delivered on 24 November 2022 (1)

Case C‑234/21

Défense Active des Amateurs d’Armes ASBL,

NG,

WL

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

(Reference for a preliminary ruling – Approximation of laws – Control of the acquisition and possession of firearms – Prohibited firearms – Directive 91/477/EEC – Article 7(4a) – Transitional arrangements for certain semi-automatic firearms – States not empowered to make transitional arrangements for firearms – Article 1(1), point 1 – Concept of ‘firearm’ – Need for authorisation to possess firearms – Validity – Equality before the law – Right to own property)

In the context of an action brought against the reform of the Law on Weapons, (2) the Cour constitutionnelle (Constitutional Court, Belgium) has doubts about the validity of Article 7(4a) of Directive 91/477/EEC, (3) introduced by Directive (EU) 2017/853, (4) which the aforementioned reform incorporated into the Belgian legal system.

Under that legislative reform, certain types of semi-automatic weapons the acquisition and possession of which had hitherto been authorised were prohibited in Belgium in 2019. Conversely, those same weapons, if they had been lawfully acquired and registered before 13 June 2017, continued to be permitted, on a transitional basis and subject to certain conditions, pursuant to the option made available to Member States by the new Article 7(4a) of Directive 91/477.

The transitional arrangements provided for in that article do not, however, apply to holders of semi-automatic weapons converted so as to be capable of firing blanks, irritants, other active substances or pyrotechnic rounds, or firing salutes or acoustic signals.

The Cour constitutionnelle (Constitutional Court) asks the Court of Justice to rule on the validity of Article 7(4a) of Directive 91/477. It considers that that article might come into conflict with the rights to equality before the law, non-discrimination and property provided for in Articles 20, 21 and 17 respectively of the Charter of Fundamental Rights of the European Union (‘the Charter’), and with the principle of the protection of legitimate expectations.

Article 1 contains the following definitions:

‘1. For the purposes of this Directive, the following definitions apply:

(1) “firearm” means any portable barrelled weapon that expels, is designed to expel or may be converted to expel a shot, bullet or projectile by the action of a combustible propellant, unless it is excluded from that definition for one of the reasons listed in Part III of Annex I. Firearms are classified in Part II of Annex I.

An object shall be considered to be capable of being converted to expel a shot, bullet or projectile by the action of a combustible propellant if:

(a) it has the appearance of a firearm; and

(b) as a result of its construction or the material from which it is made, it can be so converted;

(2) “essential component” means the barrel, the frame, the receiver, including both upper and lower receivers, where applicable, the slide, the cylinder, the bolt or the breech block, which, being separate objects, are included in the category of the firearms on which they are or are intended to be mounted;

…

(4) “alarm and signal weapons” means devices with a cartridge holder which are designed to fire only blanks, irritants, other active substances or pyrotechnic signalling rounds and which are not capable of being converted to expel a shot, bullet or projectile by the action of a combustible propellant;

(5) “salute and acoustic weapons” means firearms specifically converted for the sole use of firing blanks, for use such as in theatre performances, photographic sessions, film and television recordings, historical re-enactments, parades, sporting events and training;

(6) “deactivated firearms” means firearms that have been rendered permanently unfit for use by deactivation, ensuring that all essential components of the firearm in question have been rendered permanently inoperable and incapable of removal, replacement or modification in a manner that would permit the firearm to be reactivated in any way;

…’

Article 3 provides:

‘Member States may adopt in their legislation provisions which are more stringent than those provided for in this Directive …’.

Article 6 states:

‘1. Without prejudice to Article 2(2), Member States shall take all appropriate measures to prohibit the acquisition and possession of the firearms, the essential components and the ammunition classified in category A. They shall ensure that those firearms, essential components and ammunition unlawfully held in contravention of that prohibition are impounded.

…

6. Member States may authorise target shooters to acquire and possess semi-automatic firearms classified in point 6 or 7 of category A, subject to the following conditions:

…’

Article 7(4a) reads:

‘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 ….

…’

Part II of Annex I reads:

‘II. For the purposes of this Directive, firearms are classified in the following categories:

Category A – Prohibited firearms

6. Automatic firearms which have been converted into semi-automatic firearms, without prejudice to Article 7(4a).

(a) short firearms which allow the firing of more than 21 rounds without reloading, if:

(i) a loading device with a capacity exceeding 20 rounds is part of that firearm; or

(ii) a detachable loading device with a capacity exceeding 20 rounds is inserted into it;

(b) long firearms which allow the firing of more than 11 rounds without reloading, if:

(i) a loading device with a capacity exceeding 10 rounds is part of that firearm; or

(ii) a detachable loading device with a capacity exceeding 10 rounds is inserted into it.

…’

Article 3(1) states:

‘The following shall be deemed to be prohibited weapons:

…

19° automatic firearms which have been converted into semi-automatic firearms;

20° semi-automatic long firearms that can be reduced to a length of less than 60 cm without losing functionality by means of a folding or telescoping stock or by a stock that can be removed without using tools’.

