Keserű Művek Fegyvergyár Kft. v European Union, represented by the European Commission (T-519/23)

Contents

Judgment of the General Court (Eighth Chamber)23 October 2024^note(Non-contractual liability — Control of the acquisition and possession of weapons — Implementing Directive (EU) 2019/69 — Causal link — Concept of firearm — Concept of alarm and signal weapons)In Case T‑519/23,Keserű Művek Fegyvergyár Kft., established in Budapest (Hungary), represented by A. Grád, lawyer,vEuropean Union, represented by the European Commission, represented by K. Talabér-Ritz and R. Tricot, acting as Agents,supported byFrench Republic, represented by B. Fodda, R. Bénard and O. Duprat-Mazaré, acting as Agents,THE GENERAL COURT (Eighth Chamber),composed of A. Kornezov (Rapporteur), President, G. De Baere and D. Petrlík, Judges,Registrar: V. Di Bucci,having regard to the written part of the procedure,having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,gives the following

Judgment

1By its action under Article 268 TFEU and the second paragraph of Article 340 TFEU, the applicant, Keserű Művek Fegyvergyár Kft., seeks compensation for the damage which it allegedly suffered as a result of the adoption of Commission Implementing Directive (EU) 2019/69 of 16 January 2019 laying down technical specifications for alarm and signal weapons under Council Directive 91/477/EEC on control of the acquisition and possession of weapons (OJ 2019 L 15, p. 22).

Background to the dispute

2The applicant is a company established in Hungary which manufactures and sells weapons. It states that it has, for the period from 7 August 2009 to 4 April 2029, exclusive rights for the manufacturing and marketing of a weapon model that is capable of shooting rubber bullets (‘the Keserű weapon’).

3On 16 January 2019, the European Commission adopted Implementing Directive 2019/69, the period for transposition of which by the Member States expired, in accordance with Article 4(1) thereof, on 17 January 2020.

4Hungary transposed Implementing Directive 2019/69 by, inter alia, 2020. évi XLIX. törvény egyes törvényeknek a fegyverek megszerzésének és tartásának ellenőrzésére vonatkozó európai uniós jogi szabályozás módosításával összefüggő jogharmonizációs célú módosításáról, Magyar Közlöny 2020. évi 137. száma (Law No XLIX of 2020 amending certain acts for the purpose of legal harmonisation in the context of the amendment of European Union legislation on control of the acquisition and possession of weapons), amending 2004. évi XXIV. törvény a lőfegyverekről és lőszerekről, Magyar Közlöny 2004. évi 56. száma (Law No XXIV of 2004 on firearms and ammunition), with effect from 1 January 2021, and by 326/2020. (VII. 1.) Korm. Rendelet a fegyverekről és lőszerekről szóló 253/2004. (VII. 31.) Korm. rendelet jogharmonizációs célú módosításáról, Magyar Közlöny 2020. évi 158. száma (Government Decree 326/2020 (VII. 1.) amending, for the purposes of legal harmonisation, Government Decree 253/2004. (VIII. 31.), on firearms and ammunition), which entered into force on 1 January 2023.

5By letter of 25 October 2022, the Országos Rendőr-főkapitányság (Hungarian Directorate-General of Police) informed the applicant of the new legislation applicable to ‘gas and alarm weapons’. The applicant inferred from this that it could no longer, as from 1 January 2023, sell the Keserű weapon to persons who did not have a firearm licence.

6Taking the view that Implementing Directive 2019/69 caused it damage, in so far as it had the effect of restricting the sale of the Keserű weapon only to persons in possession of a firearm licence, the applicant brought the present action.

Forms of order sought

7The applicant claims, in essence, that the Court should:– order the European Union to compensate it for the damage caused by the adoption of Implementing Directive 2019/69, estimated at EUR 1590088 for the period from 1 January 2023 to 4 April 2029;– order the Commission to pay the costs.

8The Commission, supported by the French Republic, contends that the Court should:– dismiss the action;– order the applicant to pay the costs.

Law

9In support of its action, the applicant claims, principally, compensation for the damage caused by the adoption of an unlawful act, namely Implementing Directive 2019/69, and, in the alternative, compensation for the damage caused by the adoption of that directive, even if the latter were lawful.

