Balancing Fundamental Rights and Common Market Freedoms in Union Law: Schmidberger and Omega in the Light of the European Constitution

• DOI: http://doi.org/10.1111/j.1468-0386.2006.00305.x
• Date: 01 January 2006
• Published date: 01 January 2006

Balancing Fundamental Rights and

Common Market Freedoms in Union Law:

Schmidberger and Omega in the Light of

the European Constitution

John Morijn*

Abstract: This article deals with how the Court of Justice balances fundamental rights pro-

tection and Common Market freedoms.From the particular perspective of the Charter and

the ECHR, whose legal status will be upgraded upon entry into force of the European Con-

stitution, it studies the Court of Justice’s approach to fundamental rights invocations by

Member States in the context of Common Market freedoms. For this purpose the judg-

ments in Schmidberger and Omega will be discussed both in the current setting and that

envisioned by the European Constitution.It will emerge that the Court of Justice’s reason-

ing in Schmidberger and Omega can be criticised on different levels, and alternative

approaches are proposed. At a later stage some further elements for ref‌ining the method-

ology for assessing Member States’ fundamental rights invocations are addressed with a

view to facilitating the Court of Justice more satisfactorily to take account of the current

and likely future setting of fundamental rights protection in Union law.

I Introduction

In Schmidberger1and Omega2the Court of Justice developed a Union

law3approach to deal with Member States’ invocation of fundamental

European Law Journal, Vol.12, No. 1, January 2006, pp. 15–40.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*PhD Researcher, European University Institute Law Department, Florence, Italy. For discussions and

critical comments on various previous versions of this article I would like to express my thanks to

Professor Francesco Francioni,Professor Ernst-Ulrich Petersmann, Professor Bruno De Witte, Professor

Jaap W. De Zwaan, Christopher Brown, Alberto Alemanno, James Harrison, Maria Arcelina Pimentel

Biscaia, Felix Ronkes Agerbeek, Julio Baquero Cruz, Cormac Mac Amhlaigh, the participants of the Åbo

Akademi Advanced Course on the Protection of International Human Rights in Turku,Finland (August

2004), and the participants of the seminar on ‘Theories of justice,human rights and international economic

law:WTO, EU, and NAFTA law and jurisprudence’in Florence,Italy (Spring 2005). I am also particularly

grateful for comments by the anonymous reviewers of this Journal. All errors remain mine.

1Case C-112/00 Eugen Schmidberger Internationale Transporte und Planzüge v Republic of Austria [2003]

ECR I-5659 (‘Schmidberger Judgment’).

2Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der

Bundesstadt Bonn,14 October 2004, not yet reported (‘Omega Judgment’).

3The terminology of ‘Union law’ is used in the sense laid down in Article I-6 of the Treaty Establishing

a Constitution for Europe ([2004] OJ C 310/01 16/12/2004) to encapsulate the current notions of both

EC law and EU law.

rights4as laid down in their national constitutions for the purpose of derogating from

the common market freedoms of the European Community. The way in which the Court

of Justice deals with this matter is of great importance, particularly since fundamental

rights protection ‘is the imperative and the objective that both the Union and its

Member States are bound to pursue’.5The methodology by which fundamental rights

and common market freedoms are balanced in Union law therefore goes to the core of

how fundamental rights are valued6within the f‌ield of application of Union law.

In parallel to the development of an approach to such fundamental rights invoca-

tions the Treaty Establishing a Constitution for Europe (TECE) has been adopted and

is awaiting ratif‌ication by the Member States. In particular, Article I-9 contains some

signif‌icant changes for fundamental rights protection within Union law. By way of

Article I-9(1) the Charter of Fundamental Rights (Charter) is given the status of

binding primary Union law. The Charter itself is integrated in its entirety in the

Constitution (Articles II-61 to II-114). Article I-9(2) TECE requires the Union to

accede to the European Convention for the Protection of Human Rights and

Fundamental Freedoms (ECHR). These two developments arguably represent an

important shift away from the conception of fundamental rights solely constituting a

part of the general principles of Union law (as currently laid down in Article 6(2) TEU,

and copied in Article I-9(3)) to one that also posits fundamental rights as individual

rights.

The underlying premise of this article is that this is to be understood as a coming

sea-change in Union law, a qualitative leap. By relying more explicitly on the by-then

binding Charter and ECHR, Union citizens will be empowered more transparently to

invoke their rights with regard to the various European institutions, bodies, and agen-

cies, as well as the Member States in their role of agents when implementing Union

law. The Court of Justice will similarly have to address fundamental rights more openly

and in a more detailed manner. It is therefore likely that, assuming that the European

Constitution will enter into force in its current form (or, in the event that the European

Constitution is not be ratif‌ied by one of the Member States and an alternative is nego-

tiated, assuming that the provisions relating to fundamental rights protection remain

unchanged), fundamental rights’ dual conception as both individual rights and general

principles will inf‌luence the Court of Justice’s interpretational methodology for dealing

with fundamental rights.

Schmidberger and Omega have already attracted considerable scholarly attention

from Union law specialists7as it is clearly only the beginning of a new line of

European Law Journal Volume 12

16 © 2006 The Author

Journal compilation © Blackwell Publishing Ltd. 2006

4The terminology of ‘fundamental rights’ is used to embrace fundamental human rights and fundamen-

tal human freedoms (i.e. civil, cultural, economic, social, and political human rights). With regard to the

expression ‘fundamental freedoms’ as used in this article it will be clarif‌ied whether fundamental human

freedoms or common market freedoms (free movement of goods, services, capital etc.) are meant.

5M. Avbelj, ‘The European Court of Justice and the question of value choices—fundamental human

rights as an exception to the freedom of movement of goods’, Jean Monnet Paper n. 6/04, available at

http://www.jeanmonnetprogram.org/ (at 62).

6Cf. N. Nic Shuibhne, ‘The Value of Fundamental Rights’, in M. Aziz and S. Millns (eds), Values in the

European Constitution (Dartmouth, 2005) (forthcoming).

7C. Brown, ‘Case-note: Schmidberger’(2003) 40 CMLR 6 1499;A. Alemanno, ‘À la recherche d’un juste

équilibre ente libertés fondamentales et droits fondamentaux dans le cadre du marché intérieur—

Quelques réf‌lexions à propos des arrêts Schmidberger et Omega’(2004) 4 Revue du Droit de l’Union

européenne 709; F. Ronkes Agerbeek, ‘Freedom of Expression and Free Movement in the Brenner