Article 3(4) provides:

‘Firearms that have been converted to firing blanks, irritants, other active substances or pyrotechnic rounds, or that have been converted into a salute or acoustic weapon, and firearms that have not been converted for that purpose and are used solely for firing the abovementioned rounds or substances shall remain in the category in which they have been placed on the basis of paragraphs 1 and 3’.

Under Article 45/2:

‘Persons who have lawfully acquired and registered, before 13 June 2017, a weapon referred to in Article 3(1), points 19 and 20, either with authorisation or by registration on the basis of a hunting licence, a private security guard certificate or a target shooter’s licence, or by registration in the register of an authorised person, may continue to possess that weapon, provided that the other legal conditions concerning the possession of weapons are fulfilled. That weapon may be sold only to target shooters as referred to in the fourth subparagraph of Article 27(3) and to dealers, collectors or museums authorised for that purpose. The firearm may also be deactivated in accordance with Article 3(2), point 3, or may be handed over.’

II. Facts, dispute and question referred for a preliminary ruling

On 22 November 2019, the association Défense Active des Amateurs d’Armes ASBL and two private individuals brought before the Cour constitutionnelle (Constitutional Court) an action for the annulment of several articles of the Law of 5 May 2019 (6) amending the Law on Weapons, which transposed Directive 2017/853 into Belgian law.

According to the referring court, semi-automatic weapons converted to firing blanks used to be sold freely in Belgium. Upon the entry into force of Article 153(5) and Article 163 of the Law of 5 May 2019, (7) persons who had acquired such weapons became the owners either of a prohibited weapon or of a weapon which, in the absence of the required authorisation, could not be regularised, since authorisation had in principle to be obtained prior to acquisition of the weapon.

By contrast, holders of original (unconverted) semi-automatic firearms who had lawfully acquired and registered them before 13 June 2017 benefit from transitional arrangements allowing them to keep those firearms. (8)

The Cour constitutionnelle (Constitutional Court) explains that, for reasons relating to the protection of public security, Directive 2017/853 amended Directive 91/477 and included semi-automatic weapons in the list of prohibited firearms (points 6 to 8 of category A). For similar reasons, weapons converted to firing blanks were added to that same list in point 9 of category A. (9)

That amendment:

– empowered Member States to establish transitional arrangements for which only holders of semi-automatic weapons classified in points 6 to 8 of category A qualify, provided that they had lawfully acquired and registered those weapons before 13 June 2017;

–did not allow Member States to introduce those transitional arrangements for persons who had acquired the same weapons but as conversions for use with blanks.

18.Consequently, holders of weapons, whether semi-automatic (points 6 to 8 of category A) or converted for use with blanks (point 9 of category A), acquired after 13 June 2017 receive the same unfavourable treatment, in that they do not qualify for any transitional arrangements. (10)

19.Conversely, there is an inequality of treatment between holders of semi-automatic weapons under points 6 to 8 of category A, on the one hand, and holders of weapons under point 9 of category A, on the other hand, where both groups had acquired them before 13 June 2017. The former qualify for the transitional arrangements but the latter do not.

20.In the view of the referring court, the judgment in Czech Republic v Parliament and Council does not make it possible to determine whether that difference in treatment is consistent with the principles of equality, non-discrimination, the protection of legitimate expectations and the right to own property. (11)

21.In those circumstances, the Cour constitutionnelle (Constitutional Court) referred the following question to the Court of Justice for a preliminary ruling:

‘Does Article 7(4a) of [Directive 91/477], read in conjunction with points 6 to 9 of category A of Part II of Annex 1 to that directive, infringe [Article 17(1), Article 20 and Article 21] of the Charter … and the principle of the protection of legitimate expectations in that it does not allow Member States to provide for transitional arrangements for firearms covered by category A.9 which were lawfully acquired and registered before 13 June 2017, whereas it allows them to provide for transitional arrangements for firearms covered by categories A.6 to A.8 which were lawfully acquired and registered before 13 June 2017?’

III.

Procedure before the Court

22.The request for a preliminary ruling was registered at the Court on 12 April 2021.

23.Written observations have been lodged by the applicant association, NG and WL, the Belgian Government, the Council, the Parliament and the European Commission. Those three institutions and the Belgian Government took part in the hearing held on 19 September 2022.

Assessment

Preliminary observations

Definition of the dispute

24.In its original version, Directive 91/477 distinguished between several categories of firearm: A (‘prohibited firearms’); B (‘firearms subject to authorisation’); C (‘firearms subject to declaration’); and D (‘other firearms’). (12)

25.Directive 2017/853 reformed the classification by prohibiting certain semi-automatic weapons which had previously been included more generically under points 1 and 4 of category B (depending on whether the weapons were short or long) as weapons subject to authorisation.

26.Thus, as a result of that reform, a number of semi-automatic firearms previously classified in category B (subject to authorisation) were placed in category A (prohibited weapons).

In particular, in Part II of Annex I [to Directive 91/477], category A henceforth included, inter alia, three subcategories: (13)

–automatic firearms which have been converted into semi-automatic firearms (point 6);

–short and long centre-fire semi-automatic firearms with a firing and loading capacity above a certain figure (point 7);

–semi-automatic long firearms with a folding stock (point 8).

