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Monitoring References to the Court of Justice of the European Union

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Case C-267/16, Buhagiar – Gibraltar, guns and the constitutional order [judgment 2018, ECLI:EU:C:2018:26]

C-267/16ECLI:EU:C:2018:26judgmentCURIA ↗EUR-Lex ↗

From the archive — report by Stephen Vousden

The Supreme Court of Gibraltar has made its first preliminary reference to the CJEU, and the burning issue is the free movement of hunters’ firearms.

Background
The background to this case is reported in an article printed in the ‘Gibraltar Chronicle’ on 18 April 2016. In essence, the Gibraltar Target Shooting Association believes that hunters and their firearms should benefit from free movement under the provisions of the EU’s ‘EFP’ Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons (OJ [1991] L256/51).

The UK Government, the EU Commission and the Government of Gibraltar disagree with the Association’s interpretation of EU law and say that the Directive concerns the free movement of goods so it does not apply to Gibraltar.

Questions Referred
According to the EUR-LEX website, the Supreme Court in Gibraltar has asked:

1. If the EFP provisions in the Directive […] concern only the free movement of goods, can they nonetheless apply to Gibraltar on the basis that they do not involve a trade or commercial transaction and are therefore outside the scope of the derogations granted to Gibraltar under the 1972 Act of Accession?

2. Are the provisions of the Directive concerning the EFP, as regards hunters and sports target shooters, applicable to Gibraltar on the ground that they concern the free movement of services?

3. Are the provisions of the Directive concerning the EFP, as regards hunters and sports target shooters, invalid on the ground that they concern the free movement of persons and have therefore been adopted under the wrong legal basis?

Comment
Parallel to this preliminary reference about firearms, there are two more about gambling. Both of the gambling references also turn on Gibraltar’s legal status.

The first is Case C-591/15, The Gibraltar Betting and Gaming Association Limited. According to the EUR-LEX website, the Queen’s Bench Division (Administrative Court) has asked:

For the purposes of Article 56 TFEU and in the light of the constitutional relationship between Gibraltar and the United Kingdom:
Are Gibraltar and the UK to be treated as if they were part of a single Member State for the purposes of EU law and so that Article 56 TFEU does not apply, save to the extent that it can apply to an internal measure? Alternatively,

Having regard to Article 355(3) TFEU, does Gibraltar have the constitutional status of a separate territory to the UK within the EU such that the provision of services between Gibraltar and the UK is to be treated as intra-EU trade for the purposes of Article 56 TFEU? Alternatively,

Is Gibraltar to be treated as a third country or territory with the effect that EU law is only engaged in respect of trade between the two in circumstances where EU law has effect between a Member State and a non-Member State? Alternatively,

Is the constitutional relationship between Gibraltar and the UK to be treated in some other way for the purposes of Article 56 TFEU?

Do national measures of taxation that have features such as those found in the New Tax Regime constitute a restriction on the right to the free movement of services for the purposes of Article 56 TFEU?

If so, are the aims, which the referring Court has found domestic measures (such as the New Tax Regime) to pursue, legitimate aims, which are capable of justifying the restriction on the right to free movement of services under Article 56 TFEU?

The second is Case C-192/16, Fisher. The case concerns a family that owns shares in Stan James. According to the EUR-LEX website, the Upper Tribunal (Tax and Chancery Chamber) has asked:

For the purposes of Article 49 TFEU (freedom of establishment) and in the light of the constitutional relationship between Gibraltar and the United Kingdom:

Are Gibraltar and the UK to be treated as if they were part of a single Member State (a) for the purposes of EU law and if so, does that have the consequence that Article 49 TFEU has no application as between the UK and Gibraltar save to the extent that it can apply to an internal measure, or alternatively (b) for the purposes of Article 49 TFEU taken individually, so that that article does not apply save to the extent that it can apply to an internal measure? Alternatively,

Having regard to Article 355(3) TFEU, does Gibraltar have the constitutional status of a separate territory to the UK within the EU such that either (a) the exercise of the right of establishment as between Gibraltar and the UK is to be treated as intra-EU trade for the purposes of Article 49 TFEU, or (b) Article 49 TFEU applies to prohibit restrictions on the exercise of the right of establishment by nationals in the UK in Gibraltar (as a separate entity)? Alternatively,

Is Gibraltar to be treated as a third country or territory with the effect that EU law is only engaged in respect of transactions between the two in circumstances where EU law has effect between a Member State and a non- Member State? Alternatively,

Is the constitutional relationship between Gibraltar and the UK to be treated in some other way for the purposes of Article 49 TFEU?

How, if at all, does the answer to the above questions differ when considered in the context of Article 63 TFEU (and consequently as regards the freedom of movement of capital) rather than Article 49 TFEU?

Update – 4 September 2016
The Grand Chamber is due to hear Case C-591/15, The Gibraltar Betting and Gaming Association Limited on 4 October 2016.

Outcome. By judgment of 23 January 2018 (ECLI:EU:C:2018:26) the Court held that the European Firearms Pass provisions of the Firearms Directive do not apply to the territory of Gibraltar, as the Directive’s travel-facilitation rules concern the free movement of goods from which Gibraltar is excluded under the 1972 Act of Accession. Examination of the questions disclosed nothing affecting the Directive’s validity — Gibraltar’s sport shooters travel without the Pass.