Niels Kirst (University Paris II – Panthéon-Assas)

Advocate General Sharpston (AG) issued an opinion on April 11, 2019, regarding the legitimacy of Directive 2017/853, known as the Firearms Directive. The Czech Republic challenged this directive, arguing that the European Parliament and the Council should not have used the internal market harmonization clause (Article 114 TFEU) as the legal basis for its adoption.

This case is noteworthy for several reasons. First, it centers around the crucial aspect of legal basis, drawing considerable attention from EU legal experts. Second, it highlights a recurring trend where the Czech Republic joins forces with Hungary and Poland to advocate for their shared interests, echoing the ongoing Case C-715/17 Commission v Poland concerning asylum-seeker relocation. Conversely, France and the Commission intervened in support of the Council and European Parliament. Third, the contested Directive 2017/853 amends Directive 91/477, which was the initial legislation setting minimum standards for civilian firearm acquisition and possession within the European Union (EU). (The 1991 Directive had been previously amended in 2008).

This case has a noteworthy background. Following terrorist attacks in Paris and Copenhagen, the Juncker Commission proposed stricter gun control measures for the EU, facing significant pushback from the Czech Republic. This opposition stems from the Czech Republic’s historically liberal gun ownership laws, dating back to the 18th century, which differ significantly from many other EU Member States. Considering its position as the seventh-largest postwar arms exporter globally, the Czech Republic had compelling reasons to oppose the directive.

Despite these objections, the directive passed under the ordinary legislative procedure on April 25, 2017, with a qualified majority vote in the Council. Only the Czech Republic, Luxembourg, and Poland voted against it. Previously, the European Parliament approved it in its first reading. Poland opposed the directive due to its stringent regulations, while Luxembourg sought even stricter firearm controls. (It’s important to note that the directive establishes minimum standards, allowing Member States to adopt stricter regulations unilaterally, as the UK does, for example.) Notably, the revised directive restricts many semi-automatic weapons.

The First Plea: Incorrect Legal Basis

Preliminary Observations

The Czech Republic’s primary argument was that the directive violates the principle of conferral of powers upon the European Union as stated in Article 5(2) TEU. Despite being adopted based on the EU’s internal market authority (Article 114 TFEU), the Czech Republic asserted that the directive’s true objective was not internal market harmonization regarding firearms but rather the prevention of crime and terrorism. Therefore, they argued it should have been enacted under Article 84 TFEU, which addresses crime prevention and falls within the Treaty provisions on freedom, security, and justice. Article 84 TFEU does not permit the harmonization of national law.

Article 114 TFEU

Initially, the AG examined the specific characteristics of Article 114 TFEU, which empowers the EU legislator to enact legislation aimed at realizing internal market goals. Highly relevant precedents for this case were British American Tobacco and Philip Morris Brands, both addressing whether EU legislation could protect consumer health using Article 114 TFEU as a legal basis. Drawing parallels, the AG highlighted Article 114(3) TFEU, which mandates considering consumer safety during legal harmonization (para 47).

However, the AG also acknowledged Germany v Parliament and Council, where the Court determined that harmonization under Article 114 TFEU has limits, as demonstrated by the ban on tobacco advertising.

The pivotal question for the AG was whether the directive removed barriers to the free movement of goods without overstepping the competences granted by Article 114 TFEU (para 50). The AG dismissed the argument presented by the Czech Republic, Hungary, and Poland that recitals 2 and 23 in the directive’s preamble, which mention crime prevention as an objective, alter its scope beyond the internal market’s purview (para 54).

Directive 2017/853

Next, the AG analyzed the directive’s substantive legal purpose and provisions, emphasizing that the ultimate legal consequences of the directive, not its recitals, are paramount (para 65). Citing Digital Rights Ireland, the AG asserted that combating serious crime represents a general interest objective for the EU (para 66).

The AG’s analysis employed a fourfold approach:

First, the AG recognized firearms as inherently dangerous, necessitating a security component in any related legislation (para 67).

Second, the directive fosters mutual trust among Member States for cross-border trade (para 68).

Third, it aims to harmonize technical trade barriers, including technical specifications (para 69).

Fourth, the directive facilitates enhanced cooperation between Member States (para 70).

Through this analysis, the AG concluded that the directive’s content does not substantively harmonize crime prevention (para 71). The assessment of the directive must consider the 1991 Directive, and simply changing recitals does not negate the internal market objectives.