28.The reform also created, in category A (point 9) a subcategory covering ‘any firearm [included in category A] that has been converted to firing blanks …’.

29.The EU legislature took into account the fact that the transfer of those weapons from category B to category A meant that a high number of owners of lawfully acquired semi-automatic weapons would be prevented from owning them (part of the prohibition of their acquisition and possession was to impound them). (14)

30.For that reason, it made it possible, in a new Article 7(4a) of Directive 91/477, for Member States to confirm, renew or prolong authorisations granted for semi-automatic firearms classified under points 6 to 8 of category A, corresponding to firearms which had been classified in category B and lawfully acquired and registered before 13 June 2017 (date of entry into force of Directive 2017/853).

31.However, those transitional provisions make no reference to the weapons under point 9 of category A, that is to say, weapons which have been converted to firing blanks. The silence of that provision on the latter weapons, (15) combined with the express reference to the weapons under points 6 to 8 of category A, suggests that it should be interpreted literally, which is to say that only holders of the latter (non-converted) firearms, but not holders of the former (converted) firearms, qualified for the transitional arrangements.

32.I do not think it feasible to interpret Article 7(4a) [of Directive 91/477] in such a way as to extend its scope to include not only the unconverted semi-automatic firearms classified under points 6 to 8 of category A, but also semi-automatic firearms converted to firing blanks, which are now listed under point 9 of category A following the reform implemented by Directive 2017/853. (16)

33.That interpretation would conflict with the wording of Article 7(4a) of Directive 91/477, which, as I have said, does not refer to the firearms under point 9 of category A, which are adaptations (for firing blanks) of those listed under points 6 to 8 of category A.

34.I appreciate that, for the Court, it would be more convenient to adopt a consistent interpretation of Article 7(4a) of Directive 91/477 (17) which avoided the consequences that would flow from any declaration as to its invalidity. That approach would simply require a finding to the effect that the transitional arrangements also extend to the semi-automatic firearms under point 9 of category A, even though that provision does not specifically include them.

35.In my view, however, it is not suitable to replace the will of the legislature, or to twist it, when it has itself opted for a transitional arrangement which expressly refers only to some categories of firearms and not to others. This is particularly the case given that, as was stated at the hearing, that measure was adopted consciously and intentionally.

36.As the Court has recalled, ‘an interpretation of a provision of EU law cannot have the result of depriving the clear and precise wording of that provision of all effectiveness. Thus, where the meaning of a provision of EU law is absolutely plain from its very wording, the Court cannot depart from that interpretation’. (18)

37.That being the case, the doubts as to the validity of Article 7(4a) of Directive 91/477 (as amended) rest on the fact that blank-firing semi-automatic weapons now come under category A, (19) and their owners do not therefore have the option of keeping them. Whether that provision infringes the rights highlighted by the referring court, as well as the principle of legitimate expectations, is a matter which the Court alone is able to determine.

Admissibility of the reference for a preliminary ruling

According to the Commission, the request for a preliminary ruling is inadmissible because it is hypothetical in nature. In its view:

–Article 7(4a) of Directive 91/477 attaches strict conditions to the transitional arrangements: possession of the firearms concerned must have been previously authorised and registered before 13 June 2017;

–since, in Belgium, semi-automatic firearms converted into blank-firing weapons were not subject to the Law on Weapons (they were sold freely) until Directive 2017/853 was transposed, they did not require prior authorisation or registration;

–in those circumstances, even if Article 7(4a) of Directive 91/477 had included the weapons listed under point 9 of category A in the transitional arrangements, Belgium could not have made available the option offered by that provision.

39.I do not concur with the Commission’s objection, since, in my opinion, the provisions concerning the (prior) authorisation and registration of the weapons at issue do not lend themselves only to the reading adopted by that institution. That reading, moreover, as the Commission itself recognises, would be contingent upon the assessment of the national court, whose reference for a preliminary ruling enjoys the presumption of relevance.

In any event, the doubts raised are not hypothetical in nature and their resolution requires an interpretation of Directive 91/477:

–first, it cannot be ruled out that, even though prior authorisation and registration of this type of weapon did not exist in Belgium, it may be necessary to assess to what extent those two steps were essential to the configuration of the transitional arrangements;

–second, one point which the Court will have to clarify when examining the validity of Article 7(4a) of Directive 91/477 is whether, under the version of that directive which was in force prior to the 2017 reform, blank-firing weapons which would later come under points 6 to 8 of category A were subject to both authorisation and registration irrespective of what the national rules applicable required.

maintain that such weapons were sold over the counter and did not therefore require authorisation or registration;

the Commission and the Parliament argue that such weapons were included in the concept of ‘firearm’ and were, in consequence, subject to the rules applicable to weapons of this kind. (24)

The latter point of view has more validity, in my opinion, since it is consistent with the concept of ‘firearm’ within the meaning of Article 1(1), point 1, of Directive 91/477, both before and after its amendment by Directive 2017/853. That concept covers ‘any portable barrelled weapon that expels, is designed to expel or may be converted to expel a shot, bullet or projectile by the action of a combustible propellant …’. (25)

Of the observations submitted by the interveners in this regard, I am more convinced by those put forward by the Parliament, whose arguments I endorse. That institution states that the addition of point 9 of category A was more about clarifying a provision that was already in force than introducing a substantive amendment. (26)

It goes on to say that the weapons under point 9 of category A were originally designed to propel shot, bullets or projectiles and, in accordance with Article 1(1), point 1, of Directive 91/477 prior to the 2017 amendment, could have been excluded from the concept of ‘firearm’ only in one of the circumstances listed in points (a), (b) and (c) of Part III of Annex I, (27) none of which was present.

