Judgment;Abstract — ECLI:EU:C:2019:1035
Date: 2019-12-03
Language of the case: Czech
Court formation: Grand Chamber
Subject matter: Approximation of laws;Industrial policy
Procedure: Action for annulment - unfounded
Origin: Czechia

summary, I consider that the EU legislature has laid down in Directive 2017/853 measures which on balance promote the objectives of the internal market whilst taking account of the need to enhance provision for public safety. 76. I therefore conclude that the first plea is not well founded and should be rejected. Second plea: proportionality 77. The Czech Republic’s second plea is divided into two parts. First, it alleges that when adopting Directive 2017/853 the EU legislature totally failed to address the question of the proportionality of the measures at issue and deliberately did not obtain sufficient information (for example, by carrying out an impact assessment) in order to make an informed appraisal as to whether that principle of EU law was respected. Second, it alleges that the EU legislature proceeded to adopt manifestly disproportionate measures consisting in: (i) the prohibition placed on certain kinds of semi-automatic weapons which were not used to commit the terrorist acts in 2015; (ii) stricter regulation of certain minimally dangerous weapons (historical replicas or weapons shown to have been permanently deactivated); and (iii) restrictions placed on the possession of certain magazines. First part Arguments of the parties 78. The Czech Republic submits that the wide discretion which the EU legislature enjoys is not without limits. The EU legislature did not have the necessary information at its disposal during the legislative process to assess the proportionality of Directive 2017/853. In principle the legislature is obliged to conduct an impact assessment (or an equivalent study). The absence of such an assessment meant that there was no analysis of the interference with the right to property of those individuals owning and possessing firearms which Directive 2017/853 would cause. The various studies and reports mentioned by the Commission in its proposal did not put forward sufficient data to demonstrate a link between legal civilian possession of weapons and the abusive use of such weapons for criminal purposes or terrorism. 79. Hungary argues that the Interinstitutional Agreement is legally binding on the three EU institutions. Here, the Commission failed to meet its obligation to prepare an impact assessment in relation to its proposal for Directive 2017/853. Also, certain provisions of that directive are disproportionate. These include Article 1(3), which amends Article 4(4) of Directive 91/477 by introducing requirements to record all information relating to firearms needed in order to trace and identify those products. Following that amendment, the competent authorities are allowed to retain records of firearms and their essential components including the related personal data for 30 years. Those records can be accessed for a period of 10 years or for a period of 30 years in the case of prevention, detection or prosecution of criminal offences or the execution of criminal penalties, after the destruction of firearms and their essential components. The former Article 4(4) of Directive 91/477 did not make such provision: it merely allowed the competent authorities to record and maintain a data-filing system for 20 years. 80. Poland adds that the Interinstitutional Agreement has both binding and non-binding provisions. An impact assessment should generally be conducted subject to the derogation set out in that Agreement which applies in cases of urgency. 81. The Parliament, the Council and the Commission all maintain that the Interinstitutional Agreement does not impose a legal obligation to conduct an impact assessment during the EU legislative process. The aim of Directive 2017/853 is to strike an appropriate new balance between the free circulation of certain firearms and maintaining public safety. The criterion the Court should apply in determining whether Directive 2017/853 is compatible with the principle of proportionality is whether the restrictions it introduces are manifestly inappropriate in relation to the objective pursued. Admissibility 82. I agree with the Parliament and the Council that Hungary’s argument that Directive 2017/853 is disproportionate in so far as Article 1(3) amends Article 4 of Directive 91/477 is inadmissible. Article 129(1) of the Rules of Procedure of the Court of Justice states that an intervention is limited to supporting in whole or in part the form of order sought. Article 129(3) adds that the intervener must accept the case as he finds it at the time of his intervention. 83. Here, the Czech Republic has not included Article 1(3) of Directive 2017/853 within the scope of the order sought. (73) I therefore conclude that Hungary’s submissions regarding Article 1(3) of Directive 2017/853 and the principle of proportionality are inadmissible and I shall not consider them further. Substance 84. It is settled case-law that the principle of proportionality (one of the general principles of EU law) requires that measures implemented through EU legislation should be appropriate for attaining the legitimate objectives pursued and must not go beyond what is necessary to achieve them. The Court has accepted, in exercising the powers of judicial review conferred on it under the Treaties, that the EU legislature must be allowed a broad discretion in areas in which its action involves a complex evaluation of political, economic and social choices. (74) Thus, the criterion to be applied is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objectives which the competent institution(s) seek to pursue. (75) 85. However, even though the EU legislature has a broad discretion, it must base its choice on objective criteria. Furthermore, in assessing the burdens associated with various possible measures, it must examine whether the objectives pursued by the measure chosen are such as to justify even negative personal, social or economic consequences for certain individuals as a result of the adopted measures. (76) 86. It follows from the views that I have expressed in relation to the first plea that I consider that Directive 2017/853 pursues legitimate objectives. (77) Thus, the real issue in relation to proportionality is whether the measures adopted are appropriate and necessary with a view to attaining the functioning of the internal market whilst at the same time seeking to achieve an avowed objective of general interest (here, the fight against terrorism in order to maintain peace and security). 