Case C‑234/21

Défense Active des Amateurs d’Armes ASBL and Others

v

Conseil des ministres

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

Judgment of the Court (Grand Chamber) of 5 March 2024

(Reference for a preliminary ruling – Approximation of laws – Directive 91/477/EEC – Control of the acquisition and possession of weapons – Firearms prohibited or subject to authorisation – Semi-automatic firearms – Directive 91/477, as amended by Directive (EU) 2017/853 – Article 7(4a) – Power of Member States to confirm, renew or prolong authorisations – Presumed impossibility of using that power in respect of semi-automatic firearms converted to fire blanks or into salute or acoustic weapons – Validity – Article 17(1) and Articles 20 and 21 of the Charter of Fundamental Rights of the European Union – Principle of the protection of legitimate expectations)

Approximation of laws – Acquisition and possession of weapons – Directive 91/477 – Power of Member States to confirm, renew or prolong authorisations – Scope – Transitional arrangements – Semi-automatic firearms converted to fire blanks and unconverted semi-automatic firearms legally acquired and registered before the entry into force of Directive 2017/853 – Included – Validity with regard to the right to property and the principles of equality before the law, non-discrimination and the protection of legitimate expectations

(Charter of Fundamental Rights of the European Union, Arts 17(1), 20 and 21; Council Directive 91/477, as amended by Directive 2017/853, Art. 7(4a))

(see paragraphs 42-54, 57-68, operative part)

Résumé

Ruling on a request for a preliminary ruling from the Cour constitutionnelle (Constitutional Court, Belgium), the Court of Justice, sitting as the Grand Chamber, confirms the validity of Article 7(4a) of Directive 91/477 on control of the acquisition and possession of weapons, ( 1 ) as amended by Directive 2017/853, in the light of the right to property ( 2 ) and the principles of equality before the law, ( 3 ) non-discrimination ( 4 ) and the protection of legitimate expectations. According to the Court, that provision, contrary to the interpretative premiss adopted by the referring court, allows Member States to exercise the power to provide for transitional arrangements for all semi-automatic firearms lawfully acquired and registered before the entry into force of Directive 2017/853, on 13 June 2017, whether they are semi-automatic firearms capable of expelling bullets ( 5 ) or firearms that have been converted to fire blanks, irritants, other active substances or pyrotechnic rounds or into a salute or acoustic weapon (‘converted semi-automatic firearms’). ( 6 )

Défense Active des Amateurs d’Armes ASBL, NG and WL brought an action before the Cour constitutionnelle (Constitutional Court) for annulment of a provision of a Belgian law which did not provide for the possibility, as a transitional measure, of continuing to possess converted semi-automatic firearms acquired before 13 June 2017, unlike semi-automatic firearms capable of expelling bullets. ( 7 ) The Cour constitutionnelle (Constitutional Court) considered that Article 153(5) of the Law of 5 May 2019, read in conjunction with Article 163 of that law, establishes in that regard a difference in treatment between, on the one hand, persons who, before 13 June 2017, had lawfully acquired and registered a semi-automatic weapon capable of expelling bullets and, on the other hand, persons who, before that date, had lawfully acquired and registered a semi-automatic firearm converted for the sole use of firing blanks, in so far as only the former benefit from transitional arrangements allowing them to continue, subject to conditions, to possess their semi-automatic firearms, which are currently prohibited. According to the referring court, that difference in treatment arises from Article 7(4a) of Directive 91/477, since that provision did not allow a Member State to extend such transitional arrangements to the latter category of semi-automatic weapons. Accordingly, it decided to refer a question to the Court for a preliminary ruling concerning the validity of that article.

Findings of the Court

At the outset, the Court ascertains the accuracy of the premiss on which the question before it is based, according to which Article 7(4a) of Directive 91/477 allows Member States to provide for transitional arrangements only for semi-automatic firearms capable of expelling bullets, in categories A.6 to A.8., and not for converted semi-automatic firearms, in category A.9.

In that regard, in the first place, it observes that, in the light of the wording of that provision, the power afforded to Member States to confirm, renew or prolong authorisations applies only to semi-automatic firearms in categories A.6 to A.8 which were, before the entry into force of Directive 2017/853, classified in ‘Category B – Firearms subject to authorisation’ ( 8 ) and which had been lawfully acquired and registered before 13 June 2017, ( 9 ) subject to compliance with the other conditions laid down in Directive 91/477.

