Court of Justice of the European Communities (including Court of First Instance Decisions)

SUPPLEMENTARY OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 7 September 2023 (1)

Case C‑234/21

Défense Active des Amateurs d’Armes ASBL,

NG,

WL

v

Conseil des ministres

(Request for a preliminary ruling
from the Cour constitutionnelle (Constitutional Court, Belgium))

(Reference for a preliminary ruling – Reopening of the oral procedure – Approximation of laws – Control of the acquisition and possession of firearms – Prohibited firearms – Directive 91/477/EEC – Article 7(4a) – Transitional arrangements for certain semi-automatic firearms – Article 17(1) of the Charter of Fundamental Rights of the European Union – Right to property – States not empowered to make transitional arrangements for blank-firing weapons – Impounding without compensation)

I.      Reopening of the oral procedure before the Court of Justice

1.        The Cour constitutionnelle (Constitutional Court, Belgium) asked the Court of Justice to rule on the validity of Article 7(4a) of Directive 91/477/EEC. (2) It considered that that provision might come into conflict with the rights to equality before the law, non-discrimination and property provided for in Articles 20, 21 and 17 respectively of the Charter of Fundamental Rights of the European Union (‘the Charter’), and with the principle of the protection of legitimate expectations.

2.        The Court decided to refer the case to the First Chamber, before which a hearing was held on 19 September 2022. On 24 November 2022, I delivered my Opinion. (3)

3.        The First Chamber later decided, in accordance with Article 60(3) of the Rules of Procedure of the Court of Justice, to propose that the case be reassigned to a formation composed of a greater number of judges.

4.        The Court agreed to that proposal and reassigned the case to the Grand Chamber, which, by order of 28 February 2023, reopened the oral procedure and invited the interested parties to attend a new hearing focused on the following questions:

‘(1)      What factors are relevant to an examination, in accordance with Article 20 of the Charter …, of the comparability of the respective situations of weapons newly classified in categories A.6 to A.8, and of weapons recently classified in category A.9, and of their respective owners:

(a)      the fact that the EU legislation prior to Directive 2017/853 was applicable without distinction to all of the arms in question, as proposed by the Advocate General in his Opinion of 24 November 2022,

(b)      the purpose and objectives of Article 7(4a) of Directive 91/477/EEC, introduced by Directive 2017/853, namely, to protect acquired rights within the strict limits of what the EU legislature considered consistent with safeguarding legal certainty, in the light of the different legal regimes in place in the Member States,

(c)      the situation of the holders and owners of the weapons affected, who benefit from the guarantees of the Charter and have acquired their weapons legally?

(2)      What are the limits of the discretion given to the EU legislature to take the same approach to different situations in the case where the fundamental rights of citizens may be affected? In particular, may such a generic approach be taken to address situations that affect public safety, at the risk of infringing the fundamental rights of some of the persons affected, such as those guaranteed by Articles 17 and 20 of the Charter?

(3)      In the event that the exclusion from the transitional arrangements provided for in Article 7(4a) of Directive 91/477 of weapons classified in category A.9 rather than in one of categories A.6 to A.8, simply because they have been converted to firing blank ammunition, infringes Article 17 or Article 20 of the Charter, could Article 7(4a) be interpreted, in keeping with those fundamental guarantees, as meaning that it includes all weapons meeting the criteria for categories A.6 to A.8 which have previously been authorised, whether or not they have been converted to firing blank ammunition? Could such a consistent interpretation be extended to weapons which could have been previously authorised if the Member State concerned had made provision for doing so?

(4)      In the event that the principle of equal treatment enshrined in Article 20 of the Charter is infringed, would such an infringement necessarily constitute an infringement of Article 17 of the Charter, in so far as the legal basis of the limitation of the right to property in question would be vitiated by the infringement of Article 20 of the Charter?

(5)      If a joint reading of Article 6 and Article 7(4a) of Directive 91/477 were to imply that that directive itself imposes an obligation on Member States, without leaving them any margin of discretion, to expropriate the owners of category A.9 weapons, would it fall to the EU legislature or to the Member States, in accordance with Article 17 of the Charter, to provide for compensation for the owners of weapons having to be impounded? What are the possible implications in that regard of the judgment of 21 May 2019, Commission v Hungary (Usufruct Over Agricultural Land) (C‑235/17, EU:C:2019:432, paragraphs 125 to 128)?’

5.        The Belgian Government, the European Parliament, the Council of the European Union and the European Commission provided responses to those questions at the hearing held on 8 May 2023.

II.    Assessment

6.        At the Court’s request, I shall confine this supplementary Opinion to an analysis of the fourth and fifth questions which I have just reproduced.

7.        As regards the facts and the (EU and national) legal framework within which the request for a preliminary ruling is made, I refer to points 13 to 20 of the first Opinion.