87. Firearms are intrinsically dangerous. The EU legislature accordingly decided to regulate the entire lifecycle of a weapon, from production to trade, ownership and possession, deactivation and destruction. (78) 88. The Czech Republic is right to assert that, even though judicial review in this instance is of limited scope, the EU institutions must be able to show that in adopting Directive 2017/853 they actually exercised their discretion. That in turn requires that they should have taken into consideration all the relevant factors and circumstances surrounding the situation that the new legislative measure was intended to regulate. It follows that the institutions must, as a minimum, be able to produce and set out clearly and unequivocally the essential facts which required to be taken into account as the basis for Directive 2017/853. 89. In carrying out its review it is not necessary, in my view, for the Court to carry out its own assessment as to whether certain firearms for which Directive 2017/853 tightens controls were actually used in the 2015 terrorist attacks; or whether such weapons are precisely as dangerous as the three institutions claim. Rather, the yardstick for the assessment is the stated aims of Directive 2017/853, the act whose validity is impugned (rather than Directive 91/477). 90. A novel feature of the present case is that in adopting Directive 2017/853, the EU legislature dispensed with an impact assessment. Normally, the EU institutions would be able to rely on such an assessment to demonstrate that the measures adopted are both suitable and necessary. By definition, they cannot do so here. 91. Does it automatically follow that the measures introduced by Directive 2017/853 should be annulled because the three institutions did not carry out an impact assessment pursuant to the Interinstitutional Agreement? 92. I do not think so. 93. The Interinstitutional Agreement was adopted on the basis of Article 295 TFEU, which provides that the three institutions are to consult each other and by common agreement make arrangements for their cooperation. To that end they may conclude Interinstitutional Agreements which may be of a binding nature. (79) Whether the Interinstitutional Agreement at issue here is binding is to be determined by consideration of the wording and the context of that agreement. The Court has certainly held that cooperation arrangements between the Council and the Commission in the past have given rise to binding commitments. (80) It seems to me that the three institutions did intend to enter into binding commitments as between themselves in relation to the Interinstitutional Agreement on Better Law-Making. (81) However, it does not necessarily follow in my opinion that the Interinstitutional Agreement introduces a binding obligation to conduct an impact assessment in each and every case. 94. The rules concerning impact assessments are set out in Part III of the Interinstitutional Agreement (‘Tools for better law-making’). The second paragraph of point 12 states that, ‘impact assessments are a tool to help the three institutions reach well-informed decisions and not a substitute for political decisions within the democratic decision-making process. Impact assessments must not lead to undue delays in the law-making process or prejudice the co-legislatures’ capacity to propose amendments’. Point 13 states that ‘the Commission will carry out impact assessments of its legislative and non-legislative initiatives, delegated acts and implementing measures which are expected to have significant economic, environmental or social impacts. The initiatives included in the Commission Work Programme or in the joint declaration will, as a general rule, be accompanied by an impact assessment’. (It would seem to follow, a contrario, that legislative initiatives which are not ‘expected to have significant economic, environmental or social impacts’ do not need to be accompanied by an impact assessment – one can, of course, debate where exactly the boundary between the two categories would lie.) 95. Point 14 states that, ‘upon considering Commission legislative proposals, [the Parliament and the Council] will take full account of the Commission’s impact assessments. To that end, impact assessments shall be presented in such a way as to facilitate the consideration by the European Parliament and the Council of the choices made by the Commission’. The Parliament and the Council are able, where they consider it to be appropriate and necessary, to carry out impact assessments if they make substantial amendments to a Commission proposal (point 15). (82) 96. Thus, the provisions of the Interinstitutional Agreement regarding impact assessments do not speak in mandatory terms. The words ‘shall’ or ‘must’ – which would create an obligation to carry out an impact assessment in each and every case – are not used. It is of course perfectly true that impact assessments are an important and useful tool in the ‘Better Regulation’ process. They facilitate the process of well-reasoned and transparent law-making. That said, the Interinstitutional Agreement does not cast them as a prior condition to proposing or adopting legislation in all circumstances. 97. It therefore cannot be right that, absent an impact assessment, the EU legislature cannot act. Such an absolute construction of the Interinstitutional Agreement would be an unjustified fetter on the discretion conferred on the legislature under the Treaties. It would make it impossible to take legislative action even where the circumstances clearly demonstrate the need for urgent action. (83) I add, for good measure, that the Court has already ruled that an impact assessment is not binding on either the Parliament or the Council. (84) 98. It follows that I do not consider that the absence of an impact assessment automatically renders invalid EU legislation subsequently adopted. 