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Schmidberger [2003]
June 5, 2007 |
In the Schmidberger case the Austrian government granted permission for the Brenner motorway to be closed in order to allow a demonstration against the levels of pollution to the Alps caused by the heavy traffic on the motorway. Schmidberger was a German company that transported goods. It argued that the closure of the Brenner Pass interfered with the free movement of goods as he was unable to use his heavy goods vehicles to transport goods from Germany through Austria and in to Italy.
The ECJ recognized that the closure of the Brenner Pass did restrict the free movement of goods and then considered whether the restriction of the free movement of goods could be justified due to the concerns of the Austrian Government to protect the right of freedom of expression and freedom of assembly. The ECJ engaged in an analysis of the relation between Articles 10 and 11 of the ECHR (freedom of expression and freedom of assembly) on one hand and the free movement of goods expressed by the EC Treaty on the other hand.
After a careful deliberation, the ECJ held that the restriction on the free movement of goods was justified and that the national authorities had been entitled to authorize the demonstration.
Certain conclusions can be drawn from the ECJ’s approach in this case.
The first conclusion is that this is the first case in which respect for and protection of fundamental rights has been used by a Member State as a justification for a restriction on a fundamental freedom.
Secondly, the Schmidberger case clearly demonstrates that the Community courts do not always protect fundamental freedoms to the detriment of fundamental rights. It is probably the first time that the ECJ accepted the supremacy of another source of law over the EC law.
It might be added that the ECJ has consistently insisted that exceptions to a fundamental freedom must be interpreted narrowly. If a Member State has a choice between several measures for achieving the same aim, it should choose the means which least restricts the fundamental freedoms. Even if the Advocate General Jacobs pleaded for considering fundamental rights as a justification on ground of public policy, the ECJ rejected the proposal. Instead it recognized the fundamental rights as a distinct ground of justification for imposing restrictions on the fundamental freedoms.
Text of the ECJ judgment
Text of the AG opinion
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