The Second Plea: Proportionality

The Czech Republic’s second argument claimed a lack of proportionality in the directive, asserting that the adopted measures were demonstrably disproportionate to their intended goals for two reasons. Firstly, the Commission failed to conduct an impact assessment despite committing to do so in an interinstitutional agreement on better law-making. Secondly, the directive disproportionately interferes with the right to property, a fundamental right within the EU legal order.

This raised the question of whether an interinstitutional agreement is legally binding on EU institutions concerning impact assessment obligations – a question of broader EU significance. Hungary, in support of the Czech Republic, argued for the legally binding nature of such agreements, while the Parliament, Council, and Commission maintained that the obligation for impact assessments within an interinstitutional agreement is not binding.

The AG addressed these points by first recognizing that firearms are intrinsically hazardous. The EU legislator chose to regulate the entire lifecycle of a weapon within the internal market (para 87), a crucial consideration when evaluating the proportionality of the directive’s articles to their objectives. The parties argued, in part, that without an impact assessment, it’s impossible to determine if the directive’s provisions are genuinely proportionate.

Impact assessments are referenced in the interinstitutional agreement on better law-making, adopted based on Article 295 TFEU. The Court, in Commission v Council (para 49), had previously established the binding nature of such agreements between institutions. However, the AG determined that conducting an impact assessment is not mandatory in every single case. An omitted impact assessment does not invalidate an otherwise lawful directive.

In cases demanding urgent action, the AG argued that impact assessments may not always be feasible. Furthermore, the Court had affirmed in Poland v European Parliament and Council (para 159) that impact assessments are not binding on the Parliament or the Council. The key takeaway is that an absent impact assessment should not hinder the institutions’ ability to act.

The parties’ second argument pertained to the right to property. The AG determined that the right to own firearms is not a fundamental right in the EU, nor is it part of the ‘common constitutional traditions’ of the Member States. The right to property, as stated in Article 17 of the Charter, is a qualified, not an absolute, right. Consequently, the directive does not strip EU citizens of their right to property.

The Third Plea: Legal Certainty

The Czech Republic’s third plea asserted that the directive infringed upon the principle of legal certainty, presenting two primary arguments: i) insufficient clarity and precision in some of the directive’s provisions and ii) the potential for the directive to compel Member States to adopt domestic legislation with retroactive effects, thereby violating the principle of legitimate expectations.

The AG reiterated that legal certainty is a fundamental principle of EU law, as seen in Spain v Council (para 124). However, the AG deemed the wording of the articles sufficiently clear and precise to satisfy the requirements of legal certainty. Regarding potential retroactive effects, the AG emphasized that the principle of legitimate expectations also holds a fundamental place in EU law, as established in Agrargenossenschaft Neuzelle. However, because there was no assurance from the administration that weapon classifications would remain unchanged, the criteria for invoking this principle are not met.

In closing, the AG emphasized that these principles cannot be stretched to prevent the application of new rules to situations arising under prior regulations (para 132), thus rejecting the Czech Republic’s claims concerning legal certainty and legitimate expectations.

The Fourth Plea: Equal Treatment

Lastly, the Czech Republic argued that Article 6(6) of the directive (the Swiss exception) should be annulled due to its violation of the non-discrimination principle. As a Schengen associate, Switzerland is subject to Schengen-related legislation, including the directive. However, Switzerland enjoys exemptions from certain Schengen rules, including this directive. This exception stems from Switzerland’s conscription-based reserve army and is extended to states with such systems in place for over 50 years.

The AG began by reiterating that the principle of equal treatment is a general principle of EU law, as demonstrated in Arcelor Atlantique et Lorraine and Others. However, the AG concluded that only Switzerland maintains such a conscription system, and Member States (and Schengen associates) have distinct cultures and traditions. Therefore, this article cannot be considered discriminatory towards other Member States or Schengen associates.

Comments

This opinion prompts considerable reflection and delves into numerous general principles of EU law. It is unlikely to be well-received in the Czech Republic. A crucial takeaway is that institutions might be empowered to act without an impact assessment in urgent circumstances, even when bound by an interinstitutional agreement under Article 295 TFEU.

Moreover, if the Court adopts the AG’s opinion, it could signify further integration within European Union criminal law. Firearms are prevalent tools in criminal activities, and by tightening the requirements for gun owners across Member States, the EU legislator aims to influence crime prevention throughout the EU.

Finally, the opinion sheds light on the significance of the right to property within the EU legal framework, confirming that Article 17 of the Charter presents a qualified, not absolute, right to property. The AG clarifies that there is no fundamental right to own firearms under European Union law (para 104). It remains to be seen if the Court will ultimately agree with the AG’s opinion.

Barnard & Peers: chapter 11, chapter 12, chapter 25

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