In this regard, it argues that:

with respect to point (a) of Part III of Annex I to Directive 91/477, the weapons included under point 9 of category A have undergone a less radical conversion than one rendering them unfit for use, and are therefore still operational, albeit only for the firing of blanks. The distinction is clear, since the deactivated weapons in category A, unlike prohibited firearms, fall under point 6 of category C as being subject to declaration;

with respect to points (b) and (c) of Part III of Annex I of that directive, the weapons listed there (with the exception of reproductions of antique weapons) (28) remain unchanged under the 2017 reform, which indicates that these are not weapons as listed under point 9 of category A.

Consequently, the conversion of a firearm into a blank-firing weapon did not alter its original status (as a firearm subject to the harmonised rules of Directive 91/477) under Article 1(1), point 1, of that directive prior to its amendment by Directive 2017/853.

As I have already stated, I endorse the substance of those arguments, which lend themselves to further reinforcement.

Semi-automatic firearms converted into blank-firing weapons are equipped with mechanisms originally designed to withstand the discharge of live fire. To that extent, they fall squarely within the concept defined in the second subparagraph of Article 1(1), point 1, of Directive 91/477 prior to its amendment by Directive 2017/853. (29)

Thus, that type of ‘object’ is capable of being converted to launch a shot, bullet or projectile by the action of a combustible propellant. If, in addition, it ‘has the appearance of a firearm’ and, ‘as a result of its construction or the material from which it is made, it can be so converted’, what greater capability for that purpose can there be than that of the original weapon which has been converted?

The same outcome results from a comparison of the firearms at issue with deactivated weapons. Another reference for a preliminary ruling (30) raised the question of whether deactivated weapons fell within the concept of ‘firearm’. I came down in favour of a positive answer to that question, after stating that:

any weapon includes certain ‘essential components’. The aim of deactivation is to ensure ‘that all essential parts of the firearm have been rendered permanently inoperable and incapable of removal, replacement or a modification’; (31)

those essential components were themselves firearms according to the definition in Article 1(1b) of Directive 91/477 prior to its amendment by Directive 2017/853. (32)

If this is true of deactivated weapons, it must be particularly true of weapons that undergo conversions enabling them to fire blank ammunition. In semi-automatic weapons converted to discharge such ammunition, the essential components remain intact and operational, with the exception of barrelled weapons. (33) The amendment introduced by Directive 2017/853, which extended the list of essential components (now set out in Article 1(2)), corroborates that assertion. (34)

In short, semi-automatic weapons in existence at the time of the entry into force of the reform of Directive 91/477 which previously came under category B and, following the reform, now fall under points 6 to 8 of category A, require authorisation and registration whether or not they have been adapted to fire blanks.

Whether or not the Member States observed that principle when enacting their domestic rules is a different matter. It is clear from the information provided that some (six, including Belgium) did not. (35) That state of affairs does not, however, detract from everything which has been said so far.

Difference in treatment and equality before the law

Holders of semi-automatic weapons classified under points 6 to 8 of category A, despite being in a comparable situation (from the point of view of the legal rules applicable to them), thus receive different treatment: if they were in possession of unconverted weapons, they are subject to the transitional arrangements laid down in Article 7(4a) of Directive 91/477 following the reform carried out by Directive 2017/853; if those same weapons have been adapted to fire blanks, they do not qualify for the transitional arrangements.

A difference in the treatment of comparable situations ‘is justified [only] if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment’. (36)

Since, in this case, the doubt as to validity extends to a legislative act of the European Union, ‘it is for the European Union legislature to demonstrate the existence of objective criteria put forward as justification and to provide the Court with the necessary information for it to verify that those criteria do exist’. (37)

In their written observations, the intervening institutions express different views on whether the situation of holders of weapons under points 6 to 8 of category A is comparable to that of holders of weapons under point 9 of category A:

the Parliament, despite maintaining that blank-firing weapons should have been authorised prior to the reform carried out by Directive 2017/853, argues that holders of such weapons were not in a situation comparable to that of holders of weapons under points 6 to 8 of category A; (38)

for the Council, since blank-firing weapons did not require authorisation and registration, holders of such weapons were not in a situation comparable to that of holders of weapons under points 6 to 8 of category A. It nevertheless acknowledges that, under Article 3 of Directive 91/477, Member States were able to establish a more stringent regime and require authorisation;

the Commission submits that there is nothing to prevent the Member States from affording similar treatment to weapons under points 6 to 8 of category A and blank-firing weapons in the case where the latter, because they have been adapted to fire blanks, are classified under point 9 of category A. The directive itself does not create an obligation capable of infringing the right to equal treatment.