8.        I also refer to, but do not need to reproduce, those parts of the first Opinion in which I formed the view that Article 7(4a) of Directive 91/477 is invalid because it infringes Articles 17 and 20 of the Charter.

9.        I shall therefore confine my submissions to setting out my views on the fourth and fifth questions raised by the Court, and on the observations made in relation to them by those who attended the hearing on 8 May 2023.

A.      Fourth question raised by the Court

10.      The Court raises this question ‘in the event that the principle of equality enshrined in Article 20 of the Charter is infringed’. Starting from that premiss, it asks whether such an infringement ‘would necessarily constitute an infringement of Article 17 of the Charter, in so far as the legal basis for the limitation of the right to property in question would be vitiated by the infringement of Article 20 of the Charter’.

11.      The wording of the question therefore makes it unnecessary to restart the debate as to the comparability of the two categories of firearm holder (4) to whom Article 7(4a) of Directive 91/477 affords unequal treatment without reasonable justification. The premiss underlying the question is, as I have said, that the situations are comparable and the holders of different categories of weapon have received treatment contrary to the principle of equality.

12.      At the hearing, two clearly differentiated positions were put forward on that question.

–      The Belgian Government maintained that an infringement of Article 20 of the Charter entails an infringement of Article 17(1) thereof.

–      The Parliament and the Commission (5) dismissed the link between Article 17(1) and Article 20 of the Charter. In support of their position, they argued that weapons in category A.9 are included in the transitional arrangements provided for in Article 7(4a) of Directive 91/477, as amended by Directive (EU) 2017/853. (6)

13.      The fact is that not every infringement of the right to equality before the law will necessarily entail a breach of Article 17(1) of the Charter. (7) Only by analysing the individual case will it be possible to determine whether one infringement triggers the other (that is to say, an expropriation of legitimate rights warranting ‘fair compensation … for their loss’) or whether, rather, the two articles of the Charter are the subject of two respective parallel infringements.

14.      If the transitional arrangements provided for in Article 7(4a) of Directive 91/477 did not exist, the unequal treatment of the holders of one category of weapons as compared with those of another would not have taken place. However, in the absence of any transitional arrangements, the absolute prohibition on keeping (lawfully acquired) semi-automatic weapons that is imposed on some but not on other holders in comparable situations is enough in itself to support a declaration as to the invalidity of that provision for infringement of Article 20 of the Charter.

15.      Since that provision of Directive 91/477 is fundamentally flawed, the fact that it causes certain holders to have their weapons expropriated also infringes Article 17(1) of the Charter because it disregards the guarantees provided for therein. In my opinion, therefore, what we have here is a twofold infringement of rights under the Charter.

B.      Fifth question put by the Court

16.      The fifth question posits the hypothesis that a joint reading of Article 6 and Article 7(4a) of Directive 91/477 shows that that directive itself imposes an obligation on Member States, without leaving them any margin of discretion, to expropriate category A.9 weapons from their owners.

17.      Taking that hypothesis as its basis, what the Court wished to ascertain from those attending the hearing was whether it fell to the EU legislature or the Member States, in accordance with Article 17 of the Charter, to provide for compensation for the owners of weapons having to be impounded. (8)

18.      Opinion was, once again, divided.

–      The Belgian Government takes the view, based on the judgment of 21 May 2019, (9) that any expropriation must give rise to an entitlement to compensation. In its view, Directive 91/477, as amended by Directive 2017/853, was appropriately transposed in Belgium. It is Directive 91/477 itself which contains an inequality which would be corrected only by transitional arrangements in favour of those having lawfully acquired blank-firing weapons. It therefore fell to the EU legislature to provide for compensation.

–      The Parliament, the Council and the Commission concurred, in essence, that, even though Directive 91/477 does not provide for compensation, neither does it prevent Member States from being able, or even obliged, to provide for it in national legislation, since they are bound by Article 17(1) of the Charter.

19.      In my first Opinion, I noted that it is true that the EU legislature may make it impossible to retain ownership of previously and lawfully acquired blank-firing weapons on the grounds of the use of property in the general interest within the meaning of the third sentence of Article 17(1) of the Charter.

20.      However, if the EU legislature decides to do so in the case of one category of (previously and lawfully acquired) weapons which, since they do not qualify for the general exceptions available, are suitable only to be abandoned or permanently deactivated, it will honour the guarantee of the right to property only by compensating the dispossessed holder.

21.      No provision is made for compensation in Directive 91/477, as amended by Directive 2017/853. In leaving Member States no discretion to regulate the fate of semi-automatic weapons adapted to fire blank ammunition, Directive 91/477 (as amended) makes it impossible for those States to be held liable for the (compulsory) impounding of weapons.

