September 18
2021
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Julia Fernández Arribas
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27th July 2021
Human Rights Internal Market Justice & Litigation

Belgian Constitutional Court requests preliminary ruling on the difference of treatment for the acquisition and possession of firearms under transitional regime

A request for a preliminary ruling made by the Constitutional Court of Belgium (Cour constitutionnelle), in case Défense Active des Amateurs d’Armes and Others (C-234/21), has now been published. The request concerns whether, in the specific context of transitional arrangements for firearms, Article 7(4a) of Weapons Acquisition and Possession Directive 91/477 breaches Articles 17(1), 20 and 21 of the Charter of Fundamental Rights of the European Union and the principle of the protection of legitimate expectations.

The provision in question subjects the acquisition and possession of a certain type of firearms to prior authorisation, providing for a transitional regime only for owners of firearms who acquired and registered them before 13 June 2017, but not for those who did so between 13 June 2017 and 3 June 2019. The applicants argue that in doing so it breaches the principles of equality before the law and non-discrimination.

The applicants allege that in this context the provision breaches the right to property and the principle of legality in criminal matters. They are concerned that the lack of a transitional arrangement for the second category of owners constitutes an unjustified difference of treatment and subjects them to criminal sanctions, even if they legally acquired the firearm, as they do not have the capacity to adapt to the new regulation on time.

The referring court therefore questions whether in this case Article 7(4a) of Directive 91/477 infringes the right to property (Article 17(1) of the Charter) and the principles of equality before the law (Article 20 of the Charter), of non-discrimination (Article 21 of the Charter) and of the protection of legitimate expectations.

In parallel, under the legal order of the European Convention on Human Rights (ECHR), as reported here, the French Council of State (Conseil d’État) requested its first-ever advisory opinion from the European Court of Human Rights in April 2021 concerning the relevant criteria to assess the compatibility with Article 14 ECHR (prohibition of discrimination) and Article 1 of Protocol No. 1 (right to property) of a national legislative provision that limits the possibility of hunting owner associations to withdraw their land from the territory of an approved municipal hunting association.

Access the published action here.

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