Niels Kirst, PhD candidate, Dublin City University

Introduction

On December 3rd, 2019, the European Court of Justice (CJEU) delivered its final ruling on a case concerning Czech firearm regulations. This judgment, providing guidance on EU lawmaking, addressed key EU law principles and refined their interpretations. Following terrorist attacks in Paris and Copenhagen, the EU legislature utilized its single market powers (Article 114 TFEU) to pass Directive (EU) 2017/853, amending existing firearms Directives 91/477 and 2008/51/EC. The European Commission’s initial proposal gained momentum during the Dutch Council presidency in 2016. The Directive underwent a Trialogue process and received approval through a co-decision procedure by the European Parliament and the Council of the European Union. The Parliament endorsed the revised Directive on March 14th, 2017, with the Council following suit on April 25th, 2017. Only the Czech Republic, Poland, and Luxembourg opposed it, and the legislative process was met with criticism concerning political participation and accountability.

The Czech Republic strongly opposed the Directive. With a longstanding tradition of civilian firearm ownership, the Czech government and civil society groups feared negative impacts on their economy and cultural heritage. Outvoted in both Parliament and Council, the Czech Government challenged the Directive at the CJEU. They alleged a violation of the principle of conferral of powers (Article 5(2) TEU), the principle of proportionality (Article 5(4) TEU), the principle of legal certainty and protection of legitimate expectations, and the principle of non-discrimination. Supported by Poland and Hungary, the Czech Republic vigorously defended its political interests before the CJEU.

Earlier, Advocate General Sharpston suggested that the Czech Republic’s claims were unfounded and that the Court should uphold the Directive. Important precedents for this case were challenges against tobacco Directives by tobacco manufacturers, specifically British American Tobacco and Philip Morris Brands, concerning the legal basis for regulation. The trade, sale, and possession of tobacco in the single market fall between health protection and commerce. Similarly, firearms sit between security and commerce. The CJEU had to determine if Article 114 TFEU provided a suitable legal basis for measures primarily tightening firearm possession security standards or if this encroached upon Member States’ national sovereignty.

First Plea: Violation of the Principle of Conferral of Powers

The Czech Republic’s primary argument rested on an alleged breach of the principle of conferral of powers by the EU legislature. They argued that the new Directive’s objectives significantly differed from the 1991 and 2008 Directives, rendering Article 114 TFEU an inappropriate legal basis. They emphasized that an amended Directive shouldn’t introduce new objectives that deviate from the original legal foundation. By shifting focus to combating terrorism, the Czech Republic argued that the EU legislature overstepped its mandate by using internal market competence for these changes.

The Court engaged in a general analysis of the appropriate legal basis for adopting Directives or Regulations, explaining that new legislation could serve multiple purposes. The predominant purpose, however, dictates the proper legal basis. The Court then assessed the use of Article 114 TFEU, recognizing the fight against international terrorism as an objective of general interest for the EU, similar to how health was deemed a general interest in the British American Tobacco and Imperial Tobacco cases. The key question was whether safety and terrorism prevention had become the amended Directive’s primary focus, potentially invalidating Article 114 TFEU as the legal basis.

The Czech Republic argued the Directive should be analyzed in isolation, while the Parliament and Council contended it should be viewed within the context of the two prior Directives. The CJEU clarified that amended Directives must always be considered in light of their previous versions. Consequently, Directive 91/477 and the new Directive’s amendments served as benchmarks for determining the appropriate legal basis. The Court concluded that the EU legislature, by “adjusting the balance between the free movement of goods and security guarantees,” had merely adapted the firearm possession and acquisition rules in Directive 91/477 to evolving circumstances. The Court stated that the EU legislature is entitled to safeguard general interests recognized by the Treaty, as seen in the Vodafone and Others case.

Finally, referencing the assessment of the firearms Directive in Buhagiar and Others, the Court determined that the main objective of the measures, when considered alongside the earlier Directive, remained “the free movement of goods, approximation of laws, regulations and administrative provisions of the Member States, whilst circumscribing that freedom with safety guarantees that are suited to the nature of the goods at issue.” The Court recognized that firearms are inherently dangerous, not only to users but also to the public. Therefore, safety, as a general interest under the Treaty, can constitute a legitimate objective for a Directive based on Article 114 TFEU.

Second Plea: Violation of the Principle of Proportionality

The Czech Republic further claimed that the EU legislature lacked sufficient information during the drafting process to adequately assess the Directive’s proportionality. This argument stemmed from the European Commission bypassing an impact assessment before drafting the Directive. Although the Commission committed to conducting one through an interinstitutional agreement with Parliament under Article 295 TFEU, time constraints led them to rely on a previous REFIT evaluation instead. The Czech Republic deemed this insufficient.