Liability of the European Union for the adoption of an unlawful act

10In order to establish the liability of the European Union, the applicant relies on an error based on the unlawfulness of Implementing Directive 2019/69 in that it infringes Articles 340 and 10 TFEU and Article 21 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

11The applicant claims, in essence, that, due to its technical characteristics, the Keserű weapon can shoot only rubber bullets, and not ‘real ammunition’, and that on account of its moulding, cannot be converted into a firearm. For those reasons, that weapon responds fully, on account of its mode of manufacture, to the purpose of Implementing Directive 2019/69, which seeks to protect people’s lives and to prevent the risk of homicide. By ignoring that specific nature of the Keserű weapon, Implementing Directive 2019/69 made it subject to the same legal rules as alarm and signal weapons which are capable of firing solid projectiles and thus belong to a different category of weapons, thereby infringing the prohibition of discrimination. According to the applicant, that directive should have provided for an exception for the type of weapons with characteristics similar to those of the Keserű weapon. Thus, by treating different situations in an identical manner, the Commission infringed Article 10 TFEU and Article 21 of the Charter as well as the prohibition of discrimination based, inter alia, on a ‘specific characteristic’.

12The applicant claims, in addition, that the Keserű weapon cannot be regarded as a ‘firearm’ within the meaning of Article 1(1)(1) of Directive (EU) 2021/555 of the European Parliament and of the Council of 24 March 2021 on control of the acquisition and possession of weapons (OJ 2021 L 115, p. 1), since that provision states that firearms excluded from that definition for one of the reasons listed in point III of Annex I to that directive do not fall within the definition of ‘firearm’. According to the applicant, the Keserű weapon satisfies the conditions laid down in point III(a) of Annex I to Directive 2021/555 and cannot, therefore, be classified as a ‘firearm’.

13The Commission and the French Republic contest those arguments.

14Pursuant to the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the European Union, in accordance with the general principles common to the laws of the Member States, is to make good any damage caused by its institutions or by its servants in the performance of their duties.

15According to settled case-law, the European Union may incur non-contractual liability only if a number of conditions are satisfied, namely the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals, the fact of damage and the existence of a causal link between the breach of the obligation resting on the author of the act and the damage sustained by the injured parties (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 32 and the case-law cited).

16If any one of the conditions mentioned in paragraph 15 above is not satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions for non-contractual liability on the part of the European Union. Nor is the EU judicature required to examine those conditions in any particular order (see, to that effect, judgments of 9 September 1999, Lucaccioni v Commission, C‑257/98 P, EU:C:1999:402, paragraphs 13 and 63, and of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 148).

17In the present case, it is appropriate to examine first the condition relating to the existence of a causal link between the allegedly unlawful act and the damage suffered.

18In that regard, according to settled case-law, that condition relates to the existence of a sufficiently direct causal nexus between the conduct of the EU institutions and the damage, the burden of proof of which rests on the applicant, so that the conduct complained of must be the determining cause of the damage (see, judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 32 and the case-law cited).

19More specifically, the damage must flow sufficiently directly from the unlawful conduct, which excludes, in particular, damage which is only a remote consequence of that conduct (judgment of 5 September 2019, European Union v Guardian Europe and Guardian Europe v European Union, C‑447/17 P and C‑479/17 P, EU:C:2019:672, paragraph 135, and order of 12 December 2007, Atlantic Container Line and Others v Commission, T‑113/04, not published, EU:T:2007:377, paragraph 40).

20In the present case, the applicant claims that Implementing Directive 2019/69 is unlawful, in that it fails to comply with the prohibition of discrimination laid down in Article 10 TFEU and Article 21 of the Charter, and that it has caused it damage in so far as it has had the consequence that, since 1 January 2023, the sale of the Keserű weapon is authorised only to persons in possession of a firearm licence.

21In that regard, it should be noted that the purpose of Implementing Directive 2019/69 is to lay down technical specifications relating to the marking of alarm and signal weapons under Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons (OJ 1991 L 256, p. 51), which was repealed by Directive 2021/555. In accordance with Article 26 of Directive 2021/555, any reference to Directive 91/477 is to be construed as a reference to Directive 2021/555. Thus, given that the damage allegedly suffered by the applicant concerns the period from 1 January 2023 to 4 April 2029, Directive 2021/555 is applicable ratione temporis to the present case.

22It is therefore necessary to ascertain whether a weapon with the characteristics of the Keserű weapon may be classified as an ‘alarm and signal weapon’ within the meaning of Directive 2021/555 and whether, therefore, Implementing Directive 2019/69, which, according to the applicant, is the cause of its damage, should have provided for an exception for the type of weapons with characteristics similar to those of the Keserű weapon.

