Thursday, 9 May 2019

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

Preliminary remarks

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.

Article 114 TFEU

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).

Directive 2017/853

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.

Comments

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
Photo credit: EuropeWord

5 comments:

  1. 1/2

    Although right to the point of the AG's opinion, there is a key information missing in this article. Let's take a step back to the basics - issue of legitimacy.

    1) The pretext for the EU Gun Ban were terror attacks. None of which was committed with a legal firearm, apart from Hypercacher (insufficiently deactivated firearm) and Copenhagen (stolen military firearm) all were committed with firearms illegally smuggled from Balcans. All of them were committed on civilians in countries where governments prevent people from having chance of defending self (legally carrying firearms for self defence). Prevent even those who really want to - primary example being chief editor of Charlie Hebdo, who was denied a license to be able to carry a firearm for self defense.

    Imagine being a Czech who has the right to carry firearm for personal protection (80% of licensed Czech gun owners have concealed carry license). And an EU politician tells you you would be safer if you are disarmed. That doesn't sound right, does it?

    2) From fall 2015 all the way to final vote in Parliament and Council the argument was safety and terrorism. Yet the Czech Republic was stripped of its veto right. Now the AG is claiming safety is just a side-issue, it is all about internal market. So was the Commission lying for two years or is the AG lying now?

    BTW do you remember that the Czech Republic was the last country to sign Lisbon Treaty? The story was "there will never be a majority vote in Council on an issue that is considered of vast importance to any country." Not only was that breached, but EU went a step further by abusing internal market procedure for a legislation on safety where there is no majority voting.

    3) We Czechs have historical experience than only Nazis and Communists were banning civilian firearms possession. Nothing good followed in either case. Now the idea comes from a guy who is unveiling statues to Marx (and believe me, that is not taken as a joke in countries where thousands were murdered by communists).

    We can see that the ban on possession and carrying of firearms for self defense in countries struck by terror attacks does not seem to work particularly well.

    Not only that but the size of the black market in countries like France or Belgium is quite frankly frightening to us. We have historical experience that people did not surrender firearms even when they faced summary execution during the German occupation. Why should they act differently now? Why should we expect different outcome as regards size of black market than in France or Belgium?

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    1. Whether the internal market powers were 'abused' is the legal issue here. It also determines whether a veto in fact existed. The AG opinion does not say that safety is irrelevant - rather that it is a factor having considered the criteria for use of the internal market powers. If you're going down the Godwin's Law route, I would note that nothing good came of the mass killings in Dunblane, Sandy Hook, Christchurch, Montreal etc etc etc etc etc etc

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    2. > The AG opinion does not say that safety is irrelevant

      You misread me. I did not claim that. I said that Commission spent two years drumming up safety, not mentioning internal market. But now suddenly AG is saying that safety was not primary concern as regards the directive to prove that stripping Czech Republic of the veto power was OK.

      > Godwin's Law route

      I am not going down the Godwin Route, I am pointing out something that is very much present in the Czech national debate about the EU Gun Ban and which may not be obvious to someone from outside of the Czech Republic.

      > nothing good came of the mass killings

      As regards the cases you mentioned: We do have effective system of gun laws which strike right balance between citizens' liberty, keeping legal firearms out of hands of clearly dangerous people and not feeding the black market. We don't need to have that balance upset by nonsensical EU Directive.

      Last but not least the perpetrator chooses the victim, the time, the place, the method as well as the tool to commit the act. Most plan the act up to two years in advance. As evidenced by the never ending series of terrorist acts in the EU committed with cars, bombs, knives and illegal firearms.

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    3. Legally what matters is the aim and content of the Directive, not what someone said in a public debate. Referring to Nazis and Stalin is textbook Godwin's Law. The UK restricted gun ownership without gulags or genocide.

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  2. 2/2

    4) EU Commission was tasked in 2008 to enact rules on deactivation of firearms - which stand completely outside of the area of legal live firing firearms. Then ONE such firearm was used during attack at Hypercacher (which was sold to the terrorist by a police informant in an operation aimed at following the black market).

    We saw no mea culpa from Commission for failing to enact the rules on deactivation for 7 years (which they did in the end through Regulation No. (EU) 2015/2403 - i.e. outside of the EU Gun Ban directive). We saw no mea culpa from French authorities for providing a terrorist with a gun in failed operation. No, we saw attack on rights of law abiding citizens as a result.

    Last, let me get back to the beginning, why it is an issue in countries like the Czech Republic (the case at hand) or Switzerland where they will have a referendum on implementation on May 19.

    In core EU countries, firearms are reduced to being dangerous sport or hobby tools. Like golf clubs, just more dangerous.

    But then you have countries like the Czech Republic, Switzerland or Finland, where civilian firearms possession is inherent part of providing security on either national or individual level.

    Saying that "[g]uns are one of the predominant tools for committing criminal acts" is not only contrary to our statistical and personal experience, but it is outright insulting to all legal gun owners.

    And in my opinion, it is insulting also to all the victims who were shot by illegal fireams without legal chance of defending self and then bled out waiting for autorities to respond. Waiting needlessly and bleeding for 2 hours 40 minutes in Bataclan, 40 minutes on a street in the middle of Strasbourg, and so on and on and on...

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