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Conferred Powers, Proportionality and Non-discrimination in the Czech Firearm Case

Niels Kirst (Dublin City University)


On the 3rd of December 2019, the European Court of Justice (hereafter ‘the Court’ or ‘CJEU’) gave its final verdict on the so-called Czech firearms case. In this detailed judgment which gives guidance on the law-making in the European Union (hereafter ‘the EU’), the Court touched on many principles of EU law and refined their meaning. The European Union legislator used its legal powers for the single market (Article 114 TFEU) to adopt Directive (EU) 2017/853, amend the previous firearms Directive 91/477 and Directive 2008/51/EC, in the aftermath of terrorist attacks in Paris and Copenhagen. The initial proposal of the Commission gained steam under the Dutch presidency of the Council in 2016. Finally, the Directive undergo the Trialogue process before being approved according to the co-decision procedure by the European Parliament (hereafter ‘the Parliament’) and the Council of the European Union (hereafter ‘the Council‘). The Parliament approved the amended Directive on 14th of March 2017, while the Council followed suit on the 25th of April 2017, with only the Czech Republic, Poland and Luxembourg disagreeing. Critical voices on political participation and accountability accompanied the legislative process.

The Czech Republic had specifically harsh aversion towards the Directive, since civilian firearm ownership has a long tradition in the Czech Republic, and the Czech government, as well as Czech civil society groups, feared severe consequences for the Czech economy and the cultural heritage. After being outvoted in Parliament and Council, the Czech Government decided to challenge the Directive at the CJEU. It was alleged a breach of the principle of conferral of powers (Article 5 (2) TEU), of the principle of proportionality (Article 5 (4) TEU), of the principle of legal certainty and protection of legitimate expectations and finally, of the principle of non-discrimination. The Czech Republic, supported by Poland and Hungary in its claim, fired full blast to protect its political interest in front of the CJEU.

Earlier this year, AG Sharpston opined that the claims by the Czech Republic are unfounded and that the Court should uphold the Directive as it stands (see my analysis of the opinion here). The most important precedents for this case were the respective claims on the legal basis against the tobacco Directives from tobacco manufactures (see British American Tobacco and Philip Morris Brands). The trade, sale and possession of tobacco in the single market is situated in a field between health protection and the commerce, whereas, the sale, trade and possession of firearms is situated in a field between security and commerce. The critical question the CJEU had to answer was if Article 114 TFEU is an appropriate legal basis for measures which in large parts tighten security standards of firearm possession, or if this impinges of the national sovereignty of the Member States.

First Plea: Breach of the Principle of Conferral of Powers

The Czech Republic based its first plea on an alleged breach of the principle of conferral of powers by the European Union legislator. The baseline of this argument purported by the Czech Republic was that the aims of the new Directive diverted significantly from the aims of the earlier Directives of 1991 and 2008. Therefore, Article 114 TFEU did not constitute an appropriate legal basis anymore. The Czech Republic emphasised that an amended Directive shall not lead to new objectives which derogate from the original legal basis (Para. 21 – 24). By moving towards the fight against terrorism with the new Directive, the European Union legislator had no mandate to adopt these changes under the umbrella of the internal market competence.

The Court went into a general discussion on the appropriate legal basis for adopting a Directive or a Regulation (para. 31 – 33). Respectively, that new legislation might have several purposes, the Court explained. However, the predominant purpose determines the appropriate legal basis of the new legislation. These clarifications were followed by a discussion on the adequate use of Article 114 TFEU (para. 34 – 40), by assessing that the fight against international terrorism is an objective of general interest for the EU (by analogy health was identified as general interest in British American Tobacco and Imperial Tobacco). Subsequently, the Court tried to answer the question, if the safety and prevention of terrorist attacks had become the predominant purpose of the amended Directive and, if therefore, the legal basis of Article 114 TFEU was not appropriate anymore.