In the second place, as regards the context of Article 7(4a) of Directive 91/477, the Court examines, first, whether converted semi-automatic firearms in category A.9, lawfully acquired and registered before 13 June 2017, were classified in ‘Category B – Firearms subject to authorisation’. In that regard, it stresses that those weapons satisfy, despite their conversion, the criteria defining the concept of ‘firearm’, laid down by Directive 91/477. ( 10 ) In addition, as stated in recital 20 of Directive 2017/853, ( 11 ) there is a significant risk that such semi-automatic firearms converted to fire blanks can return to their previous level of danger by being reconverted to expel a shot, bullet or projectile by the action of a combustible propellant.

Thus, as regards those converted semi-automatic firearms, the Court observes that the EU legislature did not expressly exclude them from the definition of a firearm. Moreover, the clarification in Directive 2017/853, according to which it is essential to address the issue raised by such weapons by including them in the scope of Directive 91/477, ( 12 ) cannot be understood as meaning that those firearms fall within the scope of that directive only since the entry into force of Directive 2017/853. It rather intends to confirm that converted semi-automatic firearms fall within the scope of Directive 91/477, as amended by Directive 2017/853. Accordingly, semi-automatic firearms in category A.9, lawfully acquired and registered before 13 June 2017, must be regarded as having been classified in category B of Directive 91/477, applicable before the entry into force of Directive 2017/853.

Secondly, the Court confirms whether converted firearms may fall both within category A.9 and within one of categories A.6 to A.8. In that regard, according to the wording of category A.9, it includes ‘any firearm in this category’ which has been converted. Accordingly, for a firearm to fall within that category, it must not only have been converted to fire blanks, irritants, other active substances or pyrotechnic rounds or into a salute or acoustic weapon, but must also satisfy the criteria set out in point 2, 3, 6, 7 or 8 of ‘Category A – Prohibited firearms’. ( 13 ) That wording thus tends to indicate that the fact that such a conversion took place on a weapon, involving its inclusion in category A.9, does not have the effect of removing it from its classification in category A.2, A.3, A.6, A.7 or A.8. First, weapons in category A.9 satisfy the criteria defining the concept of a ‘firearm’ and, secondly, those categories A.2, A.3, A.6, A.7 and A.8 make no distinction between whether the firearms they cover have been converted or not.

As regards, in the third place, the objectives pursued by Directives 91/477 and 2017/853, the Court finds, first, that the addition of category A.9 during the legislative procedure leading to the adoption of Directive 2017/853 sought to clarify that converted firearms fell within the scope of Directive 91/477. By contrast, there is no element indicating that the EU legislature intended, by that addition, to exclude converted firearms from categories A.2, A.3, A.6, A.7 or A.8 or from the scope of Article 7(4a) of Directive 91/477.

Secondly, since Directive 2017/853 respects fundamental rights and observes the principles recognised in particular by the Charter, ( 14 ) the Court holds that Article 7(4a) of Directive 91/477 seeks to ensure respect for acquired rights and, in particular, that of the right to property. ( 15 ) In that regard, that article allows, in essence, Member States to retain authorisations already granted for semi-automatic firearms in categories A.6 to A.8, which, before the entry into force of that directive, were classified in Category B and had been lawfully acquired and registered before 13 June 2017. Accordingly, Directive 91/477 cannot be understood as requiring the expropriation of the holders of such weapons. Thus, in the light of the objective to ensure observance of the rights to personal possessions which have been acquired, Article 7(4a), while it provides for an exception to the principle of prohibition of possession of firearms classified in categories A.6 to A.8, cannot be interpreted as excluding from its scope such weapons where they also satisfy the additional criteria set out in category A.9.

Thirdly, the Court points out that the objective of Directive 91/477 is to strengthen mutual trust between the Member States in the field of safeguarding the safety of persons and ensuring public security for Union citizens. None of those objectives precludes the holders of firearms falling within both categories A.6 to A.8 and category A.9 from benefiting from the transitional arrangements provided for in Article 7(4a) of Directive 91/477.

