Shooting Schengen?

Miriam Tiefenbacher – The European Union has committed itself to tackling the uncontrolled gun trade across the Continent – an undesired side effect of the abolition of internal borders. It is currently implementing an amendment to the Weapons Directive. As a Member State of Schengen, Switzerland needs to adopt these changes in order not to compromise its Schengen collaboration. If a referendum is held, voters will have to balance the interests of certain arms holders against the benefits of the Schengen Agreement.

The EU’s single market led to new opportunities for consumers and businesses; however, the absence of border controls also enabled the free movement of firearms to thrive. In order to inhibit illegal gun trade, the EU amended the existing Directive on the control of the acquisition and possession of weapons on 17th May 2017. As it forms part of the Schengen Association Agreement, Switzerland was formally notified of this development pursuant to the corresponding procedure. The limited content of the legislation does not come as a surprise, as Switzerland has actively raised awareness on Swiss shooting traditions as a participant in the negotiation. One success for Switzerland is the explicit concession that members of the army can obtain ownership of their rifle after they have completed their military service, even though no provision related to utilisation has been introduced. Furthermore, mandatory medical and psychological checks for firearm owners every five years, as proposed by the EU, have been rejected.

On 2nd March 2018, after consulting interest groups and cantons, the Swiss government submitted its dispatch on the implementation of the EU Directive to the Parliament. Current national provisions are maintained as far as possible. The establishment of a centralized weapons register is, for instance, not required. Yet, certain minimum standards of the EU Directive, which Swiss law does not yet comply with, have to be incorporated. One novelty is the prohibition of semi-automatic rifles, with an exemption if a specific need can be proved. The exemption conditions are now exhaustively enumerated. Yet, the legal position regarding regularly practicing sports marksmen, hunters and collectors complying with safety regulations remains unchanged. Finally, the information exchange between Switzerland and the EU is extended to cases of authorisation refusals for firearms on the basis of security concerns related to a person’s reliability.

The time limit to conclude all domestic procedures is 31st May 2019. Due to a high degree of organization, local shooting associations are likely to trigger a referendum vote. Opponents criticise inter alia the insufficient precision of the draft legislation. Furthermore, existing ownership of semi-automatic weapons is now to be registered – a requirement rejected by the people in a 2011 initiative. Another concern is the potentially considerable differences in the authorisation practices of the competent cantons.

If voters decide against the legislative changes, the Schengen Agreement with the EU will be terminated, except if the Mixed Committee, a joint Swiss-EU body, decides otherwise within 90 days. In the absence of an EU-Swiss framework agreement providing for dispute settlement, there is no possibility to discuss precise points if the EU’s legislative changes are not implemented.

The chances of finding a solution considered acceptable by all 27 EU Member States in such a short timeframe appear rather slim. It must also be noted that the Czech Republic has challenged the Directive before the EU Court of Justice. One of its legal arguments is an alleged violation of the principle of non-discrimination, since the proposed provision allowing members of the army to obtain ownership of their rifle upon completion of their military service only applies to Switzerland. This suggests that re-negotiating the EU weapons legislation will open up a Pandora’s box; yet, more concessions being granted to Swiss shooting associations seems doubtful.

Thus, Swiss voters will potentially have to assess the weight of opposing arguments in the weapons issue. However, there is a threat that the EU may use it as leverage in the negotiation of other open dossiers, such as electricity or police cooperation. The jeopardising of the Schengen agreement by a popular vote is not a new phenomenon. In 2009, scepticism was expressed toward the introduction of biometric passports and, in particular, the establishment of a central registry storing the chip data. In the referendum vote at the time, an extremely narrow majority of 50.1 percent of Swiss voters approved this development of the Schengen acquis. It remains to be seen if the arms proponents’ arguments now seem more convincing to the Swiss sovereign.

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Miriam Tiefenbacher

Master Student in European Law at the College of Europe in Bruges

miriam.tiefenbacher@coleurope.eu