Given the diverse range of views among the institutions, those attending the hearing discussed whether extending the transitional arrangements provided for in Article 7(4a) of Directive 91/477, as amended by Directive 2017/853, to blank-firing weapons would have compromised the objective of safeguarding public safety pursued by the latter directive.

With some variation, the institutions agreed that the transitional arrangements were designed in the light of the variety of models hitherto in existence in the Member States. In the case of blank-firing weapons, the legislature took a different approach from that under Article 7(4a) of Directive 91/477: instead of focusing on authorisation by category of weapon (as that article does), it preferred to avail itself of the potential exceptions under Article 6, which allows a case-by-case examination of the circumstances of the holder of a converted blank-firing weapon.

To my mind, that explanation is flawed in at least three respects from the point of view of the right to equal treatment enjoyed by holders of semi-automatic weapons, whether converted or not, who lawfully acquired those firearms before 13 June 2017.

First, the legislative disparity at national level does not justify the adoption of solutions which disregard the fact of the (uniform) scope of application of Directive 91/477 prior to its amendment by Directive 2017/853.

Second, there is no reason why, subject to proper precautions, transitional arrangements could not have been made available for holders of semi-automatic weapons converted to firing blanks, provided that (in those Member States that did not subject such firearms to authorisation) holders of those weapons duly registered them. This approach, to which I shall refer later, would have ensured that, in those Member States (the majority) which did operate a prior authorisation scheme, the holders of those firearms were not suddenly prevented from possessing them.

Third, recourse to the arrangements under Article 6 of Directive 91/477 does not remedy the inequality. It is true that that directive, as amended by Directive 2017/853, after laying down the prohibition of the weapons in category A, set out a series of exceptions (in Article 6(2) to (7) of that directive). Under that article:

the general rule (paragraph 1 of Article 6 of Directive 91/477) is the prohibition of ‘the acquisition and possession of the firearms, the essential components and the ammunition classified in category A’, Member States being required to ensure that such firearms, essential components and ammunition as are ‘unlawfully held in contravention of that prohibition are impounded’;

under the exceptions, authorisation for firearms, essential components and ammunition classified in category A may be granted in certain circumstances. (39) This thus offers some scope for reducing the impact of the prohibition on certain holders of such weapons, in order to ensure that that prohibition is proportionate.

However, the semi-automatic weapons listed under points 6, 7 or 8 of category A represent, as I have just said, at least the same risk: without needing to be converted, they are intrinsically capable of firing (an unlimited number of) bullets or projectiles. It was therefore reasonable for them too to be classified as prohibited firearms under category A.

What is less logical, from the point of view of the objective of public safety, is, as I have said, that the legislation permits the temporary possession of weapons which are intrinsically more dangerous (unconverted semi-automatic firearms), but does not extend those same transitional arrangements to weapons which are, in theory, less dangerous because they have been converted to fire blanks.

In their written observations, the intervening institutions argue that not requiring the prior registration of blank-firing weapons would make it impossible to monitor those in existence. I do not find that explanation to be satisfactory, however:

first, because Directive 91/477 has since its inception provided for the registration of undeclared weapons. The second subparagraph of Article 8(1) thereof requires Member States to provide for ‘the compulsory declaration of all firearms classified in category C at present held within their territories but not previously declared within one year of the entry into force of the national provisions transposing this Directive’. The same mechanism could have been extended to the weapons in other categories, in particular those under point 9 of category A;

second, because that explanation does not hold good for (the majority of) Member States that did operate schemes for the authorisation and registration of such weapons;

third, because no explanation whatsoever has been put forward of the obstacles which, it is said, would have resulted from the establishment of a transitional declaration and registration period as a less onerous alternative to having no transitional arrangements at all. (40)

In conclusion, I am of the view that Article 7(4a) of Directive 91/477 is contrary to the principle of equal treatment before the law inasmuch as, without reasonable justification, it treats comparable situations differently.

If the Court agrees with my assessment, there will be no need to examine whether that provision is compatible with Article 17(1) of the Charter and the principle of legitimate expectations. In the event that it does not, I shall briefly examine these.

Validity of Article 7(4a) of Directive 91/477 in the light of Article 17(1) of the Charter

The premiss is that those who acquire weapons listed under points 6 to 8 of category A which were converted to fire blanks prior to 13 June 2017 are prohibited from having them in their possession, even temporarily. The uncertainty is whether that interference with the right to own property is reasonably justified or, conversely, disproportionate. (41)

That same issue arose in the case resolved by the judgment in Czech Republic v Parliament and Council. In that judgment, the Court, after reiterating its case-law on Article 17(1) of the Charter, (42) maintained that the prohibition of the semi-automatic firearms provided for in points 6 to 8 of category A of Part II of Annex I to Directive 91/477, as amended by Directive 2017/853, did not constitute a disproportionate interference with the right to own property enjoyed by the holders of such firearms.