99. Rather, pursuant to the Interinstitutional Agreement, the three institutions agree that when proposing and/or adopting EU legislation carrying out an impact assessment is an expected (or normal) step in the process. Where that step is omitted two questions arise regarding the procedural and substantive consequences, as the absence of an impact assessment makes the EU institutions’ task, in the event of a challenge, significantly harder. First, they must show that there was good reason for not following the normal rules and carrying out an impact assessment. Second, they must draw on other material in order to satisfy the judicial review scrutiny of this Court. (85) 100. As to the first condition, the second paragraph of point 12 of the Interinstitutional Agreement allows the institutions to dispense with an impact assessment in conditions of urgency. The Commission stated expressly in the explanatory memorandum to the proposal for Directive 2017/853 that, ‘due to the urgency of the proposal in the light of recent events, it is submitted without an impact assessment’. (86) On the basis of the material before the Court, I see no reason to quarrel with that statement. Accordingly, I consider the first condition to be satisfied. 101. As to the second condition, the three institutions point to various reports and studies which they claim show that Directive 2017/853 is both suitable and necessary. (87) Article 17 of Directive 91/477 had already placed an obligation on the Commission to submit reports on the application of that directive at regular intervals. (88) Certain reports cited by the institutions were prepared pursuant to those obligations. As Directive 2017/853 is an amending act it falls within the context of the ‘Better Regulation’ initiative known as ‘REFIT’ (the Commission’s Regulatory Fitness programme which examines the best way to amend EU legislation). A number of reports on the application of Directive 91/477 were thus prepared prior to the adoption of Directive 2017/853. (89) 102. The recitals to Directive 2017/853 refer to the general objective of creating a balance between freedom of movement and the need to control that freedom using security guarantees suited to what are dangerous and durable products which can be misused for criminal purposes. (90) Given those aims, it seems to me that in so far as Directive 2017/853 tightens controls on placing firearms on the market, the acquisition and possession of firearms, rules on marking and traceability, arrangements for the classification of firearms, arrangements for the deactivation of firearms and the transfer of such products between Member States, the measures adopted are suitable and do not go beyond what is necessary. The legislature has not imposed an outright ban on any category of firearms. Even the general prohibition against category A firearms (those which the legislature considers to be the most dangerous) is subject to exceptions. Moreover, the preparatory material indicates that in preparing its proposal the Commission took account of the internal market objectives as well as the security imperatives in the conception of the measures at issue. (91) 103. I therefore reject the submission that the EU legislature failed to assess whether Directive 2017/853 was proportionate in the course of the legislative process. That conclusion is not altered by the submission that Directive 2017/853 constitutes an unwarranted interference with the right to property of those individuals who own firearms. 104. First, Directive 2017/853 does not sequester all lawfully held civilian firearms. It merely tightens controls over such weapons. Thus, Directive 2017/853 does not purport to deprive individuals of their rights to property (here, firearms). I note in passing that a fundamental right to possess guns does not figure in EU law as such, nor does it form part of ‘the constitutional traditions common to the Member States’. Second, the right to property laid down in Article 17 of the Charter is a qualified right. (92) As well as protecting property rights, that article also provides that individuals may be deprived of their possessions in the public interest and in the cases and under the conditions provided for by law. In so far as Directive 2017/853 provides that firearms held in breach of certain of its provisions are to be impounded, it seems to me to meet fully those conditions. I consider the individual provisions challenged by the Czech Republic below. (93) 105. I am therefore of the view that the first part of the second plea must fail. Second part 106. In the alternative, the Czech Republic asks the Court to annul certain provisions enacted in Article 1(6), Article 1(7) and Article 1(19) of Directive 2017/853. (94) 107. The Czech Republic argues that Article 1(6) is invalid in so far as it inserts Article 5(3) and the second subparagraph of Article 6(6) into Directive 91/477. Article 5(3) lays down rules for the withdrawal of authorisation to acquire and possess category B firearms if the person concerned is in possession of a loading device apt to be fitted to centre-fire semi-automatic or repeating firearms which can hold more than 20 rounds (or, in the case of long firearms, can hold more than 10 rounds). That provision is subject to the exceptions in Article 6 and Article 7(4a) of Directive 91/477 as amended. 108. The purpose of Article 5(3) as amended is explained in recital 23 of Directive 2017/853. That recital states that ‘certain semi-automatic firearms might be very dangerous when their capacity, in terms of the number of rounds, is very high’. During the course of the first reading before the Parliament, new text was added to the Commission’s proposal stating that the authorisation to acquire and possess firearms was to be withdrawn if the conditions in Article 5 were not met (in essence the holder had to be 18 and demonstrate that he was not a danger to himself or the public). The text was changed in order to fill a gap which was identified in the Commission’s proposal during the course of negotiations in Council. (95) The wording of recital 23 was introduced following the conciliation process between the three institutions. While recital 23 undeniably points to security and safety concerns, those issues are invariably bound up with considerations relating to the functioning of the internal