Judgments nº C-482/17 of Tribunal de Justicia, December 03, 2019
|Resolution Date:||December 03, 2019|
|Issuing Organization:||Tribunal de Justicia|
(Action for annulment - Approximation of laws - Directive (EU) 2017/853 - Control of the acquisition and possession of weapons - Validity - Legal basis - Article 114 TFEU - Amendment of an existing directive - Principle of proportionality - Absence of impact assessment - Interference with the right to property - Proportionality of the measures adopted - Measures creating barriers in the internal market - Principle of legal certainty - Principle of the protection of legitimate expectations - Measures obliging Member States to adopt legislation with retroactive effect - Principle of non-discrimination - Derogation for the Swiss Confederation - Discrimination affecting Member States of the European Union or Member States of the European Free Trade Association (EFTA) other than that State)
In Case C-482/17,
ACTION for annulment under Article 263 TFEU, brought on 9 August 2017,
Czech Republic, represented by M. Smolek, O. Serdula and J. Vláčil, acting as Agents,
Hungary, represented by M.Z. Fehér, G. Koós and G. Tornyai, acting as Agents,
Republic of Poland, represented by B. Majczyna, M. Wiącek and D. Lutostańska, acting as Agents,
European Parliament, represented by O. Hrstková Šolcová and R. van de Westelaken, acting as Agents,
Council of the European Union, represented initially by A. Westerhof Löfflerová, E. Moro and M. Chavrier, subsequently by A. Westerhof Löfflerová and M. Chavrier, acting as Agents,
French Republic, represented by A. Daly, E. de Moustier, R. Coesme and D. Colas, acting as Agents,
European Commission, represented by M. Šimerdová, Y.G. Marinova and E. Kružíková, acting as Agents,
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Arabadjiev (Rapporteur), A. Prechal, M. Vilaras, M. Safjan and I. Jarukaitis, Presidents of Chambers, T. von Danwitz, C. Toader, D. Šváby and F. Biltgen, Judges,
Advocate General: E. Sharpston,
Registrar: C. Strömholm, Administrator,
having regard to the written procedure and further to the hearing on 5 March 2019,
after hearing the Opinion of the Advocate General at the sitting on 11 April 2019,
gives the following
1 By its application, the Czech Republic seeks, principally, the annulment of Directive (EU) 2017/853 of the European Parliament and of the Council of 17 May 2017 amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons (OJ 2017 L 137, p. 22; ‘the contested directive’) or, in the alternative, the partial annulment of Article 1(6), (7) and (19) of that directive.
2 According to the first to fifth recitals of Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons (OJ 1991 L 256, p. 51):
‘Whereas Article 8a of the Treaty provides that the internal market must be established not later than 31 December 1992; whereas the internal market is to comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty;
Whereas, at its meeting in Fontainebleau on 25 and 26 June 1984, the European Council expressly set the objective of abolishing all police and customs formalities at intra-Community frontiers;
Whereas the total abolition of controls and formalities at intra-Community frontiers entails the fulfilment of certain fundamental conditions; whereas in its white paper “Completing the internal market” the Commission stated that the abolition of controls on the safety of objects transported and on persons entails, among other things, the approximation of weapons legislation;
Whereas abolition of controls on the possession of weapons at intra-Community frontiers necessitates the adoption of effective rules enabling controls to be carried out within Member States on the acquisition and possession of firearms and on their transfer to another Member State; whereas systematic controls must therefore be abolished at intra-Community frontiers;
Whereas the mutual confidence in the field of the protection of the safety of persons which these rules will generate between Member States will be the greater if they are underpinned by partially harmonised legislation; it would therefore be useful to determine [categories] of firearms whose acquisition and possession by private persons are to be prohibited, or subject to authorisation, or subject to declaration.’
