Opinion of the Advocate General — ECLI:EU:C:2017:665
Date: 2017-09-12
Language of the case: English
Subject matter: Accession;Free movement of goods;Approximation of laws;French overseas departments
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary — Judgment of the Court (Grand Chamber), 23 January 2018 1. Customs union — Customs territory of the European Union — Gibraltar — Excluded — Consequence — Inapplicability of the rules of the Treaty and of secondary legislation on the free movement of goods (Arts 114 TFEU and 115 TFEU; 1972 Act of Accession, Art. 29 and Annex I, Section I, point 4) 2. Approximation of laws — Acquisition and possession of weapons — Directive 91/477 — Purpose — Free movement of firearms for civilian use (Council Directive 91/477, as amended by Directive 2008/51, 2nd to 5th recitals and Arts 4(3), 11(3) and 12(2)) 3. Customs union — Customs territory of the European Union — Gibraltar — Excluded — Consequence — Inapplicability of the rules of the Treaty and of secondary legislation on the free movement of goods — Inapplicability of Directive 91/477 on control of the acquisition and possession of weapons (Art. 355(3) TFEU; 1972 Act of Accession, Art. 29 and Annex I, Section I, point 4; Council Directive 91/477, as amended by Directive 2008/51, Arts 1(4), 12(2) and Annex II) 1. As the Court has already held in paragraph 59 of the judgment of 23 September 2003, Commission v United Kingdom (C‑30/01, EU:C:2003:489), the exclusion of Gibraltar from the customs territory of the European Union, laid down in Article 29 of the 1972 Act of Accession, read in conjunction with point 4 of Section I of Annex I thereto, implies that neither the Treaty rules on the free movement of goods nor the rules of secondary EU legislation intended, as regards the free movement of goods, to ensure approximation of the laws, regulations and administrative provisions of the Member States pursuant to Articles 94 and 95 of the EC Treaty, now Articles 114 and 115 TFEU, are applicable to Gibraltar. (see para. 32) 2. See the text of the decision. (see paras 43, 52, 55, 58) 3. Article 29 of the Act concerning the Conditions of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the Adjustments to the Treaties, read in conjunction with point 4 of Section I of Annex I thereto, must be interpreted as meaning that Article 12(2) of Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons, as amended by Directive 2008/51/EC of the European Parliament and of the Council of 21 May 2008, read in conjunction with Article 1(4) thereof and Annex II thereto, does not apply on the territory of Gibraltar. In that regard, it is common ground that Article 29 of the 1972 Act of Accession is an exception to the rule, laid down in Article 355(3) TFEU, that EU law is to apply to Gibraltar, an exception which, as the Court has pointed out in paragraphs 43 and 51 of the judgment of 21 July 2005, Commission v United Kingdom (C‑349/03, EU:C:2005:488), must be interpreted restrictively, in the sense that its scope is limited to that which is strictly necessary to safeguard the interests which it allows Gibraltar to protect. Nevertheless, in the case which gave rise to that judgment the Court was not called upon to rule on the status of EU acts falling within the free movement of goods in the light of that exception, in contrast to the case which gave rise to the judgment of 23 September 2003, Commission v United Kingdom (C‑30/01, EU:C:2003:489). The Court has consistently held that ‘goods’ for the purposes of Article 28(1) TFEU means goods which can be valued in money and which are capable, as such, of forming the subject of commercial transactions. However, the provisions of the FEU Treaty on the free movement of goods apply, in principle, irrespective of whether the goods concerned are being transported across borders for the purposes of sale or resale, or rather for personal use or consumption (see, to that effect, judgments of 7 March 1989, Schumacher, 215/87, EU:C:1989:111, paragraph 22, and of 3 December 2015, Pfotenhilfe-Ungarn, C‑301/14, EU:C:2015:793, paragraph 47). Therefore, since secondary EU legislation has in principle the same field of application as the Treaties themselves (see, by analogy, judgment of 15 December 2015, Parliament and Commission v Council, C‑132/14 to C‑136/14, EU:C:2015:813, paragraph 77) and a strict interpretation of Gibraltar’s exclusion from the common customs territory of the European Union cannot, if the uniform application of EU law is not to be undermined, result in an interpretation under which the free movement of goods would have a more limited scope in relations with Gibraltar than that which results from the provisions of the FEU Treaty, the provisions of Directive 91/477 relating to the transfer of firearms for civilian use must be regarded as falling within the free movement of goods, irrespective of whether the transfers are effected in a commercial context, including through dealers or in a mail order sale, or outside such a context, that is to say, by individuals, in particular by hunters and sports target shooters in order to be used in their respective activities. (see paras 63, 64, 67, 68, 73, operative part 1)