23Under Article 1(1)(1) of Directive 2021/555, the concept of ‘firearm’ means ‘any portable barrelled weapon that expels, is designed to expel or may be converted to expel a shot, bullet or projectile by the action of a combustible propellant, unless it is excluded from this definition for one of the reasons listed in [point] III of Annex I’. According to this provision, firearms are classified under point II of Annex I. Furthermore, ‘an object shall be considered to be capable of being converted to expel a shot, bullet or projectile by the action of a combustible propellant if: (a) it has the appearance of a firearm; and (b) as a result of its construction or the material from which it is made, it can be so converted’.

24According to point III(a) of Annex I to Directive 2021/555, objects which correspond to that definition but which are designed for alarm, signalling, life-saving, animal slaughter or harpoon fishing or for industrial or technical purposes are not included in the definition of a ‘firearm’, provided that they can be used only for that specific purpose.

25The concept of ‘alarm and signal weapons’ is defined in Article 1(1)(4) of Directive 2021/555 as referring to ‘devices with a cartridge holder which are designed to fire only blanks, irritants, other active substances or pyrotechnic signalling rounds and which are not capable of being converted to expel a shot, bullet or projectile by the action of a combustible propellant’.

26In the present case, it is apparent from the documents before the Court, and from the applicant’s written pleadings, that the Keserű weapon is a weapon that is capable of shooting rubber bullets from a cylinder, which is equipped with a frame, a frame-integrated barrel, a cylinder with multiple chambers attached to the frame, a trigger fixed to the frame and a trigger-activated hammer, whose cylinder is designed to be loaded with rubber bullets by the front and with alarm or gas cartridges on the back and having one of the chambers of the cylinder at the barrel axis of the revolver at shooting time. As the Commission contends, without being contradicted by the applicant, that weapon uses a combustible propellant to expel rubber bullets.

27It follows that the Keserű weapon is a portable barrelled weapon which expels ‘bullets’, in this case rubber ones, by the action of a combustible propellant and that, therefore, it must be classified as a ‘firearm’ within the meaning of Article 1(1)(1) of Directive 2021/555.

28That finding is not called into question by the applicant’s arguments.

29First, the applicant’s argument that the Keserű weapon can expel only rubber bullets, and not ‘real’ bullets, must be rejected. The concept of a ‘firearm’ includes any weapon that expels ‘a shot, bullet or projectile’ by the action of a combustible propellant. In the present case, it cannot be maintained that the concept of ‘bullet’ within the meaning of Article 1(1)(1) of Directive 2021/555 does not cover rubber bullets, such as those expelled by the Keserű weapon.

30Secondly, the fact that the Keserű weapon cannot be converted to shoot ‘real’ bullets on account of its moulding is irrelevant, since the fact that that weapon is designed to shoot rubber bullets by the action of a combustible propellant is sufficient to classify it as a ‘firearm’, as has been pointed out in paragraph 29 above.

31Thirdly, as regards the applicant’s argument based on the hardness of rubber bullets used in the Keserű weapon and the maximum peak pressure when they are expelled, it must be stated that those characteristics, even if they were established, do not support the conclusion that that weapon is not a ‘firearm’ within the meaning of Article 1(1)(1) of Directive 2021/555, since it satisfies all the conditions laid down in that provision, as is apparent from paragraph 29 above, it being understood that no provision in Directive 2021/555 suggests that a rubber bullet should not be regarded as a ‘bullet’ within the meaning of Article 1(1)(1) of that directive on the basis of its hardness or peak pressure at the time of its expulsion.

32Fourthly, contrary to what the applicant claims, the Keserű weapon equally does not fall within the category of weapons referred to in point III(a) of Annex I to Directive 2021/555, which are not included in the definition of a ‘firearm’.

33In fact, the Keserű weapon is not designed for alarm or signalling purposes and therefore does not satisfy the condition that it may be used only for that specific use, as required by point III(a) of Annex I to Directive 2021/555.

34In that regard, according to Article 1(1)(4) of Directive 2021/555, ‘alarm and signal weapons’ are devices which, on the one hand, are designed to fire ‘only’ blanks, irritants, other active substances or pyrotechnic signalling rounds and, on the other hand, are not capable of being converted to expel a shot, bullet or projectile by the action of a combustible propellant.