market, (96) such as the aim of adding precision to Directive 91/477 in order to ensure that Member States do not apply divergent rules. In the light of such factors, the introduction of stricter provisions concerning category B firearms was suitable for attaining that aim. 109. Article 6 of Directive 91/477 as amended by Article 1(6) of Directive 2017/853 allows the Member States to authorise target shooters to acquire and possess certain semi-automatic firearms. The second subparagraph of Article 6(6) provides a particular exception for Member States which have a military system based on general conscription and which have, over the last 50 years, operated a system of transfer of military firearms to ex-army personnel. In those circumstances, the Member State concerned may grant such persons – if they are also ‘target shooters’ – an authorisation to keep one firearm used during the period of military service. It is common ground that the only country that meets those criteria is Switzerland. (97) 110. That provision was inserted during the course of negotiations in the Council. It is to be read in the light of the more general exception to the prohibition in respect of category A firearms in Article 6(2) of Directive 91/477 (as amended), which allows the competent authorities to grant authorisations in specified contexts ‘where this is not contrary to public security or public order’. It was considered that specific provision should also be made for army reservists as those countries would have an existing system in place to check that persons holding category A firearms did not present a risk to public security. (98) 111. It therefore seems to me that the EU legislature took account of relevant factual, social and cultural considerations in determining whether to make specific provision for army reservists and, accordingly, that it adopted suitable measures to ensure a balance between the aims of facilitating the operation of the internal market and guaranteeing a high level of public safety. 112. Article 7 of Directive 91/477 prohibits the acquisition of category B firearms without authorisation from the competent authorities of the Member State concerned. Prior to the amendments introduced by Directive 2017/853, category B weapons included semi-automatic weapons. That directive changed the position. Semi-automatic weapons were re-categorised as prohibited firearms and now fall within category A (which also includes automatic firearms that have been converted to semi-automatic weapons). 113. During the negotiations in Council the Presidency took into account the fact that many Member States opposed the change in category for semi-automatic firearms. (99) A revised text was therefore proposed on 8 June 2016 which allowed Member States to renew an authorisation for a firearm which was formerly classified in category B and was now re-classified in category A. That text was revised further and incorporated into the text of Directive 2017/853. Thus, Article 1(7) of Directive 2017/853 as enacted amends Article 7 of Directive 91/477 by, inter alia, inserting Article 7(4a) which essentially allows Member States to confirm, renew, or prolong authorisation for semi-automatic weapons which were previously in category B and lawfully acquired and registered before 13 June 2017. 114. Against that background it seems to me that the EU legislature took appropriate account of relevant factual circumstances in so far as it introduced what is now Article 7(4a). By adopting that measure the legislature reduced the severity of the consequences of extending the prohibition of weapons for civilian use to semi-automatic firearms. It allowed lawful owners of such weapons, who in essence had acquired them before Directive 2017/853 entered into force, to keep them subject to supervision by Member States’ competent authorities. In my view, that solution not only complies with the principle of proportionality but also respects the related principle of subsidiarity. 115. The Czech Republic also seeks the annulment of Article 1(19) of Directive 2017/853 in so far as it tightens controls on certain firearms. The specific arrangements challenged are as follows: (i) certain semi-automatic firearms are brought within the category of prohibited weapons; (ii) category B now includes repeating short firearms, certain semi-automatic long and short firearms, and any category C firearms converted to fire blanks, irritants, or other active substances or pyrotechnic rounds or into a salute or acoustic weapon; (iii) deactivated firearms are now subject to declaration (category C); and (iv) deactivated firearms are no longer excluded from the definition of a firearm for the purposes of Directive 91/477. (100) 116. Concerns relating to semi-automatic weapons are set out in detail in the preparatory material. (101) The Presidency indicated that the proposal as regards semi-automatic weapons was controversial. On the one hand, such weapons could be very dangerous where their capacity (number of rounds) is high and they can easily be converted into automatic weapons. On the other hand, many Member States considered that such weapons should remain in category B. Accordingly, the Presidency invited the Member States to submit evidence on the matter which was taken into account during the legislative procedure. (102) In relation to the changes to the scope of category B, the legislature had access to a number of reports on the classification of firearms under Directive 91/477 and the risks to the smooth functioning of the internal market. 117. The insertion of deactivated firearms into point 6 of category C and the change to the definition of a firearm to include such weapons are two sides of the same coin and I shall deal with them together. The reactivation of deactivated firearms was highlighted as an issue by the Commission. (103) A particular issue arises as regards the smooth functioning of the internal market inasmuch as States party to the UN Protocol against the Illicit Manufacturing of and Trafficking of Firearms (which include the 28 EU Member States) may classify a deactivated firearm as a firearm under national law and take the necessary measures on those grounds. As a consequence, different Member States could easily introduce diverging provisions, thus compromising the objectives of the internal market. (104) Furthermore, certain specific security risks were identified: conversion of alarm weapons into fully active weapons; conversion of semi-automatic weapons into automatic weapons; reactivation of deactivated firearms; erasing of marking; and illegal use of inherited arms. All those activities are a cause of security concerns at Member State level. 