Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich.

• Jurisdiction: European Union
• Celex Number: 62000CJ0112
• ECLI: ECLI:EU:C:2003:333
• Date: 12 June 2003
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-112/00

Case C-112/00


Eugen Schmidberger, Internationale Transporte und Planzüge
v
Republik Österreich


(Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria))

«(Free movement of goods – Restriction resulting from actions of individuals – Obligations of the Member States – Decision not to prohibit a demonstration by environmental protesters which resulted in the complete closure of the Brenner motorway for almost 30 hours – Justification – Fundamental rights – Freedom of expression and freedom of assembly – Principle of proportionality)»

Opinion of Advocate General Jacobs delivered on 11 July 2002

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Judgment of the Court, 12 June 2003

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Summary of the Judgment

1..

Free movement of goods – Trade barriers resulting from actions by private individuals – Obligations of the Member States – Adoption of measures to ensure the free movement of goods – Scope of the obligation – Acts affecting the flow of imports and exports and merely transit

(EC Treaty, Art. 5 (now Art. 10 EC) and Arts 30 and 34 (now, after amendment, Arts 28 EC and 29 EC)

2..

Free movement of goods – Barriers to free movement by road between Member States resulting from the decision of a Member State not to prohibit a demonstration by protesters – Justification – Protection of the fundamental rights of the protesters – Need to balance the interests at stake – Principle of proportionality – Discretion of the national authorities – Limits

(EC Treaty, Art. 5 (now Art. 10 EC) and Arts 30, 34 and 36 (now, after amendment, Arts 28 EC, 29 EC and 30 EC)

1.

Having regard to the fundamental role assigned to the free movement of goods in the Community system, in particular for the proper functioning of the internal market, the obligation upon each Member State to ensure the free movement of goods in its territory by taking the measures necessary and appropriate for the purposes of preventing any restriction due to the acts of individuals applies without the need to distinguish between cases where such acts affect the flow of imports or exports and those affecting merely the transit of goods. see para. 60

2.

The fact that the competent authorities of a Member State did not ban a demonstration by protesters which resulted in the complete closure of a major transit route between Member States for a given period is not incompatible with Articles 30 and 34 of the Treaty (now, after amendment, Articles 28 EC and 29 EC), read together with Article 5 of the Treaty (now AArticle 10 EC) provided that that restriction of trade in goods between Member States is justified by the legitimate interest in the protection of fundamental rights, in this case the protesters' freedom of expression and freedom of assembly, which applies both to the Community and the Member States. In considering that justification, the interests involved must be weighed, namely the free movement of goods which may, in certain circumstances, be subject to restrictions for the reasons laid down in Article 36 of the Treaty (now, after amendment, Article 30 EC) or for overriding requirements relating to the public interest, on the one hand, and the freedom of expression and freedom of assembly, which are also subject to certain limitations justified by objectives in the public interest, on the other, having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests. It is true that the national authorities enjoy a wide margin of discretion in that regard, but it is for the Court to determine whether the restrictions placed upon intra-Community trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, the protection of fundamental rights. Whilst a demonstration on a public highway usually entails inconvenience for non-participants, in particular as regards free movement, that inconvenience may in principle be tolerated provided that the objective pursued is the public and lawful demonstration of an opinion. see paras 64 , 69, 74, 78-82, 91, 94, operative part

JUDGMENT OF THE COURT
12 June 2003 (1)

((Free movement of goods – Restriction resulting from actions of individuals – Obligations of the Member States – Decision not to prohibit a demonstration by environmental protesters which resulted in the complete closure of the Brenner motorway for almost 30 hours – Justification – Fundamental rights – Freedom of expression and freedom of assembly – Principle of proportionality))

In Case C-112/00, REFERENCE to the Court under Article 234 EC by the Oberlandesgericht Innsbruck (Austria) for a preliminary ruling in the proceedings pending before that court between Eugen Schmidberger, Internationale Transporte und Planzüge

and

Republik Österreich, on the interpretation of Articles 30, 34 and 36 of the EC Treaty (now, after amendment, Articles 28 EC, 29 EC and 30 EC) read together with Article 5 of the EC Treaty (now Article 10 EC), and on the conditions for liability of a Member State for damage caused to individuals by a breach of Community law,

