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Grand Chamber delivers judgment in first (and only?) preliminary reference from Gibraltar

23/01/18

The Grand Chamber of the Court of Justice of the European Union has today delivered judgment in the first ever preliminary reference from the Courts of Gibraltar.  Its judgment clarifies the scope of Gibraltar’s exclusion from the common customs union and the Treaty provisions on free movement of goods.

The decision concerned the application in Gibraltar of Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons (“the Firearms Directive”) which sets out certain minimum conditions for the circulation of civil firearms within the EU. The Claimants in the underlying proceedings were members of the Gibraltar Target Shooting Association, and sought to challenge the Minister of Justice’s refusal to transpose certain provisions of the Firearms Directive relating to the issue of permits for the possession and transit of firearms into domestic law. This Minister had refused to do so on the basis that the relevant provisions concern the free movement of goods and do not therefore apply to Gibraltar. 

The Grand Chamber concluded that the Minister’s position was correct, affirming that the exclusion of Gibraltar from the customs territory of the European Union has the consequence that neither rules on the free movement of goods nor the rules of secondary EU legislation intended, as regards the free movement of goods, to ensure approximation of the laws, regulations and administrative provisions of the Member States pursuant to Articles 114 and 115 TFEU, are applicable to Gibraltar.

The Court went on to conclude that first, where the main aim of an EU act is to ensure approximation of the laws, regulations and administrative provisions of the Member States as regards the free movement of goods, in accordance with Articles 114 and 115 TFEU, that act cannot be applicable on the territory of Gibraltar even if it pursues, as an ancillary aim, one or more objectives connected with other EU policies.

The Court also concluded that (contrary to the Claimant’s contention) the Directive was not adopted on an incorrect legal basis. In so concluding, the Court reaffirmed that the choice of legal basis for an EU measure must rest on objective factors that are amenable to judicial review and that these include the aim and content of that measure. If examination of the measure concerned reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be founded on a single legal basis, namely that required by the main or predominant purpose or component. 

Applying this test, the Court concluded that Directive 91/477 was a measure intended to ensure, as regards the free movement of goods, namely of firearms for civilian use, approximation of the laws, regulations and administrative provisions of the Member States, whilst circumscribing that freedom with safety guarantees suited to the nature of those goods. This conclusion was not affected by the fact that the Directive had application in both commercial and non-commercial contexts (e.g. by hunters and sports target shooters in order to be used in their respective activities). The Court re-affirmed that the free movement of goods provisions apply, in principle, irrespective of whether the goods concerned are being transported across borders for the purposes of sale or resale, or rather for personal use or consumption.

The Judgment, case C-267/16 Buhagiar & Ors v Minister for Justice, is available here

Marie Demetriou QC and Malcolm Birdling appeared for the United Kingdom Government.