35It is common ground that the Keserű weapon is not designed to fire ‘only’ blanks, irritants, other active substances or pyrotechnic signalling rounds, since it is designed, by the applicant’s own admission, to shoot rubber bullets, with the result that it does not satisfy the first condition above in order to be classified as an ‘alarm and signal weapon’.

36For the same reason, the Keserű weapon cannot be regarded as being designed for the purposes of alarm or signalling and as satisfying the condition that it may be used only for that specific use, within the meaning of point III(a) of Annex I to Directive 2021/555.

37Furthermore, the applicant itself describes its weapon as a ‘compressed-gas alarm weapon designed to shoot rubber bullets’. Thus, even assuming that the Keserű weapon was designed for the purposes of alarm, the fact remains that it can also shoot rubber bullets, and such use cannot be classified as use solely for the purposes of alarm.

38Fifthly, contrary to what the applicant claims, the fact that the Keserű weapon is designed as a non-lethal weapon is not a relevant criterion for determining whether it is a ‘firearm’ within the meaning of Directive 2021/555.

39Sixthly, the applicant submits that, by judgment No Kfv.VI.39.008/2011/4, of 24 October 2011, the Kúria (formerly the Legfelsőbb Bíróság) (Supreme Court, Hungary) held that the Keserű weapon was not a ‘firearm’ within the meaning of Article 1 of Directive 2021/555.

40Suffice it to note, in that regard, that the Court has exclusive jurisdiction over the definitive interpretation of EU law (see, to that effect, Opinion 2/13 of 18 December 2014, EU:C:2014:2454, paragraph 246, and Opinion 1/17 of 30 April 2019, EU:C:2019:341, paragraph 111), with the result that the EU judicature cannot be bound by the interpretation of EU law adopted by a national court.

41In addition, and in any event, it must be noted that the Kúria judgment referred to in paragraph 39 above dates back to 2011 and could not therefore take account of developments in the EU legal framework on control of the acquisition and possession of weapons after that date.

42It follows that the Keserű weapon cannot be categorised as an ‘alarm and signal weapon’ within the meaning of Directive 2021/555 and that, consequently, it does not fall within the scope of Implementing Directive 2019/69.

43Therefore, Implementing Directive 2019/69 could not have caused the damage alleged by the applicant.

44It must therefore be concluded that the condition relating to the existence of a causal link between the conduct complained of and the damage alleged is not satisfied.

45Consequently, the liability of the European Union cannot be incurred on that basis on account of an alleged unlawfulness vitiating Implementing Directive 2019/69.

Liability of the European Union for the adoption of a legal act

46The applicant seeks, in the alternative, compensation for the damage caused by the adoption of Implementing Directive 2019/69, even if the latter were lawful.

47Without there being any need to rule on the possibility of the European Union incurring liability for damage caused by a lawful act (see, to that effect, judgments of 25 March 2010, Sviluppo Italia Basilicata v Commission, C‑414/08 P, EU:C:2010:165, paragraph 141, and of 18 September 2014, Holcim (Romania) v Commission, T‑317/12, EU:T:2014:782, paragraph 235), suffice it to state that, in any event, such liability can be incurred only if three conditions, namely the reality of the damage allegedly suffered, the causal link between it and the act on the part of the EU institutions and the unusual and special nature of that damage, are all satisfied (judgment of 15 June 2000, Dorsch Consult v Council and Commission, C‑237/98 P, EU:C:2000:321, paragraph 19).

48For the same reasons as those set out in paragraphs 17 to 43 above, it must be held that the applicant has not demonstrated the existence of a causal link between Implementing Directive 2019/69 and the damage allegedly suffered.

49Therefore, the liability of the European Union cannot be incurred on that basis either.

50Consequently, the action must be dismissed in its entirety.

Costs

51Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the defendant.

52In accordance with Article 138(1) of the Rules of Procedure, Member States which have intervened in the proceedings are to bear their own costs. It follows that the French Republic must bear its own costs.

Operative part

On those grounds,THE GENERAL COURT (Eighth Chamber)hereby:

1.Dismisses the action;

2.Orders Keserű Művek Fegyvergyár Kft. to bear its own costs and to pay the costs incurred by the European Union, represented by the European Commission;

3.Orders the French Republic to bear its own costs.

Delivered in open court in Luxembourg on 23 October 2024.