However, the reasons that dictated that finding were, in essence as follows:

that Article 7(4a) of Directive 91/477, as amended by Directive 2017/853, introduced transitional arrangements as a result of which that directive ‘does not require the expropriation of the holders of such weapons that were acquired before its entry into force’; (43)

that that prohibition ‘merely prevents, in principle, the acquisition of ownership of property and is subject to all the exceptions and derogations referred to in Article 6(2) to (6) of Directive 91/477’. (44)

Now, the first of those reasons does not apply to the semi-automatic weapons listed under points 6 to 8 of category A which have been converted to fire blanks and are classified as such under point 9 of category A. The absence of any transitional arrangement for such weapons means that those lawfully acquired before 13 June 2017 are automatically deemed to be prohibited and must be impounded.

With regard to the second reason, I have already argued that Article 6 of Directive 91/477, as amended by Directive 2017/853, does not remedy the shortcomings identified, since it leaves no scope for regularising important categories of lawfully held blank-firing weapons, for which no provision is made in that article. In those cases, holders of blank-firing weapons that were previously and lawfully acquired before 13 June 2017 suffer immediate dispossession, in the absence of a transitional arrangement, which is unaccompanied by any compensation.

It is true that the EU legislature may make it impossible to retain ownership of previously and properly acquired blank-firing weapons on grounds of ‘the use of property in the general interest within the meaning of the third sentence of Article 17(1) of the Charter’. (45)

However, if it decides to do so in the case of previously and properly acquired firearms which, since they do not qualify for the general exceptions available, are good only to be abandoned or permanently deactivated, it fails to honour the guarantee of the right to own property.

That guarantee could be safeguarded only by compensating the dispossessed holder, but no such compensation is provided for in Directive 91/477 as amended by Directive 2017/853.

One of the intervening institutions proposes that liability be deflected towards the Member States, on the ground that it is for them to ensure that directives are correctly transposed, and that they could have provided for compensation when incorporating Directive 91/477, as amended by Directive 2017/853, into their domestic law. (46)

That may be a valid proposition if the EU provision confers some discretion on the Member States, but not in the case where, as here, on a combined reading of Article 6 and Article 7(4a) of Directive 91/477, certain categories of semi-automatic weapons converted to fire blanks which were originally acquired lawfully can no longer be lawfully possessed.

Principle of legitimate expectations

‘In accordance with the Court’s settled case-law, the right to rely on the principle of the protection of legitimate expectations presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union. That right applies to any individual in a situation in which an EU institution, body or agency, by giving that person precise assurances, has led him [or her] to entertain well-founded expectations. Information which is precise, unconditional and consistent, in whatever form it is given, constitutes such assurances’. (47)

Like the three institutions intervening in this case (Parliament, Council and Commission), I take the view that the order for reference does not identify any guarantee given by the legislature or any other EU authority to holders of weapons classified under point 9 of category A of Part II of Annex I to of Directive 91/477 that would support the expectation that that they would be able retain any such weapons acquired prior to 13 June 2017 under a transitional arrangement.

On the contrary, the studies that preceded the reform carried out by Directive 2017/853 highlighted the differences between the rules laid down by the Member States in application of Directive 91/477 and suggested that uniform criteria be defined for alarm or acoustic weapons to prevent them from being converted into functioning firearms. (48)

If Article 3 of Directive 91/477 supported the expectation of a general tightening of the conditions for possession of firearms, the immediate background to the reform provided a specific indication of that trend.

Conclusion

In the light of the foregoing, I propose that the Court’s answer to the Cour constitutionnelle (Constitutional Court, Belgium) should be as follows:

Article 7(4a) of Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons, as amended by Directive (EU) 2017/853 of the European Parliament and of the Council of 17 May 2017, infringes Articles 17 and 20 of the Charter of Fundamental Rights of the European Union, inasmuch as:

it does not authorise Member States to extend the transitional arrangements provided for in that article for semi-automatic firearms classified under points 6 to 8 of category A of Part II of Annex I to that directive to those same firearms which, as a result of having been converted to fire blanks, are listed in point 9 of category A of Part II of Annex I to that directive, or to make similar arrangements for the latter firearms;

it does not provide for compensation in cases where holders are deprived of the ownership and use of lawfully acquired weapons but do not qualify for the exceptional option for securing authorisation as provided for in Article 6 of Directive 91/477.

—

(1) Original language: Spanish.

(2) Loi du 5 mai 2019 portant des dispositions diverses en matière pénale et en matière de cultes, et modifiant la loi du 28 mai 2002 relative à l’euthanasie et le Code pénal social (Law making various provisions on criminal and religious matters and amending the Law of 28 May 2002 on euthanasia and the Social Criminal Code) (Moniteur belge of 24 May 2019, p. 50023; ‘the Law of 5 May 2019’). This amended the Loi du 8 juin 2006 réglant des activités économiques et individuelles avec des armes (Law of 8 June 2006 regulating economic and individual activities with weapons (Moniteur belge of 9 June 2006, p. 29840; ‘the Law on Weapons’)).