3 Part II of Annex I to Directive 91/477 provides for firearm categories A, B, C and D. Article 6 of that directive prohibits, in principle, the acquisition and possession of category A weapons, Article 7 thereof requires an authorisation for category B weapons and Article 8 thereof lays down the obligation to declare category C weapons. Article 5 of that directive defines the conditions to be met by persons wishing to acquire or possess a firearm and, under Chapter 3 of Directive 91/477, Articles 11 to 14 thereof determine the formalities required for the movement of firearms between Member States.
4 Directive 2008/51/EC of the European Parliament and of the Council of 21 May 2008 amending Directive 91/477 (OJ 2008 L 179, p. 5) amended the latter, in particular with a view to incorporating into EU law the United Nations’ Protocol against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, annexed to the United Nations Convention against transnational organised crime, which was signed, on behalf of the European Community, on 16 January 2002, by the Commission, in accordance with Council Decision 2001/748/EC of 16 October 2001 (OJ 2001 L 280, p. 5).
5 The amendments made include the establishment of detailed requirements concerning the marking and registration of firearms in Article 4 of Directive 91/477, as amended by Directive 2008/51, and harmonisation of the rules applicable to the deactivation of firearms in the second paragraph of Part III of Annex I to that directive, as amended. Directive 2008/51 also inserted, in Article 17 of Directive 91/477, the obligation for the Commission to submit a report to the European Parliament and to the Council of the European Union, by 28 July 2015 at the latest, on the situation resulting from the application of that directive, accompanied, if appropriate, by proposals.
6 On that basis, the Commission adopted a communication addressed to the Council and the European Parliament on 21 October 2013, entitled ‘Firearms and the internal security of the EU: protecting citizens and disrupting illegal trafficking’ (COM(2013) 716 final), which described certain problems posed by firearms in the European Union and announced the establishment of a series of studies and consultations with stakeholders, which were to be followed, if necessary, by the presentation of a legislative proposal.
7 By the publication of the report from the Commission to the European Parliament and the Council of 18 November 2015, entitled ‘Evaluation of Directive [91/477], as amended by Directive [2008/51]’ (COM(2015) 751 final) (‘the REFIT evaluation’), the Commission completed its examination of the implementation of Directive 91/477 and paired it with a proposal for a directive of the European Parliament and of the Council of 18 November 2015 amending Directive 91/477 (COM(2015) 750 final), which included an explanatory memorandum and became the contested directive.
The contested directive
8 According to recitals 1, 2, 6, 9, 15, 20, 21, 23, 27, 33 and 36 of the contested directive:
‘(1) [Directive 91/477] established an accompanying measure for the internal market. It created a balance between, on the one hand, the commitment to ensure a certain freedom of movement for some firearms and their essential components within the European Union and, on the other hand, the need to control that freedom using security guarantees suited to those products.
(2) Certain aspects of [Directive 91/477] need to be further improved in a proportionate way, in order to address the misuse of firearms for criminal purposes, and considering recent terrorist acts. In this context, the Commission called in its communication of 28 April 2015 on the European Agenda on Security, for the revision of that Directive and for a common approach on the deactivation of firearms to prevent their reactivation and use by criminals.
(6) In order to increase the traceability of all firearms and essential components and to facilitate their free movement, those products should be marked with a clear, permanent and unique marking and registered in the data-filing systems of the Member States.
(9) In view of the dangerous nature and durability of firearms and essential components, in order to ensure that competent authorities are able to trace firearms and essential components for the purpose of administrative and criminal proceedings and taking into account national procedural law, it is necessary that records in the data-filing systems be retained for a period of 30 years after the destruction of the firearms or essential components concerned. Access to those records and all related personal data should be restricted to competent authorities and should be permitted only up until 10 years after the destruction of the firearm or essential components concerned for the purpose of granting or withdrawing authorisations or for customs proceedings, including the possible imposition of administrative penalties, and up until 30 years after the destruction of the firearm or essential components concerned where that access is necessary for the enforcement of criminal law.
(15) For the most dangerous firearms, stricter rules should be introduced into [Directive 91/477] in order to ensure that those firearms are, with some...
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