Albert Buhagiar and Others v Minister for Justice.
Date: 2018-01-23
31


Second, whilst EU law applies, in principle, on the territory of Gibraltar pursuant to Article 355(3) TFEU, certain EU acts do not, however, apply there, under the 1972 Act of Accession, on account of the special legal position of that territory, in particular its status as a free port (see, to that effect, judgments of 21 July 2005, Commission v United Kingdom, C‑349/03, EU:C:2005:488, paragraph 41, and of 13 June 2017, The Gibraltar Betting and Gaming Association, C‑591/15, EU:C:2017:449, paragraphs 29 and 30).
33


That conclusion was not affected by the fact that the directives at issue in the case giving rise to that judgment, whose main objective was to remove barriers to trade in goods and which were based on Articles 94 and 95 of the EC Treaty, contained provisions relating to environmental protection, a field in which rules of EU law apply, in principle, on the territory of Gibraltar (see, in that regard, judgment of 23 September 2003, Commission v United Kingdom, C‑30/01, EU:C:2003:489, paragraphs 61 and 62).
34


The Court has explained in that regard that it is true that failure to apply such directives on the territory of Gibraltar is liable to endanger the coherence of other EU policies when those directives also pursue, albeit as an ancillary aim, objectives connected with those other policies, such as environmental protection policy. Nevertheless, the existence of such a risk cannot lead to the extension of the territorial scope of those directives — which pursue, as their main aim, objectives connected with the free movement of goods — beyond the limits imposed by the Treaties and by the 1972 Act of Accession (see, to that effect, judgment of 23 September 2003, Commission v United Kingdom, C‑30/01, EU:C:2003:489, paragraph 63).
41


In addition, since the referring court expresses doubts regarding the choice of the legal basis on which Directive 91/477 is founded, it should be noted that, in accordance with the Court’s settled case-law, the choice of legal basis for an EU measure must rest on objective factors that are amenable to judicial review; these include the aim and content of that measure. If examination of the measure concerned reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component (judgment of 6 May 2014, Commission v Parliament and Council, C‑43/12, EU:C:2014:298, paragraphs 29 and 30 and the case-law cited).
43


As regards the aim of Directive 91/477, it is apparent from its second to fourth recitals that it was adopted in order to establish the internal market and that, in that context, the abolition of controls on the safety of objects transported and of those on persons entailed, among other things, the approximation of legislation by means of effective rules on firearms designed to establish controls, within Member States, on their acquisition, possession and transfer (see, to that effect, judgment of 4 September 2014, Zeman, C‑543/12, EU:C:2014:2143, paragraphs 42 and 43). Such partially harmonised rules would, according to the directive’s fifth recital, generate greater mutual confidence between Member States in the field of the protection of the safety of persons.
49


It is apparent from those elements of Directive 91/477 that, as recital 1 of Directive 2008/51 confirms, it was adopted as an ‘accompanying measure for the internal market’ which, whilst ensuring a high level of safety for European citizens, contributes to the creation of conditions enabling controls at the borders between Member States to be abolished by establishing a minimum harmonised framework relating to the acquisition and possession of firearms for civilian use and their transfer between Member States.
50


It is clear in particular from its content that Directive 91/477, first, is designed to approximate the provisions of the Member States so far as concerns the conditions on which various categories of firearms may be acquired and held, whilst laying down, on the basis of requirements of public safety, that the acquisition of certain types of firearm must be prohibited.
51


Second, Directive 91/477 contains rules intended to harmonise the Member States’ administrative measures relating to the movement of firearms for civil use, the basic principle being — again in order to ensure a high level of public safety — that the movement of weapons is prohibited, unless the procedures laid down by the directive for that purpose are followed.
52


It follows from the foregoing that Directive 91/477 is a measure intended to ensure, as regards the free movement of goods, namely of firearms for civilian use, approximation of the laws, regulations and administrative provisions of the Member States, whilst circumscribing that freedom with safety guarantees suited to the nature of those goods.
57


In that respect, the Court has explained that the pass has the purpose of facilitating the free movement of hunters and sports target shooters in possession of their weapons from one Member State to another, while pointing out that Article 1(4) of Directive 91/477, read in conjunction with Article 12(2) thereof, is intended mainly to facilitate the movement of weapons used for hunting or sporting purposes (see, to that effect, judgment of 4 September 2014, Zeman, C‑543/12, EU:C:2014:2143, paragraphs 39, 52 and 57).
66


In that respect, it is to be noted that, under Article 28(1) TFEU, which is in Title II, relating to the free movement of goods, of Part Three of the FEU Treaty, the customs union is to cover all trade in goods. That union necessarily implies that the free movement of goods should be ensured between Member States and, in more general terms, within that union (judgment of 23 September 2003, Commission v United Kingdom, C‑30/01, EU:C:2003:489, paragraph 53).
67


The Court has consistently held that ‘goods’ for the purposes of that provision 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).
68


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.