While the Czech Republic argued that the Directive should be analysed in isolation. Parliament and Council argued that the amended Directive has to be seen in light of the two earlier Directives (Para. 41 – 45). The Court clarified that an amended Directive must always be assessed in light of its earlier versions. Therefore, Directive 91/477 and the amendments by the new Directive serve as benchmark regarding the adequate legal basis. Assessing Directive 91/477 and the amendments made by the contested Directive, the Court concluded that by ‘adjusting the balance between the free movement of goods and security guarantees, [t]he EU legislature merely adapted the rule on the possession and acquisition of firearms set out in Directive 91/477 to changes in circumstances. [emphasis added]’ (para. 53) – which the EU legislature is entitled to do in its task of safeguarding the general interests recognised by the Treaty (see also Vodafone and Others) (para. 38).

Finally, by pointing to the assessment of the firearms Directive in Buhagiar and Others the Court found that the predominant purpose of the measures read in conjunction with the earlier Directive was still ‘the free movement of goods, approximation of laws, regulations and administrative provisions of the Member States, whilst circumscribing that freedom with safety guarantees that are suited to the nature of the goods at issue’ (para. 59). Firearms are inherently dangerous goods, not only for the user itself (as the Czech Republic argued in the oral hearing) but also for fellow citizens, therefore, safety, as general interest recognised by the Treaty, can form a purpose of a Directive under Article 114 TFEU.

Second Plea: Breach of the Principle of Proportionality

On a different note, the Czech Republic claimed that the European Union legislator did not have sufficient information at its disposal when drafting the Directive and therefore was unable to assess the proportionality of the Directive (para. 65 – 73). This argument was mainly based upon the European Commission skipping an impact assessment before drafting the Directive. The Commission pledged to carry out an impact assessment in an interinstitutional agreement with the Parliament under Article 295 TFEU. However, when the Commission drafted the Directive, it did not have time for a careful impact assessment and instead relied on the REFIT evaluation, which was carried out earlier. The Czech Republic contested that this was insufficient.

The Court highlighted the broad discretion the EU legislator has in evaluating and assessing legislative measures (para. 76 – 81). Further, the Court followed the Opinion of the AG that the pledge to carry out an impact assessment in an interinstitutional agreement under Article 295 TFEU is a non-binding commitment (para. 82). The Court reasoned that not conducting an impact assessment cannot automatically lead to an infringement of the principle of proportionality. Instead, the availability of existing information can still be sufficient to have a meaningful assessment of the principle of proportionality (para. 85). After going through the different studies, which the EU legislator took into account, the Court found that these studies, among them the REFIT evaluation, enabled the legislator to make a meaningful assessment of the proportionality of the new measures (para. 87 – 92).

In the second part of its second plea, the Czech Republic contested that specific articles of the new Directive failed the proportionality test of the EU. Namely, that these measures could have been achieved by less restrictive means (para. 95 – 101). The Czech Republic criticised in its claim the complete prohibition of semi-automatic firearms, as well as the stricter requirements for deactivated and antique firearms (para. 120 and 127). Technical details of the measures which the Czech Republic contested are omitted at this point but can be found in the judgement (para. 102 – 104). The Court first clarified that the judicial review of the proportionality of legislative acts is limited, and that the Court is not in the position to substitute its assessment for that of the EU legislature (para. 118). Instead, it is for the Court to define whether the legislator ‘manifestly exceeded’ its broad discretion (para. 119).

After going through the technical details of the new prohibitions of certain types of semi-automatic firearms, the Court concluded by pointing out that ‘those institutions [the Council and the Parliament] do not appear to have exceeded their broad discretion’ by these prohibitions (para. 126). The Court found the same regarding the proportionality of the new measures regarding deactivated and antique firearms (para. 131). The requirement of ‘manifestly inappropriate in relation to the objectives’ is a high bar to reach for new legislation to be deemed disproportionate. Therefore, the Court with its limited power and capacity of review declared the new measures to fulfil proportionality test.

