International Legal Affairs: V9N6
New European Union Firearm Restrictions
After several rounds of firearm legislation throughout the early 2000s, the European Parliament passed new restrictions on firearm ownership on March 17, 2017, stated to be in response to the deadly Paris attack in November 2015. Using weapons that had (at one time) been deactivated, the terrorists were able to reconfigure and rebuild the deactivated firearms into functioning weapons. The European Parliament’s response was to create even more draconian restrictions on legal civilian firearm ownership.
Although firearm ownership has been restricted in most of Western Europe for many years, firearm ownership in Eastern Europe has been lightly regulated. As a result, the laws governing firearm ownership and possession were a mix of strict and lenient laws throughout the European Union. The new EU regulations are wide reaching, impact the entire European Union and have large ramifications on European civilian firearm ownership in the future. Under the new restrictions, there are added limitations on semi-automatic firearms and magazines, significant changes to the current firearm licensing regime, the creation of additional qualifications to own and possess a firearm and the imposition of additional marking and registration requirements.
Changes to the Current Firearm Licensing Regime
Under the current regime, there are four classes of firearms–Categories A through D. Under the new UE Firearms Directive, the biggest changes are to Categories A and D. Category D formerly governed single shot shotguns; this category was not subject to any Government scrutiny. Under the new EU Firearms Directive, Category D has been eliminated, and single-shot shotguns are re-classified to Category C, creating a regulatory scheme under which all firearms are subject to some form of Government regulation.
Under the new EU Firearms Directive, Category A (Prohibited Firearms) has been expanded. The new list of prohibited firearms in the EU includes:
Explosive military missiles and launchers;
Firearms disguised as other objects;
Ammunition and/or projectiles with penetrating, explosive, or incendiary properties;
Pistol and revolver ammunition and/or projectiles that expand, except in the case of hunting ammunition;
Automatic firearms converted to semiautomatic function
Centerfire semi-automatic pistols that allow more than 21 rounds, or rifles that allow more than 11 rounds of ammunition per magazine;
Short semi-automatic rifles that may be shortened to a length less than 60 centimeters (approximately 23.6 inches) in length through the use of a collapsible or folding stock.
There are two immediate issues with the new regulations. First, in some EU countries, civilian ownership of fully automatic firearms was expressly allowed. Under the new regulatory scheme, (with few exceptions) the transfer of fully automatic firearms lawfully possessed by a civilian after January 1, 2018, becomes illegal. Current owners of fully automatic firearms in the EU may either sell them to a qualified individual, or museum or have the firearm deactivated. As many collectors have spent large sums of money on their collections, the idea of deactivating a collectible firearm is not appealing.
Second, the new regulations do not specifically prohibit modern sporting rifles similar to the AR-15, but does create a situation in which an AR-15 type firearm must be heavily modified in order to remain compliant.
Semi-automatic Firearms and Magazines
Under the new EU Firearms Directive, the general consensus is that an individual is still permitted to possess a modern sporting rifle (like the AR-15 rifle), as long as the rifle is possessed in conjunction with a magazine that has a 10-round capacity or less. However, under a strict reading of the directive, that may not be entirely accurate. The Directive reads:
Semi-automatic long firearms … whose loading device and chamber cannot together hold more than three rounds, where the loading device is detachable or where it is not certain that the weapon cannot be converted, with ordinary tools, into a weapon whose loading device and chamber can together hold more than three rounds.
In order to remain legal, it appears that an AR-15 type rifle would need to be converted to only accept a special magazine that holds three rounds or less. An AR-15 rifle that could accept a standard magazine would appear to be subject to Category A classification, as a standard AR-15 rifle may be “readily converted” into accepting a magazine with a capacity of more than 10 rounds. Time will tell how this aspect of the Directive is upheld and interpreted.
Additional Qualifications to Own and Possess a Firearm
The EU Firearms Directive requires that EU member nations create a licensing system by which firearm owners are “authorized” to possess firearms. The Directive directs member nations to create “a monitoring system, which they may operate on a continuous or non-continuous basis, to ensure that the conditions of authorisation set by national law are met throughout the duration of the authorisation,” and further requires that “[w]here any of the conditions of authorisation [are] no longer met, Member States shall withdraw the respective authorisation.” Moreover, Member States have to ensure that in the authorization process “relevant medical and psychological information [are] assessed.” Member States are required to review authorizations for the possession of firearms, at minimum, once every 5 years.
What does this mean? Currently, it appears that sport shooters who seek to acquire and possess a semi-automatic firearm must undergo a medical and psychological exam, must provide proof of participation in a recognized shooting competition and must provide proof of membership in an officially recognized shooting sports organization with active participation within the past 12 months. Upon completion of the process, presumably authorization would be granted, subject to renewal within 5 years.
Additional Marking and Registration Requirements
The EU Firearms Directive creates significant new requirements for the marking of firearms. Currently, barrels and bolts are restricted, with little oversight into the sale and possession of frames, receivers or other parts. Under the new requirement, any “essential component,” to include “frames, upper and lower receivers, slides, cylinders, barrels, bolts and breech blocks,” must be marked in a clear, permanent and unique marking.
EU member nations are also required to create a national firearms database that “shall record all information relating to firearms which is needed in order to trace and identify those firearms.” In addition, individual EU member nations are required to “ensure that the record of firearms and the essential components, including the related personal data, is retained in the data-filing systems by the competent authorities for a period of 30 years after the destruction of the firearms or essential components in question.”
There are a few exemptions to the new Directive. The largest exemption probably applies to Switzerland and the exemption for Swiss Army reservists, who often possess their battle rifles outside of Army duty. Under the Swiss exemption, Swiss military members may keep their service rifles if the rifle has been converted to semi-automatic fire. Service pistols may also be possessed but are subject to the 10-round magazine restrictions.
There are also limited exemptions for museums, collectors and dealers to possess prohibited Category A firearms.
Challenges by the Czech Republic
On August 9, 2017, the Czech government challenged the implementation of the EU Firearms Directive, requesting the suspension of the national implementation for the duration of the legal action and complete dismissal of the firearms Directive. According to Czech Interior Minister Milan Chovanec, “[s]uch a massive punishment of decent arms holders is unacceptable, because banning legally-held weapons has no connection with the fight against terrorism. This is not only a nonsensical decision once again undermining people’s trust in the EU, but implementing the Directive could also have a negative impact on the internal security of the Czech Republic, because a large number of weapons could move to the black market.”
What does the future hold? It seems unlikely that terrorism throughout the European Union will abate, and restricting access to firearms has seemingly resulted in new forms of terror involving large vehicles and use of ordinary items as weapons in non-traditional means. The new restrictions probably seem fool hardy to most Americans and likely to many Europeans as well. Time will tell whether the good intentions of the legislation have an effect on gun violence in Europe.
Looking forward, those in the United States (and by default, other countries that allow civilian ownership of firearms) should expect increased difficultly in sourcing European-made firearms and/or increased costs for European-made firearms. As the United States is the largest single market for civilian-owned firearms, it is not surprising that the likes of Fabrique Nationale, Heckler and Koch and SIG SAUER have established manufacturing facilities within the United States, potentially in part to escape European regulations on manufacturing and export.
Mr. Wong is a Washington-licensed attorney. He regularly provides legal counsel to the firearm and defense industry via his law firm, The Firearms Law Group. Mr. Wong also manages Hurricane Butterfly, an import/export company that assists firearm manufacturers, resellers and collectors from around the world to wade through the regulatory quagmire of U.S. import/export regulations. He may be found online at FirearmsLawGroup.com.