-away is that an omitted impact assessment should not restrict possible
actions by the institutions.
The second argument
by the parties concerned the right to property. The AG determined that there is
no fundamental right to own firearms in the EU, nor does such a right form part
of the ‘common constitutional traditions’ of the Member States. The AG went on
by stating that the right to property as laid out in Article 17 of the Charter
is a qualified right, and not an absolute right. Therefore, the Directive does
not deprive citizens of the Union of their right to property.
The third plea: legal certainty
In its third plea
the Czech Republic argued that the Directive infringed the principle of legal
certainty. Its two main arguments were that i) some of the Directive’s
provisions are not sufficiently clear and precise enough and ii) the Directive would
force Member States to adopt domestic legislation, which will have a
retroactive effect, infringing the principle of legitimate expectations.
The AG reiterated
that the principle of legal certainty is a general principle of EU law, as seen
in the case of Spain
v Council
(para 124). Having said that, the AG regarded the wording of
the Articles as sufficiently clear and precise enough to meet the requirements
of legal certainty. Concerning the possible retroactive effects of the
Directive, the AG first reiterated that also the principle of legitimate
expectations is a general principle of EU law, as seen in Agrargenossenschaft
Neuzelle
. However, since there was no assurance by the administration
that the classifications of weapons would not be changed in the future, the
requirements to invoke that principle are not fulfilled.
Finally, the AG
reiterated that these principles cannot be stretched to the point of preventing
a new rule to apply to situations which arose under earlier rules (para 132).
Consequently, the AG rejected the claims of the Czech Republic concerning legal
certainty and legitimate expectations.
The fourth plea: equal treatment
In its last plea,
the Czech Republic argued that Article 6(6) of the Directive (the so-called
Swiss exception) should be annulled, since it violates the principle of
non-discrimination. Switzerland is a Schengen associate; therefore, all Schengen-related
legislation (such as the Directive) also applies to Switzerland. Having said
that, there are certain areas in which Switzerland enjoys an exception from Schengen-related
rules. This Directive is one of those cases, since Switzerland has a reserve
army based on conscription, and there is an exception for States which have had
such a system for more than 50 years.
In a preliminary
step the AG reiterated that the principle of equal treatment is a general
principle of EU law, as seen in Arcelor
Atlantique et Lorraine and Others
. However, the AG concluded its common
ground that only Switzerland has such a system of conscription, further, Member
States (and Schengen associates) differ in their culture and tradition,
therefore, this article cannot be regarded as discriminatory towards other
Member States and Schengen associates.
The opinion gives
much food for thought and discusses numerous general principles of EU law. Surely,
the opinion will not be welcomed in the Czech Republic. As a key take-away, it
is important to note that the institutions might be capable to act without an impact
assessment in urgent situations, even when they have subscribed to an
inter-institutional agreement under Article 295 TFEU.
Furthermore, the
opinion, if followed by the Court, can be seen as a further integration in the
area of European Union criminal law. Guns are one of the predominant tools for
committing criminal acts, and by tightening the requirements for gun holders in
the Member States, the EU legislator aims to impact upon on crime prevention in
the European Union.
Finally, the
opinion gives guidance on the importance of the right to property in the EU’s
legal order, confirming that the right to property as laid down in Article 17
of the Charter is a qualified right and not absolute. Further, the AG
illustrates that there is no such thing as a fundamental right to possess guns
in the European Union legal order (para 104). It will be interesting to see if
the Court follows the opinion of the AG.
Barnard &
Peers: chapter 11, chapter 12, chapter 25



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