THE COURT,,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet and R. Schintgen (Rapporteur) (Presidents of Chambers), C. Gulmann, D.A.O. Edward, P. Jann, V. Skouris, F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges, Advocate General: F.G. Jacobs,
Registrar: H.A. Rühl (Principal Administrator),

after considering the written observations submitted on behalf of:

─

Eugen Schmidberger, Internationale Transporte und Planzüge, by K.-H. Plankel, H. Mayrhofer and R. Schneider, Rechtsanwälte,

─

the Republic of Austria, by A. Riccabona, acting as Agent,

─

the Austrian Government, by H. Dossi, acting as Agent,

─

the Greek Government, by N. Dafniou and G. Karipsiadis, acting as Agents,

─

the Italian Government, by U. Leanza, acting as Agent, assisted by O. Fiumara, vice avvocato generale dello Stato,

─

the Netherlands Government, by M.A. Fierstra, acting as Agent,

─

the Commission of the European Communities, by J.C. Schieferer, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Eugen Schmidberger, Internationale Transporte und Planzüge, represented by R. Schneider; the Republic of Austria, represented by A. Riccabona; the Austrian Government, represented by E. Riedl, acting as Agent; the Greek Government, represented by N. Dafniou and G. Karipsiadis; the Italian Government, represented by O. Fiumara; the Netherlands Government, represented by H.G. Sevenster, acting as Agent; the Finnish Government, represented by T. Pynnä, acting as Agent; and the Commission, represented by J.C. Schieferer and J. Grunwald, acting as Agent, at the hearing on 12 March 2002,

after hearing the Opinion of the Advocate General at the sitting on 11 July 2002,

gives the following

Judgment

1

By order of 1 February 2000, received at the Court on 24 March 2000, the Oberlandesgericht Innsbruck (Innsbruck Higher Regional Court) referred under Article 234 EC six questions for a preliminary ruling on the interpretation of Articles 30, 34 and 36 of the EC Treaty (now, after amendment, Articles 28 EC, 29 EC and 30 EC) read together with Article 5 of the EC Treaty (now Article 10 EC), and on the conditions for liability of a Member State for damage caused to individuals by a breach of Community law.

2

Those questions were raised in proceedings between Eugen Schmidberger, Internationale Transporte und Planzüge ( Schmidberger) and the Republic of Austria concerning the permission implicitly granted by the competent authorities of that Member State to an environmental group to organise a demonstration on the Brenner motorway, the effect of which was to completely close that motorway to traffic for almost 30 hours.

National law

3

Paragraph 2 of the Versammlungsgesetz (Law on assembly) of 1953, as subsequently amended ( VslgG) provides:

(1)

A person desirous of arranging a popular meeting or any meeting accessible to the public and not limited to invited guests must give written notice thereof to the authority (Paragraph 16) at least 24 hours in advance of the proposed event, stating the purpose, place and time of the meeting. The notice must reach the authority at least 24 hours before the time of the proposed meeting.

(2)

On demand the authority shall forthwith issue a certificate concerning the notice ... .

4

Paragraph 6 of the VslgG provides: Meetings whose purpose runs counter to the criminal law or which, if held, are likely to endanger public order or the common weal are to be banned by the authorities.

5

Paragraph 16 of the VslgG provides: For the purposes of the present law, the usual meaning of the authority is:

(a)

in places within their competence, the Federal Police;

(b)

in the place where the Landeshauptmann [head of government of the Land] has his seat of government, where there is no Federal Police presence, the Sicherheitsdirektion [the security services]; ...

(c)

in all other places, the Bezirksverwaltungsbehörde [district administrative authority] .

6

Paragraph 42(1) of the Straßenverkehrsordnung (Highway Code) of 1960, as subsequently amended ( the StVO), prohibits the transport by road of heavy goods trailers on Saturdays from 15.00 hrs to midnight and on Sundays and bank holidays from midnight to 22.00 hrs where the maximum permitted total weight of the heavy goods vehicle or of the trailer exceeds 3.5 tonnes. Further, according to Paragraph 42(2), during the periods stated in Paragraph 42(1) the movement of...