The CJEU emphasized the broad discretion afforded to the EU legislature when evaluating and assessing legislative measures. The Court agreed with the Advocate General’s opinion that the Article 295 TFEU interinstitutional agreement commitment to perform an impact assessment was non-binding. They reasoned that the absence of an impact assessment does not automatically constitute a violation of the proportionality principle. Existing information can be sufficient for a meaningful assessment. After reviewing the studies considered by the EU legislature, including the REFIT evaluation, the Court found that they provided adequate grounds for a meaningful proportionality assessment of the new measures.

In the second part of their argument, the Czech Republic asserted that specific articles within the new Directive failed the EU’s proportionality test, arguing that their objectives could have been achieved through less restrictive means. They criticized the complete ban on semi-automatic firearms and stricter requirements for deactivated and antique firearms. While the judgment details the technical aspects of the contested measures, the Court first clarified that judicial review of legislative act proportionality is limited and cannot replace the EU legislature’s assessment. The Court’s role is to determine whether the legislature “manifestly exceeded” its broad discretion.

After examining the technical details surrounding the new prohibitions on certain semi-automatic firearms, the Court concluded that the Council and Parliament did not appear to have exceeded their broad discretion. The Court reached the same conclusion regarding the proportionality of measures concerning deactivated and antique firearms. The “manifestly inappropriate in relation to the objectives” standard sets a high bar for new legislation to be deemed disproportionate. Given their limited review power and capacity, the Court found the new measures satisfied the proportionality test.

Lastly, the Czech Republic argued that the Directive infringed upon the right to property as enshrined in the Charter of Fundamental Rights. The Court reasoned that Article 17 of the Charter is not absolute and can be limited in the interest of general EU interests or protecting the rights and freedoms of others. (Regarding the “right to property,” a comment on the SEGRO case provides further insight into the Court’s interpretation of Article 17 of the Charter.) The Court found the Czech Republic’s evidence insufficient to demonstrate a disproportionate interference with the right to property. A ban on semi-automatic firearms for safety reasons, the Court concluded, serves a general interest recognized in Article 17(1) of the Charter.

Third Plea: Violation of the Principle of Legal Certainty and the Protection of Legitimate Expectations

The Czech Republic’s third plea claimed that specific measures within the new Directive violated the principles of legal certainty and legitimate expectations. They argued that the Directive’s time requirements could lead to retroactive application and that its entry into force created unattainable expectations for individuals. Concerning legal certainty, the Court countered that the new Directive’s firearm classifications were clear and precise, thus not resulting in retroactive application. As for legitimate expectations, the Court highlighted that the EU legislature fulfilled its obligations by publishing the Directive in the Official Journal of the European Union in a timely manner. This provided individuals with adequate notice about the new rules’ effective date and the types of firearms they could purchase until then.

Fourth Plea: Violation of the Principle of Non-Discrimination

In their final plea, the Czech Republic argued that the “Swiss exception” (Article 6(6) of the contested Directive) discriminated against other EU nationals. This exception permits Swiss militia soldiers to retain their semi-automatic firearms after completing service. The Court reiterated that the principle of equality in EU law mandates that “comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.” The Court found that the Swiss Confederation and Member States are not comparable regarding this derogation. The Swiss Confederation possesses “proven experience and ability to trace and monitor persons and weapons concerned, which gives reason to assume that the public security and safety objectives” will be met. The Czech Republic failed to demonstrate that other states within the Schengen area have a similar system for mandatory military firearm subscription and transfer as Switzerland. Therefore, the Court dismissed the plea.

Comment

This thorough judgment concludes the legal dispute between the Czech Republic and the EU. Challenging legislation through legal means after being outvoted in the Council is a common practice in the EU, as seen in Spain v Parliament and Council. This case follows a similar pattern, with the Czech Republic pursuing legal action after being outvoted in the Council and unsuccessful in the Parliament. While pursuing legal channels is a logical step, the issue of firearm regulation is arguably more political than legal.

The contested Directive undeniably prioritizes security requirements for legal firearm owners. It prohibits civilian possession of semi-automatic firearms within the European single market. The Czech Republic’s argument centered on the limits of Article 114 TFEU, questioning whether this article is appropriate for tightening firearm possession regulations or if it falls under judicial cooperation in criminal matters, requiring adoption under Article 84 TFEU. As established in the Court’s tobacco case-law, Article 114 TFEU allows for broad interpretation. The Court maintained this approach, granting a prominent role to security as an objective within a Directive adopted under the single market competence of Article 114 TFEU.

The CJEU confirmed the EU’s legislative authority to raise the bar for firearm possession within the EU. As firearms are traded within the internal market, the EU is deemed the appropriate body for regulation, and the internal market competence is sufficient to harmonize firearm possession rules across Member States. This ruling necessitates convergence and adjustments in national firearm regulations. While some Member States already have stricter firearm possession laws than those outlined in the Directive, others, like the Czech Republic, must now amend their national legislation. This case demonstrates that even in highly political areas like firearm regulation, Member States must adhere to qualified consensus reached at the Council level.

Barnard & Peers: chapter 12

JHA4: chapter II:7

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