118. It seems to me clear that the EU legislature did indeed take account of the relevant technical factors and circumstances when formulating the amending provisions contained in Directive 2017/853 and that none of those provisions is vitiated by a manifest error of appraisal. 119. It follows that in my view the second part of the second plea is without merit in its entirety; and that the second plea is accordingly unfounded. Third plea: legal certainty 120. The Czech Republic submits that by adopting certain provisions of Directive 2017/853 the EU legislature contravened the principle of legal certainty. In that connection, the Czech Republic identifies the following: Article 1(6) (inserting Article 5(3)); Article 1(7)(b) (inserting Article 7(4a)); and Article 1(19) (adding points 7 and 8 to category A in Annex I, Part II). (105) The Czech Republic submits that the substantive effects of the provisions at issue are such that if the Court decides to annul them, it necessarily follows that Directive 2017/853 should be annulled in its entirety. 121. In support of that claim the Czech Republic argues, first, that the provisions at issue are altogether unclear from the point of view of legal certainty. They therefore do not enable the persons concerned unambiguously to discern their rights and obligations. Second, it argues that Article 7(4a) of Directive 91/477, as inserted by Directive 2017/853 (‘the grandfathering clause’), effectively forces Member States to adopt national legislation that will have retroactive effects. That is also therefore incompatible with the principle of legitimate expectations. 122. The Parliament and the Council disagree with the Czech Republic’s interpretation of the provisions at the issue and submit that the third plea should be rejected. 123. I am of the same opinion. 124. The principle of legal certainty requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law. (106) 125. Article 5(3) of Directive 91/477 is to be read in the light of recital 23 of Directive 2017/853. That recital states in essence that certain semi-automatic firearms might be very dangerous if their capacity in terms of rounds is very high. (107) The EU legislature was concerned to ensure that firearms which are not prohibited are not converted into significantly more dangerous weapons. The aim of Article 5(3) of Directive 91/477 as amended is thus to close a potential loophole by providing that authorisation for such firearms is to be withdrawn if the person authorised to acquire or possess those weapons is able to increase the firing capacity as laid down in that provision. (108) The same concerns apply to centre-fire semi-automatic firearms and semi-automatic long firearms, as listed respectively in point 7 and point 8 of Part II of Annex I to Directive 2017/853. 126. I regard the wording of those texts taken together as sufficiently clear and precise to meet the requirements of the principle of legal certainty. 127. The Czech Republic next seeks to argue in essence that the new Article 7(4a) of Directive 91/477, as inserted by Article 1(7) of Directive 2017/853, is incompatible with the principle of legitimate expectations. Its retroactive effects prejudice the rights of individuals who lawfully acquired and possessed semi-automatic firearms for civilian use under Directive 91/477 prior to its amendment by Directive 2017/853. Those weapons are now prohibited. 128. It is well established that the principle of the protection of legitimate expectations is among the fundamental principles of the European Union and that it is a corollary of the principle of legal certainty. (109) The right to rely on that principle extends to any person with regard to whom an EU institution has given rise to justified hopes. In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such hopes. However, a person may not plead breach of that principle unless he has been given such precise assurances by the administration. (110) 129. I consider that there is no evidence of such assurances here. 130. First, no evidence has been adduced to suggest that the EU institutions issued any assurances regarding the classification of arms which might have suggested that semi-automatic firearms would not be re-categorised as prohibited weapons. Rather, the preparatory material for Directive 2017/853 points to the opposite conclusion. The categorisation of firearms is a matter that was considered for some time and in considerable detail prior to the introduction of Directive 2017/853. (111) 131. Second, Article 7(4a) should be read within the context of Article 6 of Directive 91/477 as amended. The latter provision introduces a number of exceptions to the prohibition against category A firearms. (112) Article 7(4a) provides a further possible exception. It allows Member States to confirm, renew or prolong authorisations for semi-automatic weapons which were formerly in category B (prior to amendment). Article 7(4a) therefore reduces the effects of the prohibition arising from the change in category by allowing the individuals concerned, under appropriate supervision, to continue to keep those weapons. That seems to me to be the very antithesis of introducing unlawful retroactive effects. I add that Article 7(4a) is in any event a discretionary provision. Thus, if a Member State is of the view that transposing Article 7(4a) might create particular challenges because of existing national rules, it is not obliged to allow individuals holding what have become prohibited weapons to benefit from that exception. 132. Third, the Court has ruled consistently that the principle of legitimate expectations cannot be extended to the point of generally preventing a new rule from applying to the future effects of situations which arose under earlier rules. (113) 133. I therefore consider that the third plea should be rejected as unfounded. Fourth plea: equal treatment 134. By its final plea the Czech Republic claims that Directive 2017/853 is invalid on the grounds that it breaches the principle of equal treatment. That argument is based on the fact that the second subparagraph of Article 6(6) of Directive 91/477 (as amended) makes specific provision for an exception to the prohibition against the use of category A firearms for Switzerland. 