Opinion of the Advocate General — ECLI:EU:C:2022:538
Date: 2022-07-07
Language of the case: Finnish
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Finland

summary, in the receiving State, checks carried out by the authorities of that State to ensure that the certificate verifying the deactivation of a weapon satisfies the applicable procedural and substantive requirements, negate the risk and enable the protection of public safety: weapons, such as deactivated weapons, will not be brought into its territory until such time as it is confirmed that they are genuinely deactivated. V. Conclusion 91. In the light of the foregoing considerations, I propose that the Court of Justice should reply to the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) as follows: (1) Article 3 of Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons and Article 3 of 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 are to be interpreted as meaning that: – they do not preclude a Member State from designating a company governed by private law, under the supervision and direction of a public authority, to verify that the deactivation of a firearm has been carried out in accordance with the technical specifications laid down in Annex I to Implementing Regulation 2015/2403; – inclusion in the list of verifying entities designated by the Member States, which is published on the Commission’s website, is not a substantive requirement for establishing such designation, which may be proved by any method permitted in law. (2) Article 7(2) of Implementing Regulation 2015/2403 must be interpreted as meaning that the authorities of a Member State to which an attempt is made to transfer deactivated weapons may check, where they have serious grounds for doing so, that deactivation certificates issued by the verifying entities of another Member State satisfy the formal and substantive requirements laid down in that regulation. 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). It was repealed by Directive (EU) 2021/555 of the European Parliament and of the Council of 24 March 2021 on control of the acquisition and possession of weapons (OJ 2021 L 115, p. 1). 3 Directive of the European Parliament and of the Council of 21 May 2008 amending Directive 91/477 (OJ 2008 L 179, p. 5). In this Opinion, citations of Directive 91/477 will, unless otherwise stated, refer to the version as amended by Directive 2008/51. 4 Commission Implementing Regulation 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). 5 Law on firearms No 1/1998 (‘the Law on firearms’). 6 At the request of the police, A presented them again on 23 November 2017. 7 The deactivation operations were found to have the following defects: (1) disassembly of the firearms and closing system had not been prevented; (2) the trigger mechanism had not been welded to the frame and, although the hammer had been welded to the sear, it allowed the trigger to move and parts of the trigger mechanism could be removed from the firearms; (3) only five holes spanning the whole diameter of the bore had been drilled into the barrel of the weapons instead of the six holes required by Implementing Regulation 2015/2403; (4) welding was done by MIG welding with normal steel and not by TIG welding with stainless steel type ER 316 L as required by the Implementing Regulation. 8 Documents 3 and 4 of the annex submitted with A’s written observations. 9 In support of the forms of order sought, A submitted an email from the Austrian Interior Ministry dated 11 March 2020, according to which, under national law, the Ministry of Defence (for weapons considered to be military) and the Interior Ministry (for weapons intended for civilian use) authorised certain professional operators to verify the deactivation of firearms. 10 The requirement to fulfil those obligations complied with an international commitment entered into by the European Union as a party to the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime, concluded by Council Decision 2014/164/EU (OJ 2014 L 89, p. 7). 11 Directive of the European Parliament and of the Council of 17 May 2017 amending Directive 91/477 (OJ 2017 L 137, p. 22). 12 ‘The stakeholders consulted by the Commission believed that the reactivation of deactivated weapons was a relevant source of weapons for criminal use and considered the harmonisation of deactivation rules to be a priority in order to fight this practice’ (paragraph 2.7 of the Opinion of the European Economic and Social Committee on the ‘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’; COM(2015) 750 final – 2015/0269 (COD)). 13 The referring court states (paragraph 23 of its order) that, at the time when the request for a preliminary ruling was drawn up, the list was not available on the Commission’s website. The Commission’s Directorate-General for Migration and Home Affairs (DG HOME) informed the referring court, via the Europe Direct Contact Centre, that the list was being revised and that the updated version would be available by the end of 2021. 14 On the classic distinction between acts carried out iure gestionis and iure imperii, see the judgment of 7 May 2020, Rina (C‑641/18, EU:C:2020:349), in connection with Article 1(1) of the Brussels I Regulation (Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1)). 15 Commission Implementing Regulation of 5 March 2018 amending Implementing Regulation (EU) 2015/2403 establishing common guidelines on deactivation standards and techniques for ensuring that deactivated firearms are rendered irreversibly inoperable (OJ 2018 L 65, p. 1). It aims to ensure that ‘the rules on deactivation of firearms laid down in Implementing Regulation (EU) 2015/2403 should reflect and be consistent with the new rules on deactivation introduced by Directive (EU) 2017/853’ (recital 5). It was pointed out at the hearing that a number of the language versions of Implementing Regulation 2018/337 did not add the adjective ‘public’ to the noun ‘authority’ when amending Article 3(1). 16 The different language versions use both the noun ‘body’ (‘organisme’ in the French, ‘organismo’ in the Italian) and the noun ‘entity’ (‘entidad’ in the Spanish; ‘entity’ in the English; ‘entidade’ in the Portuguese; ‘entitatea’ in the Romanian; ‘entiteit’ in the Dutch). The German version uses the word ‘Behörde’. 