(3) Council Directive of 18 June 1991 on control of the acquisition and possession of weapons (OJ 1991 L 256, p. 51). This 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).

(4) Directive of the European Parliament and of the Council of 17 May 2017 amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons (OJ 2017 L 137, p. 22).

(5) I have reproduced the articles as amended by the Law of 5 May 2019.

(6) As far as is relevant to this case, that challenge was directed at Article 153(5) in conjunction with Article 163 of that law, which amended Article 3(4) and Article 45/2 respectively of the Law on Weapons.

(7) That law entered into force on 3 June 2019.

(8) Directive 2017/853 provides for the same scheme in respect of blank-firing weapons in categories B and C of Part II of Annex I (which are subject to authorisation and declaration respectively), meaning that any weapon will be subject to the arrangement (prohibition, authorisation or declaration) that was applicable to it before it was converted into a blank-firing weapon. As the referring court’s doubts relate only to prohibited weapons, I shall focus on point 9 of category A, leaving aside point 8 of category B and point 5 of category C.

(9) Although point 9 refers to ‘any firearm in this category [A] that has been converted to firing blanks, irritants, other active substances or pyrotechnic rounds or into a salute or acoustic weapon’, this dispute is focused exclusively on firearms converted to firing blanks (paragraph B.14 of the order for reference). For the purposes of the present case, therefore, references to point 9 of category A will, unless defined otherwise, be to blank-firing weapons only.

(10) The Cour constitutionnelle (Constitutional Court) states that the outright ban on such weapons as from 13 June 2017 was foreseeable upon publication of Directive 2017/853. It relies on the judgment of 3 December 2019, Czech Republic v Parliament and Council (C‑482/17, EU:C:2019:1035; ‘the judgment in Czech Republic v Parliament and Council’) to support its finding that that ban was compatible with the right to own property and the protection of legitimate expectations.

(11) According to the Cour constitutionnelle (Constitutional Court), the judgment in Czech Republic v Parliament and Council analysed only the lack of transitional arrangements for weapons under points 6, 7 or 8 of category A which were acquired after 13 June 2017 (paragraph B.18.3 of the order for reference). The issue in this case is the lack of transitional arrangements for weapons under point 9 of category A which were acquired before that date.

(12) The reform introduced by Directive 2008/51/EC [of the European Parliament and of the Council of 21 May 2008 amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons (OJ 2008 L 179, p. 5)] maintained that structure and simply changed the content of category B.

(13) Points 1 to 5 of category A remained as they were. Other types of semi-automatic weapons remained in category B.

(14) Article 6(1) of Directive 91/477.

(15) The Belgian Government takes the view, which it expressed after examining the history of the legislation, that this was an oversight. The Parliament, the Council and the Commission, on the other hand, stated at the hearing that the exclusion was intentional, given the disadvantages associated with any other interpretation.

(16) The Commission appears to be referring to that interpretation when, in its written observations (paragraph 73 et seq.), it submits that it is not Article 7(4a) of Directive 91/477 which creates the difference in treatment between holders of weapons falling into different categories, but rather the Belgian law transposing that provision, which has been able to refuse to confirm, renew or prolong the authorisations granted for the semi-automatic firearms under points 6, 7 or 8 of category A.

(17) That possibility was aired by the Court at the hearing. Whilst some of the interveners did not object to it, others considered it to be contra legem.

(18) Judgment of 20 September 2022, VD and SR (C‑339/20 and C‑397/20, EU:C:2022:703), paragraph 71, which cites the judgment of 25 January 2022, VYSOČINA WIND (C‑181/20, EU:C:2022:51), paragraph 39.

(19) I refer, as I shall explain later, to semi-automatic blank-firing weapons that had hitherto been subject to authorisation (category B) under Directive 91/477, even though they were in fact sold freely in some States.

(20) ‘… sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation …’. Paragraph 2 adds nationality, subject to certain reservations.

(21) Judgment of 17 October 2013, Schaible (C‑101/12, EU:C:2013:661), paragraph 76.

(22) Paragraphs 26, 33 and 37 of its written observations. The Belgian Government clarified its position at the hearing, stating that the registration referred to in paragraph 33 did not apply to blank-firing weapons.

(23) Paragraphs 12 and 13 of its written observations.

(24) The Commission, after calling into question the admissibility of the reference for a preliminary ruling on the basis of the absence of authorisation and registration in Belgium, later recognises that blank-firing weapons were ‘firearms’ and subject as such to the rules of Directive 91/477 prior to its amendment (paragraph 30 of its written observations).