135. The Parliament and the Council argue to the contrary. 136. I agree with the Parliament and the Council. 137. The principle of equal treatment, as a general principle of EU law, requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified. (114) 138. Pursuant to Article 4(2) TEU, the EU legislature is required in its acts to respect both the equality of the Member States and their national identities. In my opinion that is precisely what the legislature sought to achieve by the ‘Swiss exception’. 139. The first subparagraph of Article 6(6) as amended by Directive 2017/853 provides the framework for a general exception, in appropriate circumstances, to the prohibition against acquisition and possession of category A firearms classified in points 6 or 7. (115) The second subparagraph of Article 6(6) simply makes specific provision for a country which has had for many years a reserve army based on conscription. It is common ground that only Switzerland fulfils that condition. The purpose of the exception is to take account of the fact that such a State is able to trace and monitor the persons (as well as the weapons) concerned for the purposes of ensuring public security and safety. 140. The position of each Member State is particular. It varies according to culture and tradition. I cannot therefore agree that the situation of all the Member States together with the four Schengen States (of which Switzerland is one) is automatically fully comparable in all respects. I therefore consider that Article 6(6) is not discriminatory. 141. I conclude that the fourth plea is unfounded and I propose that the Court should reject it. Conclusion 142. In the light of all the foregoing considerations and applying Articles 138(1) and 140(1) of the Court’s Rules of Procedure concerning the allocation of costs, I propose that the Court should: – dismiss the action of the Czech Republic; – order the Czech Republic to pay its own costs and those of the European Parliament and the Council of the European Union; – order the French, Hungarian and Polish Governments and the European Commission to bear their own costs. 1 Original language: English. 2 On 14 and 15 February 2015, three separate shootings occurred in Copenhagen, Denmark. Two victims and the perpetrator were killed, while five police officers were wounded. On 13 November 2015, 120 people died in a series of coordinated terrorist attacks carried out in Paris, France. 3 COM(2015) 750 final: Proposal for a Directive of the European Parliament and of the Council amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons of 18 November 2015 (‘COM(2015) 750’). 4 Council Directive 91/477/EEC of 18 June 1991 (OJ 1991 L 256, p. 51) as amended by Directive 2008/51/EC of the European Parliament and of the Council of 21 May 2008 (OJ 2008 L 179, p. 5). 5 In parallel and on the same date the Czech Republic lodged an application for interim measures under Article 278 TFEU seeking the suspension of the operation of Directive 2017/853. That request was rejected by order of the Vice-President of the Court of 27 February 2018, Czech Republic v Parliament and Council, C‑482/17 R, not published, EU:C:2018:119. 6 Directive on control of the acquisition and possession of weapons (OJ 2017 L 137, p. 22). 7 OJ 2010 C 83, p. 391. 8 The preamble to Directive 2008/51 also refers expressly (in recitals 2 and 3) to Directive 91/477, which was amended following the European Union’s decision to sign the Protocol against the Illicit Manufacturing of and Trafficking of Firearms, their Parts and Components and Ammunition, in accordance with Council Decision 2001/748/EC of 16 October 2001 (OJ 2001 L 280 p. 5), hereafter ‘the UN Protocol against the Illicit Manufacturing of and Trafficking of Firearms’; see Article 1 of Directive 2008/51 and footnote 2 above. 9 The first to third recitals of Directive 91/477. 10 The fifth recital of Directive 91/477. 11 Those provisions are principally: Article 4 (provisions concerning the placing of firearms on the market); Article 5 (provisions concerning the authorisation to acquire and possess firearms); Article 6 (the prohibition as regards acquisition and possession of category A firearms); Article 7 (rules governing the acquisition of category B firearms); and Article 8 (rules governing the possession of category C firearms). Category D firearms are mentioned in Article 4(5) (prior to amendment by Directive 2017/853: see point 24 below), which states that from 28 July 2010 Member States are to put into place appropriate tracing measures enabling them to link such products at any moment to the owner. 12 Article 2(1). 13 Article 2(2). 14 Recital 1. 15 Recital 2; see also footnote 2 above. 16 Recital 6. 17 Recital 9. 18 Recital 15. 19 Recital 20. 20 Recital 21. 21 Recital 23. 22 Recital 31. 23 Recital 36; see further the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis which fall within the areas referred to in Article 1 of Council Decision 1999/437/EC (OJ 1999 L 176, p. 31) read in conjunction with Article 3 of Council Decision 2008/146/EC (OJ 2008 L 53, p. 1). Liechtenstein, Iceland and Norway also participate (together with Switzerland) in the Schengen acquis pursuant to bilateral agreements with the European Union (‘the four Schengen States’). 24 I shall refer to the second subparagraph of Article 6(6) in this Opinion as the ‘Swiss derogation’. 25 See footnote 11 above. 26 See further Article 1(15) and the amended Article 13a and inserted Article 13b. 27 Commission Implementing Regulation (EU) 2015/2403 of 15 December 2015 establishing common guidelines on deactivation standards and techniques for ensuring that deactivated firearms are rendered irreversibly inoperable (OJ 2015 L 333, p. 62). 28 OJ 2016 L 123, p. 1 (‘the Interinstitutional Agreement’). 29 Recital 1. 30 Recital 3. 31 Points 1 and 2 respectively. 32 The respective roles of the three EU institutions (the Parliament, the Council and the Commission) are set out in points 13 to 17. 