17 In a general sphere like that of the legal rules applicable to provisions of a directive which have direct effect, the Court of Justice accepted that those provisions may be relied on against ‘a body or an organisation, even one governed by private law, to which a Member State has delegated the performance of a task in the public interest and which possesses for that purpose special powers beyond those which result from the normal rules applicable to relations between individuals’ (judgment of 10 October 2017, Farrell, C‑413/15, EU:C:2017:745, paragraph 35). 18 Delegation does not automatically mean that the activities concerned are carried out in the ‘exercise of official authority’. The case-law of the Court on that point states that an auxiliary and preparatory role cannot be regarded as direct and specific participation in the exercise of official authority within the meaning of Article 51(1) TFEU, and that the scope of that provision must be limited to what is strictly necessary. From a different perspective, the judgment of 7 May 2020, Rina (C‑641/18, EU:C:2020:349, paragraph 39), states that ‘the mere fact that certain powers are delegated by an act of a public authority does not imply that those powers are exercised iure imperii’. 19 EU law expressly permits the presence of private entities to carry out public tasks in some sectors. See, for example, Article 4(2) of Directive 2014/45/EU of the European Parliament and of the Council of 3 April 2014 on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC (OJ 2014 L 127, p. 51): ‘Roadworthiness tests shall be carried out by the Member State of registration of the vehicle, by a public body entrusted with the task by that Member State or by bodies or establishments designated and supervised by that Member State, including authorised private bodies.’ Italics added. 20 According to the Austrian Government (paragraph 17 of its reply), the delegated professional operator acts functionally as an organ of the delegating public authority. The latter is responsible for the execution of tasks carried out in the public interest by the professional operator. In accordance with Austrian constitutional case-law, the delegation must be subject to strict conditions and there must be a guarantee that an administrative body (in this case, the Defence Ministry and Interior Ministry, which exercise authority and may give instructions to the verifying entities) has the power of instruction and the power of supervision or control. 21 According to the information provided by the Commission, no other Member State uses that model. 22 The Commission appears to be particularly concerned about the number of private verifying entities and about the real likelihood that these come under the control of the public authorities. 23 In actual fact, inclusion in the list does not, strictly speaking, affect the compatibility of each Member State’s conduct with the provisions of Implementing Regulation 2015/2403. The reasoning I put forward in the Opinion in Poltorak (C‑452/16 PPU, EU:C:2016:782, points 64 to 66), appears to me to be applicable, by analogy, to the present dispute. That case concerned notification to the General Secretariat of the Council of which authorities were competent under the national law of a Member State to issue or execute European arrest warrants. 24 Paragraph 26 of the Commission’s written observations, confirmed at the hearing. 25 At the hearing, all the participants agreed that that article provides for a system of mutual recognition of certificates, based on mutual trust between the Member States. 26 As I have already observed (footnote 13), the national court points out that the Helsinki Police found that there were significant defects in the deactivation of the firearms. 27 Recital 1 of Directive 2008/51. Italics added. 28 Judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035, paragraph 47). 29 In the Opinion in Fédération des entreprises de la beauté (C‑4/21, EU:C:2022:221), I dealt with the application of safeguard clauses in relation to Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products (OJ 2009 L 342, p. 59), the aim of which is to harmonise in full the EU provisions in that sector. Although, under that regulation, Member States must not refuse, prohibit or restrict the making available on the market of cosmetic products which comply with the requirements of the regulation, they may apply those clauses on a provisional basis where they respect the unity of the internal market in those products, while leaving the final decision to the Commission. 30 The sixth recital of Directive 91/477 declared that ‘passing from one Member State to another while in possession of a weapon should, in principle, be prohibited’. 31 If the Member State where the weapon is situated before dispatch authorises the transfer, it will issue a licence setting out all the particulars listed in the first subparagraph of Article 11(2). That licence must accompany the firearm until it reaches its destination and it must be produced whenever so required by the authorities of the Member States. 32 A fortiori, the receiving authorities may check whether deactivated weapons comply with any ‘additional measures’ which go further than the technical specifications laid down in Annex I to Implementing Regulation 2015/2403, and to which Article 6 of the regulation refers. It was made clear at the hearing that neither the Republic of Austria nor Finland has adopted measures of that kind. 33 Naturally, the same solution may be reached where a deactivation certificate has been obtained and relied on fraudulently. As much was acknowledged in the judgments of 6 February 2018, Altun and Others (C‑359/16, EU:C:2018:63), and of 2 April 2020, CRPNPAC and Vueling Airlines (C‑370/17 and C‑37/18, EU:C:2020:260), relating to the issue of E 101 certificates for the application of social security schemes to workers moving within the European Union, provided that the procedure culminating in the action of the Administrative Commission to reconcile the points of view of the administrative authorities concerned has been followed first. Since Implementing Regulation 2015/2403 does not provide for such conciliation mechanisms in the case of weapons deactivation certificates, the assessment of possible fraud may be carried out by the authorities of the receiving State. 34 Annex I, Part III(a) of Directive 91/477.