Article 20 - Equality before the law
Article 21 - Non-discrimination
Article 49 - Principles of legality and proportionality of criminal offences and penalties
Article 17 - Right to property
Key facts of the case:
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.
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
The consideration of the question referred for a preliminary ruling has not revealed any factor capable of affecting the validity of 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, in the light of Article 17(1) and Articles 20 and 21 of the Charter of Fundamental Rights of the European Union and of the principle of the protection of legitimate expectations.
17 By application of 22 November 2019, DAAA and Others brought an action before the Cour constitutionnelle (Constitutional Court, Belgium) for annulment of, inter alia, Article 153(5) of the Law of 5 May 2019. In their view, that provision infringes, inter alia, several provisions of the Belgian Constitution, Article 49 of the Charter and the principle of the protection of legitimate expectations, in so far as it provides, in essence, that firearms which were freely sold in Belgium until 3 June 2019, namely weapons which have been converted to fire blanks, irritants, other active substances or pyrotechnic rounds or into salute or acoustic weapons, and non-converted firearms used solely for firing the abovementioned rounds or substances, shall, from that date, be subject to authorisation or prohibited, without providing for any transitional provision for persons who have lawfully acquired and registered such firearms before that date. From the same date, those persons would thus be at risk of criminal prosecution on the ground that they possess such firearms, even though they did not have the opportunity to prepare themselves with a view to complying with Article 153(5).
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25 Therefore, the question arises as to whether Article 7(4a) is compatible with Article 17(1) and Articles 20 and 21 of the Charter and with the principle of the protection of legitimate expectations, in that it does not authorise Member States to provide for transitional arrangements for the firearms referred to in point 9 of ‘Category A – Prohibited firearms’, contained in point A of Part II of Annex I to Directive 91/477, as amended by Directive 2017/853 (‘category A.9’), which were lawfully acquired and registered before 13 June 2017, whereas it does authorise them to provide for transitional arrangements for firearms referred to in categories A.6 to A.8, which were lawfully acquired and registered before that date.
26 In those circumstances, the Cour constitutionnelle (Constitutional Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling: ‘Does Article 7(4a) of Directive [91/477, as amended by Directive 2017/853], read in conjunction with [points 6 to 9 of ‘Category A – Prohibited weapons’, contained in point A of Part II of Annex 1 to that] directive, infringe [Article] 17(1) [and Articles] 20 and 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?’
31 By its question, the referring court asks, in essence, whether Article 7(4a) of Directive 91/477, as amended by Directive 2017/853, read in conjunction with points 6 to 9 of ‘Category A’ – Prohibited firearms’, contained in point A of Part II of Annex I to Directive 91/477, as amended by Directive 2017/853, is valid in the light of Article 17(1) and Articles 20 and 21 of the Charter and the principle of the protection of legitimate expectations.
35 In addition, in accordance with a general principle of interpretation, an EU act must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with EU primary law as a whole and, in particular, with the provisions of the Charter. Thus, where a provision of secondary EU legislation is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with EU primary law rather than to the interpretation which leads to its being incompatible with EU primary law (judgment of 21 June 2022, Ligue des droits humains, C‑817/19, EU:C:2022:491, paragraph 86 and the case-law cited).
53 Secondly, since the EU legislature noted, in recital 31 of Directive 2017/853, that that directive respects the fundamental rights and observes the principles recognised, in particular, by the Charter, it must be held that Article 7(4a) seeks to ensure respect for acquired rights and, in particular, that of the right to property guaranteed in Article 17(1) of the Charter, in that it allows, in essence, Member States to retain authorisations already granted for 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, with the result that Directive 91/477, as amended by Directive 2017/853, does not require expropriation of the holders of such weapons (see, to that effect, judgment of 3 December 2019, Czech Republic v Parliament and Council, C‑482/17, EU:C:2019:1035, paragraph 135).
54 In the light of that 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. As the present request for a preliminary ruling demonstrates, such an interpretation would raise queries as to whether Article 7(4a) complies with Article 17 of the Charter, whereas the former Article seeks specifically to ensure observance of the right to property.
64 First, as has been noted, in particular, in paragraphs 53 and 54 of the present judgment, that interpretation ensures, on the contrary, the effectiveness of Article 7(4a), in that it seeks to ensure respect for acquired rights, in particular, for the right to property guaranteed in Article 17(1) of the Charter.
68 In those circumstances, it must be held that the consideration of the question referred for a preliminary ruling has not revealed any factor capable of affecting the validity of Article 7(4a) of Directive 91/477, as amended by Directive 2017/853, in the light of Article 17(1) and Articles 20 and 21 of the Charter and of the principle of the protection of legitimate expectations.