33 In that respect, see the Court’s line of case-law on tobacco products and the advertising of such products. In its judgment of 5 October 2000, Germany v Parliament and Council, C‑376/98, EU:C:2000:544, paragraph 82, the Court held that the internal market is 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; and that it is characterised by the abolition as between Member States of all obstacles to the free movement of those factors. 34 See footnote 2 above. 35 See further judgment of 23 January 2018, Buhagiar and Others, C‑267/16, EU:C:2018:26, paragraph 60. 36 See Article 3 of Directive 91/477 and see point 13 above. 37 See by way of analogy judgment of 10 December 2002, British American Tobacco (Investments) and Imperial Tobacco, C‑491/01, EU:C:2002:741, paragraph 66. 38 Judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraphs 57 to 60 and the case-law cited. 39 See by way of analogy judgments of 12 December 2006, Germany v Parliament and Council, C‑380/03, EU:C:2006:772, paragraphs 42 and 43, and of 4 May 2016, Poland v Parliament and Council, C‑358/14, EU:C:2016:323, paragraphs 37 and 38. 40 What was known as the ‘New Approach’ covered approximately 22 EU measures which aim to improve the internal market and strengthen the conditions for placing a wide range of products on the EU market. In essence, the European Union adopts legislation that defines essential requirements in relation to safety and other aspects of public interest which should be satisfied by products being sold within the internal market: see for example COM(2003) 240 final ‘Enhancing the Implementation of the New Approach Directives’. Those directives now fall within the scope of the ‘New Legislative Framework’ governed by, inter alia, Decision No 768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common framework for the marketing of products and repealing Council Decision 93/465/EEC (OJ 2008 L 218, p. 82). 41 Directive 2009/48/EC of the European Parliament and of the Council of 18 June 2009 on the safety of toys (OJ 2009 L 170, p. 1). 42 Directive 2014/28/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market and supervision of explosives for civil uses (OJ 2014 L 96, p. 1). 43 Regulation (EU) 2016/425 of the European Parliament and of the Council of 9 March 2016 on personal protective equipment and repealing Council Directive 89/686/EEC (OJ 2016 L 81, p. 51). 44 Judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 61. The legal principles to which that citation relates are, inter alia, proportionality, legal certainty and non-discrimination. 45 See footnote 38 above. 46 Judgment of 5 October 2000, C‑376/98, EU:C:2000:544. 47 In its judgment of 14 December 2004, Swedish Match, C‑210/03, EU:C:2004:802, the Court took a different approach. There, it rejected the argument that a ban on all tobacco for oral use which included snus (a type of tobacco placed between the lip and the gum popular in Sweden) did not contribute to the internal market. The Court ruled that national laws concerning such tobacco products were developing in different directions which created obstacles to trade. In such circumstances, it was in principle lawful to have recourse to Article 95 EC (the forerunner to Article 114 TFEU) as a legal basis (see paragraphs 37 to 42). 48 Judgment of 5 October 2000, Germany v Parliament and Council, C‑376/98, EU:C:2000:544, paragraphs 99 to 105. 49 See points 18 to 21 above. 50 Judgment of 23 January 2018, Buhagiar and Others, C‑267/16, EU:C:2018:26, paragraph 42 and the case-law cited. 51 See judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 49. 52 The Czech Republic refers to a number of documents prepared before Directive 2017/853 was adopted which mention crime prevention and security as objectives. These include the ‘Evaluation of the Firearms Directive’ prepared for the Commission by Technopolis, dated 11 December 2014, and the Commission’s proposal COM(2015) 750 final. 53 Judgment of 27 January 2000, DIR International Film and Others v Commission, C‑164/98 P, EU:C:2000:48, paragraph 26. 54 A number of reports have been prepared including COM(2013) 716 final, Communication from the Commission to the Council and the European Parliament Firearms and the internal security of the EU: protecting citizens and disrupting illegal trafficking of 21 October 2013; ‘Study to support an Impact Assessment on a possible initiative related to improving rules on deactivation, destruction and marking procedures of firearms in the EU as well as alarm weapons and replicas’ of June 2014 prepared for the European Commission; and COM(2015) 751 final, Report from the Commission to the European Parliament and the Council, ‘Evaluation of Council Directive 91/477/EC of 18 June 1991, as amended by Directive 2008/51/EC of 21 May 2008, on control of the acquisition and possession of weapons’ (‘COM(2015) 751’) of 18 November 2015. 55 See respectively Article 1(1)(6), (8), (9), (10), and (11) of Directive 2017/853. 56 Article 4(2a) of Directive 91/477, as amended by Directive 2017/853. 57 Those conditions include the following: confirmation that the person concerned has had his medical and psychological state assessed in accordance with Article 5(2) of Directive 91/477; proof of participation in shooting competitions recognised by an officially recognised sports organisation; and confirmation that he is a member of a sporting club, has regularly practised target shooting for at least 12 months and that the firearm in question fulfils the necessary specifications. 58 See point 22 above. 59 Other provisions of Directive 2017/853 make formal changes. Thus, for example, the Commission is empowered to adopt delegated legislation (Article 1(14)) and the word ‘Community’ is replaced by the word ‘Union’ (Article 1(17)). 60 See point 24 above. 61 Judgment of 8 April 2014, Digital Rights Ireland and Others, C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 42 and the case-law cited. 62 Judgment of 23 January 2018, Buhagiar and Others, C‑267/16, EU:C:2018:26, paragraph 54. 63 See points 60 and 61 above. 64 See the White Paper on the completion of the internal market of 14 June 1985 COM(85) 310, paragraph 10 et seq. 65 COM(2015) 185 final, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, The European Agenda on Security’ of 28 April 2015. 