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

DOIhttp://doi.org/10.1111/j.1468-0386.2006.00305.x
Date01 January 2006
AuthorJohn Morijn
Published date01 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

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