In the last place, the Czech Republic claimed that the contested Directive interfered with the right to property as it is enshrined in the Charter of Fundamental Rights (hereafter ‘the Charter’) (para. 132). The Court reasoned that Article 17 of the Charter is not an absolute right and may be restricted by limitations which meet the general interest recognised by the EU or the need to protect the rights and freedoms of others (para. 134) (in regard to the ‘right to property’ see a comment on SEGRO, in which the Court discussed Article 17 of the Charter). The Court found the evidence brought forward by the Czech Republic insufficient to prove a disproportionate interference with the right to property as enshrined in the Charter. The Court concluded that a ban on semi-automatic firearms for safety reasons is in the general interest which is recognized in the last sentence of Article 17 (1) of the Charter.

Third Plea: Breach of the Principle of Legal Certainty and of the Protection of Legitimate Expectations

In its third plea, the Czech Republic claimed that specific measures of the new Directive impinged on the principle of legal certainty and legitimate expectations (para. 140 – 143). Specifically, the time requirements of the new Directive would lead to a retroactive application and the process of entering into force of the Directive to unattainable expectations on the part of individuals. Regarding legal certainty, the Court rebutted the argument by pointing out that the classification of firearms in the new Directive are clear and precise, and do, therefore, not lead to a retroactive application (para. 149 – 151). Regarding legitimate expectations of individuals, the Court highlighted that the EU legislator fulfilled its duties by publishing the contested Directive in the Official Journal of the European Union in a timely manner. This allowed individuals to know at which point the new rules will come into force and until when they could buy which kinds of firearms (para. 153 – 156).

Fourth Plea: Breach of the Principle of Non-Discrimination

In its fourth and final plea, the Czech Republic claimed that the so-called ‘Swiss exception’ (Article 6 (6) of the contested Directive), which allows Swiss militia soldiers to keep their semi-automatic firearms after completing their service with the Swiss army constitutes a discrimination against other EU nationals (para. 159 – 161). The Court recalled the principle of equality in EU law as requiring that ‘comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified’ (para. 164). The Court found that the Swiss Confederation and the Member States are not comparable regarding the subject matter of that derogation. The Swiss Confederation ‘has the proven experience and ability to trace and monitor persons and weapons concerned, which gives reason to assume that the public security and safety objectives’ will be achieved (para. 166). Finally, the Czech Republic failed to bring forward evidence that there are other states within the Schengen area which fulfil the same system of mandatory subscription and transfer of military firearms as the Swiss Confederation. Therefore, the Court rejected the plea (para. 167 – 168).


This comprehensive and very detailed judgement closes the legal challenge between the Czech Republic and the EU. Exhausting legal remedies after being outvoted in the Council has a long tradition in the EU (see for example Spain v Parliament and Council). Also, in this case, it is the recurring storyline. The Czech Republic took legal actions after being outvoted in the Council and its MEPs had not won in the Parliament. The judicial route is a logical way to go. However, the question of firearms regulation seems to be of a more political than a legal nature.

The contested Directive certainly lays more emphasis on the security requirements for legal firearms holders. The contested Directive prohibits the possession of semi-automatic firearms within the European single market by civilian citizens. The plea of the Czech Republic focused on the outer limits of Article 114 TFEU. Is this article suitable for tightening of firearms possession, or does it fall into the area of judicial cooperation in criminal matters and must, therefore, be adopted under Article 84 TFEU? As known, from the tobacco case-law of the Court, Article 114 TFEU can be interpreted broadly. Also, in this case, the Court followed this line of reasoning, by allowing a prominent place of security as an objective of a Directive which was adopted under the single market competence of Article 114 TFEU.

The Court affirmed the legislative mandate of the EU to lower the ceiling for firearm possession in the EU. Firearms are goods which are sold and purchased on the internal market; therefore, the EU is the adequate body to regulate, and the internal market competence is sufficient to harmonise the possession of firearms in the EU. As a result, Member States have to converge and adjust in their firearm regulations (if they not already did). Some Member States already have a higher bar of firearms possessions as the one purported by the Directive, others like the Czech Republic now have to change their national laws. The consequence is that also in highly political fields, such as firearms regulation, Member States have to abide by the qualified consensus on the Council level.

Niels Kirst is a Ph.D. Candidate in EU law at the School of Law and Government, Dublin City University

This post was previously published in EU Law Analysis

Photo credit: The Salle des pas perdus in front of the Main Courtroom, Court of Justice of the EU