66 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ 2016 L 77, p. 1) allows Member States to temporarily reintroduce border control at internal borders in the event that a serious threat to public policy or internal security has been established. Whilst it is not cited in the preamble to Directive 2017/853, it is also possible that the EU legislature was aware that certain Member States (France and Malta) had reintroduced border controls in 2015, on the grounds that there was a threat to internal security posed by the risk of further terrorist attacks in the case of France or the threat of such acts in relation to Malta (see ‘Member States’ notifications of the temporary reintroduction of border control at internal borders pursuant to Article 25 et seq. of the Schengen Borders Code’, points 54 and 48). 67 See point 11 above and the fifth recital to Directive 91/477 and Article 1(14) of Directive 2017/853. 68 See the White Paper on the completion of the internal market of 14 June 1985 COM(85) 310, paragraphs 57 to 59. 69 See Article 1(6) of Directive 2017/853 which inserts a new provision, Article 5b, into Directive 91/477. 70 See point 62 above. 71 See the Joint Practical Guide of the European Parliament, the Council and the Commission for persons involved in the drafting of legislation within the Community institutions, in particular paragraph 18.12. 72 See judgment of 10 February 2009, Ireland v Parliament and Council, C‑301/06, EU:C:2009:68, paragraphs 65 to 72. 73 See point 26 above. 74 Judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraphs 51 and 52 and the case-law cited. 75 Judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 150. 76 Judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 53 and the case-law cited. 77 See points 75 and 76 above. 78 COM(2015) 750, p. 2. 79 See for example, the Interinstitutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management (OJ 2013 C 373, p. 1). 80 See by way of analogy judgment of 19 March 1996, Commission v Council, C‑25/94, EU:C:1996:114, paragraph 49. In relation to those cases where arrangements for interinstitutional cooperation may not be binding see my Opinion in Joined Cases VG Wort, C‑457/11 to C‑460/11, EU:C:2013:34, point 32, concerning the Interinstitutional Agreement on common guidelines for the quality of drafting of Community legislation (of 22 December 1998 (OJ 1999 C 73, p. 1)). 81 See recitals 1 and 2 and points 1 and 2, set out in point 25 above. 82 The text of the Interinstitutional Agreement of 2016 replaced the previous 2003 agreement and the Interinstitutional accord on impact assessment of 2005. The text of the latter was likewise not expressed in mandatory terms. 83 See by analogy, Opinion of Advocate General Kokott in Pillbox 38, C‑477/14, EU:C:2015:854, point 72. 84 Judgment of 21 June 2018, Poland v Parliament and Council, C‑5/16, EU:C:2018:483, paragraph 159. 85 In the absence of an impact assessment the institutions are obviously unable to refer to such a document as providing the Court with the basis for evaluation of a contested act as foreseen in point 18 of the Interinstitutional Agreement. 86 COM(2015) 750, p. 7. The significance of the impact assessment is specifically mentioned in the European Parliament’s report on the Commission’s proposal: the rapporteur there expresses regret at the lack of an impact assessment and states (I respectfully add, entirely reasonably) that if such an assessment had been available, it would have made the Parliament’s task easier. 87 See for example COM(2015) 750, p. 5. 88 See point 16 above. 89 See for example COM(2015) 751 and the report prepared for the European Commission by Technopolis: ‘Evaluation of the Firearms Directive’ of 11 December 2014 mentioned in footnote 52 above. 90 See recitals 1, 2 and 9. 91 See COM(2015) 751, in particular points 20, 27 and 34. 92 Judgment of 13 June 2017, Florescu and Others, C‑258/14, EU:C:2017:448, paragraphs 49 to 51 and the case-law cited. The right to property in Article 17 of the Charter corresponds to the right protected by Article 1 of Protocol No 1 to the European Convention of Human Rights. 93 See point 106 et seq. below. 94 See points 18, 19, 20 and 23 above. 95 See Interinstitutional file 2015/0269 (COD) of 8 June 2016 9841/16. 96 See COM(751) 2015, pp. 11 and 13. 97 See point 17 and footnote 23 above. 98 See Interinstitutional file 2015/0269 (COD) of 8 June 2016 9841/16. 99 See Interinstitutional file 2015/0269 (COD) of 8 June 2016 9841/16. 100 See point 24 above. 101 See COM(2015) 751, p. 13. 102 See Interinstitutional file 2015/0269 (COD) of 8 June 2016 9841/16, see further COM(2012) 415, Report from the Commission to the European Parliament and the Council ‘Possible advantages and disadvantages of reducing the classification to two categories of firearms (prohibited or authorised) with a view to improving the functioning of the internal market for the products in question through simplification’ of 26 July 2012 (‘COM(2012) 415’). 103 See COM(2015) 751 at point 22, see further the observations of the rapporteur in the European Parliament’s report A8-0251/2016 of 2 August 2016 at p. 65. 104 See COM(2015) 751 at points 28 and 30. 105 I shall refer to those articles of Directive 2017/853 as ‘the provisions at issue’, see points 19, 20 and 24. 106 Judgment of 5 May 2015, Spain v Council, C‑147/13, EU:C:2015:299, paragraph 79. 107 See point 17 above. 108 Article 5(3) applies unless the person concerned has been granted an authoristaion under Article 6 or an authorisation which has been confirmed, renewed or extended under Article 7(4a) of Directive 91/477 as amended by Directive 2017/853. 109 Judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 23 and the case-law cited. 110 Judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraphs 24 and 25 and the case-law cited. 111 See COM(2012) 415. 112 See point 20 above, in particular as regards the exceptions in Article 6(2) to (6). 113 Judgments of 18 April 2002, Duchon, C‑290/00, EU:C:2002:234, paragraph 21, and of 11 December 2008, Commission v Freistaat Sachsen, C‑334/07 P, EU:C:2008:709, paragraph 43 and the case-law cited. 114 Judgment of 16 December 2008, Arcelor Atlantique et Lorraine and Others, C‑127/07, EU:C:2008:728, paragraph 23. 115 See point 24 above.