(25) Emphasis added [facilmente – does not appear in the English version]. The adverb ‘fácilmente’ (easily) that is contained in the Spanish version does not appear in the other language versions consulted (in German: ‘eine Kugel oder ein anderes Geschoss mittels Treibladung durch einen Lauf verschießt, die für diesen Zweck gebaut ist oder die für diesen Zweck umgebaut werden kann’; in English: ‘may be converted to expel a shot, bullet or projectile’; in French: ‘qui propulse des plombs, une balle ou un projectile par l’action de la combustion d'une charge propulsive, ou qui est conçue pour ce faire ou peut être transformée à cette fin’; in Italian: ‘o può essere trasformata al fine di espellere un colpo’; in Portuguese: ‘que possa ser modificada para disparar balas ou projéteis’; or in Romanian: ‘sau poate fi transformată să expulzeze o alice, un glonț sau un proiectil’). The absence of the adverb in other language versions aside, I do not believe that, from the point of view of safety, the ease or difficulty of conversion is a suitable criterion for classifying whether or not a weapon is a ‘firearm’. The mere fact that the weapon can be converted in itself implies a risk.

(26) Parliament’s observations, paragraph 23. In footnote 7, the Parliament comments that the same purpose was served by the addition of point 8 to category B and point 5 to category C, in the case of blank-firing weapons obtained from the conversion of weapons amenable to authorisation and subject to declaration respectively.

(27) Namely, in the case of: (a) weapons rendered permanently unfit for use; (b) weapons designed for alarm, signalling, life-saving, animal slaughter or harpoon fishing or for industrial or technical purposes, provided that they can be used for the stated purpose only; or (c) antique weapons or reproductions of same.

(28) Being firearms, such reproductions are to be included in the corresponding category of Part II of Annex I [to Directive 91/477], since they ‘can be built using modern techniques that improve their durability and accuracy, suggesting that such weapons can be more dangerous than real antique weapons’ (judgment in Czech Republic v Parliament and Council, paragraph 129).

(29) The amendment made by Directive 2017/853 was not substantive in this regard.

(30) Judgment in A (Movement of deactivated firearms), on which I delivered my Opinion on 7 July 2022 (C‑296/21, EU:C:2022:538).

(31) Point (a) of Part III of Annex I to Directive 91/477 prior to its amendment by Directive 2017/853.

(32) The reform of Directive 2008/51 incorporated into Article 1(1b) of Directive 91/477 the provisions originally contained in point (b) of Part II of Annex I.

(33) The operations whereby a real firearm is converted into a blank-firing weapon focus on the barrel of the weapon. A number of pins through the bore of the barrel physically prevent a projectile from being discharged, while leaving space for the expulsion of gases from combustion of the gunpowder in the blank cartridge. One of the pins must be placed through the breech, at the front of the bullet chamber, in order to make it impossible for a live round to be introduced, thus preventing accidents.

(34) Unlike the process of reconfiguring a weapon by combining essential components from other weapons, converting a weapon back to a firearm by removing the adaptations made to the barrel to allow blank firing is guaranteed to support the structural integrity of the essential components of the original weapon, without the need for any modification or adjustment.

(35) A large number of Member States adhered to that principle. The Parliament’s, Council’s and Commission’s replies to a question put by the Court agree that the acquisition and possession of blank-firing weapons was not subject to authorisation in only six Member States. At the hearing, it emerged that the variety of approaches taken by the national legislatures (in what was described as legislative ‘cacophony’ and ‘chaos’) played a decisive role in the approach taken to clarifying and laying down in greater detail the rules already contained in Directive 91/477 prior to the 2017 reform.

(36) Judgment of 17 October 2013, Schaible (C‑101/12, EU:C:2013:661), paragraph 77.

(37) Ibidem, paragraph 78.

(38) Although it relies on the diversity of the legal arrangements in place in the Member States (paragraphs 49 and 52 of its written observations), it stated in reply to a question put by the Court that that diversity ‘cannot have the effect of modifying the scope of application of Directive 91/477’.

(39) See the judgment in Czech Republic v Parliament and Council, paragraph 122. Any such exceptional authorisations, enveloped in public safety and public order safeguards to ensure the identification, registration, storage, safekeeping and control of weapons, are granted for: i) ‘… the protection of … critical infrastructure, commercial shipping, high-value convoys and sensitive premises, as well as for national defence, educational, cultural, research and historical purposes’; ii) ‘collectors’; iii) ‘dealers and brokers’; iv) ‘museums’; and v) ‘target shooters’.

(40) The intervening institutions did not offer any satisfactory explanation on this point at the hearing, beyond reiterating that the solution is to be found in Article 6 of Directive 91/477.

(41) In the opinion of the referring court, this may be a case of de facto expropriation which, in the absence of full and prior compensation, would be contrary to Article 17(1) of the Charter.

(42) It held that [Article 17(1)] ‘does not lay down an absolute prohibition on persons being deprived of their possessions’, but that it ‘does … provide that such deprivation may occur only where it is in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss’.

(43) Judgment in Czech Republic v Parliament and Council, paragraph 135.

(44) Ibidem, paragraph 136.

(45) Ibidem, paragraph 137.

(46) This was argued in particular by the European Parliament at the hearing.

(47) Judgment of 5 March 2019, Eesti Pagar (C‑349/17, EU:C:2019:172), paragraph 97.

(48) See the judgment in Czech Republic v Parliament and Council, paragraphs 87 and 89, and the Report from the Commission to the European Parliament and the Council of 18 November 2015, ‘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 final).