EU Ban on Semiautomatic Guns Backed by Magistrate

A variety of semi-automatic rifles. (Damian Dovarganes, Associated Press)

(CN) – Rejecting a challenge by the Czech Republic, a magistrate judge urged Europe’s top court Thursday to uphold a law banning the use of semiautomatic weapons by civilians, among other gun restrictions.

The European Commission began working on the legislation following a series of attacks in 2015 that left 120 people dead in Paris, France, as well several more deaths in Copenhagen, Denmark.

After the directive took effect in 2017, Czech Republic applied to have the European Court of Justice annul it on multiple fronts. Hungary and Poland later intervened to support the challenge.

In particular, the countries took issue with the failure of EU lawmakers to conduct an impact assessment and the fact that the new law bars semiautomatic weapons that were not used in the 2015 attacks.

Advocate General Eleanor Sharpston recommended nixing the challenge Thursday, saying that the legislation should not have been left to the authorities of individual member states.

“It seems to me that, given that context, divergent national measures would have impeded the free circulation of goods,” Sharpston wrote. “The EU legislature had to act in order to adjust, at EU level, the balance being struck between free movement of goods and public safety. Moreover, precisely because Directive 2017/853 further harmonizes controls on firearms, it adds to the provisions promoting mutual confidence between member states contained in Directive 91/477 and thereby reduces the need for member states to act individually.”

Poland tried to make the case that firearms do not qualify as dangerous goods, but the magistrate determined otherwise.

“First (an obvious point): firearms are intrinsically dangerous goods,” she wrote (parentheses in original). They give rise to safety concerns not only for their users but for the wider public. That is why the legislature has introduced marking and authorization obligations together with provisions that restrict the possession and acquisition of such weapons. Directive 2017/853 principally contains classic measures used to promote the establishment of the internal market in circumstances where it is necessary to place restrictions on a product (because safety is an issue) to avoid the establishment of border controls and to promote the free circulation of goods and persons. It follows that I emphatically reject Poland’s submission that firearms are not dangerous goods for the purposes of EU law.”

As for the law’s proportionality, Sharpston said that the failure to conduct an impact assessment does not doom the legislation.

Sharpston called it “perfectly true that impact assessments are an important and useful tool,” but determined that a 2016 EU agreement on better lawmaking never uses the words “shall” or “must” when referring to these tools.

“Such an absolute construction of the Interinstitutional Agreement would be an unjustified fetter on the discretion conferred on the legislature under the Treaties,” she wrote. “It would make it impossible to take legislative action even where the circumstances clearly demonstrate the need for urgent action. I add, for good measure, that the court has already ruled that an impact assessment is not binding on either the Parliament or the Council.”

The Luxembourg-based European Court of Justice will now begin its own proceedings in the case. Sharpston’s opinion is not binding.

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