22.      In this case, capacity to be held liable lies only and exclusively with the EU institutions: it is they who put in place a legal regime under which, in the absence of a transitional period, a whole category of firearms cannot continue to be owned, even though they had been legitimately acquired by their holders.

23.      The nub of the debate therefore lies in the compensation owed for immediate deprivation. The criteria set out in the judgment in Commission v Hungary (Usufruct Over Agricultural Land) are relevant here.

24.      Particularly apposite is the Court’s examination in that judgment of the second sentence of Article 17(1) of the Charter.

–      A person may be deprived of his or her property ‘only in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for [its] loss’.

–      Compensation, which is one of the conditions laid down by the Charter if a person is to be deprived of his or her property, must be provided for by law.

–      A rule of national law depriving a person of his or her property must provide, in a clear and precise manner, for that loss to give rise to an entitlement to compensation and for the conditions of that compensation. (10)

25.      Now, those criteria for the interpretation of Article 17(1) of the Charter are as applicable to the law of the Member States as they are to (secondary) EU law. Legislation, whether of a Member State or of the European Union, which provides for the expropriation of property, must contain provisions which make compensation available to the dispossessed holders of rights and lay down the conditions governing that compensation.

26.      If that were not the case, the Court would lay itself open to the criticism that it applies two standards, one for Member States and the other for EU institutions, when it comes to interpreting the Charter. The latter does not provide a basis for asserting the existence of a double standard of adjudication depending on whether the assessment of legality is founded on provisions of national or EU law.

27.      After all, the provisions of the Charter ‘are addressed to the institutions, bodies, offices and agencies … of the Union … and to the Member States … when they are implementing Union law’ (Article 51). Consequently, the case-law set out in the judgment in Commission v Hungary (Usufruct Over Agricultural Land) applies just as much to States (when implementing EU law) as it does to the institutions and bodies of the Union (in any circumstances).

28.      Furthermore, the Court has held ‘that a[n] [EU] legislative measure whose application leads to restrictions of the right to property … that impair the very substance of [that right] in a disproportionate and intolerable manner, perhaps precisely because no provision has been made for compensation calculated to avoid or remedy that impairment, could give rise to non-contractual liability on the part of the [European Union]’. (11)

29.      In this case, in which the ban on blank-firing weapons leads, in the absence of any possible alternative, to their being immediately impounded, the restriction has a supremely deleterious effect on the essence of the right [to property]. It has the effect of depriving an owner, without compensation, of an asset lawfully incorporated into his or her property. The provision making such deprivation possible (Directive 91/477) should have made appropriate compensation available.

30.      In short, it fell to the EU legislature to provide for compensation for the owners of weapons that had to be impounded pursuant to Article 7(4a) of Directive 91/477.

III. Conclusion

31.      In the light of the foregoing, I maintain my proposed reply to the request for a preliminary ruling from the Cour constitutionnelle (Constitutional Court, Belgium), to which I would add that it fell to the EU legislature to provide for compensation for the owners of weapons that had to be impounded pursuant to Article 7(4a) of Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons, as amended by Directive (EU) 2017/853 of the European Parliament and of the Council of 17 May 2017.

1      Original language: Spanish.

2      Council Directive of 18 June 1991 on control of the acquisition and possession of weapons (OJ 1991 L 256, p. 51).

3      EU:C:2022:929 (‘the first Opinion’).

4      That is to say, the holders of weapons in categories A.6 to A.8, on the one hand, and the holders of weapons in category A.9, on the other.

5      The Council did not give an explicit answer to that question. In its view, the diversity of national laws on the need for authorisation for blank-firing weapons justified the requirement for harmonising action which, operating over and above individual situations, provided general solutions informed by the public interest grounds on which the reform was introduced.

6      Directive 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). In so arguing, both institutions strayed from what constituted the real nub of the question.

7      The Commission appeared to take this view at the hearing when it stated that the bases of assessment under Article 17(1) and Article 20 of the Charter are different. Whereas Article 20 compares the situations of two groups in the light of criteria which create a difference in treatment, Article 17(1) takes into account the situation of an individual in relation to the public authorities. In that context, a comparison of the situations of different groups would not be decisive.

8      One of those attending the hearing questioned whether any expropriation of weapons had actually taken place. I shall not be entering into that (to some extent nominalistic) debate, since the fifth question put by the Court is premised on the assumption that an expropriation has indeed taken place and is concerned only with who is liable for compensation.

9      Judgment in Commission v Hungary (Usufruct Over Agricultural Land) (C‑235/17, EU:C:2019:432; ‘the judgment in Commission v Hungary (Usufruct Over Agricultural Land)’).

10      Judgment in Commission v Hungary (Usufruct Over Agricultural Land), paragraph 126.

11      Judgment of 9 September 2008, FIAMM and Others v Council and Commission (C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 184).

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