First, such an interpretation is capable of contributing to the objective of facilitating the functioning of the internal market. Secondly, as regards the objective of ensuring the public safety and security of Union citizens, first of all, firearms satisfying the criteria in category A.9 appear to present a less immediate danger than those falling exclusively within categories A.6 to A.8. Next, it is apparent from the wording of Article 7(4a) of Directive 91/477 that the power provided for in that provision applies only to firearms which were lawfully acquired and registered before 13 June 2017. That means, inter alia, that the requirements, in particular those relating to safety, laid down in that regard by Directive 91/477, in the version applicable before the entry into force of Directive 2017/853, have been complied with. Lastly, that wording implies that, at the time when a Member State intends, pursuant to that provision, to confirm, renew or prolong an authorisation for a semi-automatic firearm classified in categories A.6 to A.8, the other conditions, in particular those relating to safety, laid down in Directive 91/477, are satisfied.

The Court concludes that the objective of ensuring the public safety and security of Union citizens cannot be compromised by the fact that the holders of firearms classified in both categories A.6 to A.8 and category A.9 may benefit from maintaining, under Article 7(4a) of Directive 91/477, authorisations already granted for weapons falling within categories A.6 to A.8.

In the fourth place, the Court considers that such an interpretation of Article 7(4a), which is consistent with its wording and its context and with the scheme and objectives of the legislation of which it forms part, likewise does not deprive that provision or the addition, by Directive 2017/853, of category A.9 of all effectiveness.

On the contrary, that interpretation ensures the effectiveness of Article 7(4a), in that it seeks to ensure respect for acquired rights and, in particular, that of the right to property. Moreover, it in no way affects the objective of clarification that the EU legislature sought to achieve by way of the addition of category A.9. In addition, that category covers not only firearms in both categories A.6 to A.8 and category A.9, but also those in categories A.2 and A.3 that have undergone such conversions, which were not covered by the power afforded to Member States by Article 7(4a) of Directive 91/477.

In the light of the interpretation thus adopted of Article 7(4a) of Directive 91/477, the Court concludes that the premiss on which the question from the Cour constitutionnelle (Constitutional Court) is based is incorrect and that, in those circumstances, the consideration of that question has not revealed any factor capable of affecting the validity of that article in the light of the right to property and the principles of equality before the law, non-discrimination and the protection of legitimate expectations.

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( 1 ) Under Article 7(4a) of Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons (OJ 1991 L 256, p. 51), as amended by Directive (EU) 2017/853 of the European Parliament and of the Council of 17 May 2017 (OJ 2017 L 137, p. 22) (‘Directive 91/477’), ‘Member States may decide to confirm, renew or prolong authorisations for semi-automatic firearms classified in point 6, 7 or 8 of category A in respect of a firearm which was classified in category B, and lawfully acquired and registered, before 13 June 2017, subject to the other conditions laid down in this Directive. Furthermore, Member States may allow such firearms to be acquired by other persons authorised by Member States in accordance with this Directive’.

( 2 ) Laid down in Article 17(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’).

( 3 ) Laid down in Article 20 of the Charter.

( 4 ) Laid down in Article 21 of the Charter.

( 5 ) Referred to in points 6 to 8 of ‘Category A – Prohibited firearms’, contained in point A of Part II of Annex I to Directive 91/477 (‘categories A.6 to A.8’).

( 6 ) Referred to in point 9 of ‘Category A – Prohibited firearms’, contained in point A of Part II of Annex I to Directive 91/477 (‘category A.9’).

( 7 ) Loi du 5 mai 2019 portant des dispositions diverses en matière pénale et en matière de cultes (Law of 5 May 2019 laying down various provisions on criminal and religious matters (Moniteur belge of 24 May 2019, p. 50023) (‘the law of 5 May 2019’). Articles 151 to 163 of that law partially transpose Directive 2017/853 into the Belgian legal order.

( 8 ) Contained in point A of Part II of Annex I to Directive 91/477, as applicable before the entry into force of Directive 2017/853.

( 9 ) Contained in point A of Part II of Annex I to Directive 91/477, as amended by Directive 2008/51, under ‘Category B – Firearms subject to authorisation’ (‘category B’).

( 10 ) See Article 1(1) of Directive 91/477, in the version prior to the entry into force of Directive 2017/853 and Article 1(1)(1) of Directive 91/477, in the version amended by Directive 2017/853.

( 11 ) See, inter alia, recital 20 of Directive 2017/853.

( 12 ) See recital 20 of Directive 2017/853.

( 13 ) Contained in point A of Part II of Annex I to Directive 91/477 (‘categories A.2, A.3, A.6, A.7 or A.8’).

( 14 ) See recital 31 of Directive 2017/853.

( 15 ) Laid down in Article 17(1) of the Charter.