Grounds of the 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 heavy goods vehicles, articulated lorries and
rigid-chassis lorries having a maximum permitted total weight
in excess of 7.5 tonnes is prohibited. Certain exceptions are
permitted, in particular for the transport of milk, perishable
foodstuffs or animals for slaughter (except for the transport
of cattle on motorways).
7 Under Paragraph 42(6) of the
StVO, the movement of heavy goods vehicles having a maximum
permitted total weight in excess of 7.5 tonnes is prohibited
between 22.00 hrs and 05.00 hrs. The journeys made by vehicles
emitting noise below a certain level are not affected by that
prohibition.
8 Pursuant to Paragraph 45(2) et seq. of the
StVO, derogations in respect of road use may be granted in
respect of individual applications and subject to certain
conditions.
9 Paragraph 86 of the StVO provides:
`Marches. Unless provided otherwise, where it is intended
to use a road for outdoor meetings, public or customary
marches, local fêtes, parades or other such assemblies, these
must be declared in advance by their organisers to the
authority ...'.
The main proceedings and the questions
referred for a preliminary ruling
10 According to the file
in the main proceedings, on 15 May 1998 the Transitforum
Austria Tirol, an association `to protect the biosphere in the
Alpine region', gave notice to the Bezirkshauptmannschaft
Innsbruck (Innsbruck provincial government) under Paragraph 2
of the VslgG and Paragraph 86 of the StVO of a demonstration
to be held from 11.00 hrs on Friday 12 June 1998 to 15.00 hrs
on Saturday 13 June 1998 on the Brenner motorway (A13),
resulting in that motorway being closed to all traffic on the
section from the Europabrücke service area to the Schönberg
toll station (Austria).
11 On the same day, the chairman
of that association gave a press conference following which
the Austrian and German media disseminated information
concerning the closure of the Brenner motorway. The German and
Austrian motoring organisations were also notified and they
too offered practical information to motorists, advising them
in particular to avoid that motorway during the period in
question.
12 On 21 May 1998, the Bezirkshauptmannschaft
requested the Sicherheitsdirektion für Tirol (Directorate of
security for Tyrol) to provide instructions concerning the
proposed demonstration. On 3 June 1998, the
Sicherheitsdirektor issued an order that it was not to be
banned. On 10 June 1998, there was a meeting of members of
various local authorities in order to ensure that the
demonstration would be free of trouble.
13 Considering
that that demonstration was lawful as a matter of Austrian
law, the Bezirkshauptmannschaft decided not to ban it, but it
did not consider whether its decision might infringe Community
law.
14 The demonstration took place at the stated place
and time. Consequently, heavy goods vehicles which should have
used the Brenner motorway were immobilised from 09.00 hrs on
Friday 12 June 1998. The motorway was reopened to traffic on
Saturday 13 June 1998 at approximately 15.30 hrs, subject to
the prohibition on the movement of lorries in excess of 7.5
tonnes during certain hours on Saturdays and Sundays
applicable under Austrian legislation.
15 Schmidberger is
an international transport undertaking based at Rot an der Rot
(Germany) which operates six articulated heavy goods vehicles
with `reduced noise and soot emission'. Its main activity is
the transport of timber from Germany to Italy and steel from
Italy to Germany. Its vehicles generally use the Brenner
motorway for that purpose.
16 Schmidberger brought an
action before the Landesgericht Innsbruck (Innsbruck Regional
Court) (Austria) seeking damages of ATS 140 000 against the
Republic of Austria on the basis that five of its lorries were
unable to use the Brenner motorway for four consecutive days
because, first, Thursday 11 June 1998 was a bank holiday in
Austria, whilst 13 and 14 June 1998 were a Saturday and
Sunday, and second, the Austrian legislation prohibits the
movement of lorries in excess of 7.5 tonnes most of the time
at weekends and on bank holidays. That motorway is the sole
transit route for its vehicles between Germany and Italy. The
failure on the part of the Austrian authorities to ban the
demonstration and to intervene to prevent that trunk route
from being closed amounted to a restriction of the free
movement of goods. Since it could not be justified by the
protesters' right to freedom of expression and freedom of
assembly the restriction was a breach of Community law in
respect of which the Member State concerned incurred
liability. In the present case, the damage suffered by
Schmidberger consisted of the immobilisation of its heavy
goods vehicles (ATS 50 000), the fixed costs in respect of the
drivers (ATS 5 000) and a loss of profit arising from
concessions on payment allowed to customers on account of the
substantial delays in transporting the goods and the failure
to make six journeys between Germany and Italy (ATS 85 000).
17 The Republic of Austria contended that the claim should
be rejected on the grounds that the decision not to ban the
demonstration was taken following a detailed examination of
the facts, that information as to the date of the closure of
the Brenner motorway had been announced in advance in Austria,
Germany and Italy, and that the demonstration did not result
in substantial traffic jams or other incidents. The
restriction on free movement arising from a demonstration is
permitted provided that the obstacle it creates is neither
permanent nor serious. Assessment of the interests involved
should lean in favour of the freedoms of expression and
assembly, since fundamental rights are inviolable in a
democratic society.
18 Having found that Schmidberger had
not shown either that its lorries would have had to use the
Brenner motorway on 12 and 13 June 1998 or that it had not
been possible, after it had become aware that the
demonstration was due to take place, to change its routes in
order to avoid loss, the Landesgericht Innsbruck dismissed the
action by judgment of 23 September 1999 on the grounds that
the transport company had neither discharged the burden (under
Austrian substantive law) of making out and proving its claim
for pecuniary loss nor complied with its obligation (under
Austrian procedural law) to present all the facts on which the
application was based and which were necessary for the dispute
to be determined.
19 Schmidberger then lodged an appeal
against that judgment before the Oberlandesgericht Innsbruck,
which considers that it is necessary to have regard to the
requirements of Community law where, as in the present case,
claims are made which are, at least in part, founded on
Community law.
20 It considers that it is necessary in
that regard to determine first whether the principle of the
free movement of goods, possibly in conjunction with Article 5
of the Treaty, requires a Member State to keep open major
transit routes and whether that obligation takes precedence
over fundamental rights such as the freedom of expression and
the freedom of assembly guaranteed by Articles 10 and 11 of
the European Convention for the Protection of Human Rights and
Fundamental Freedoms (`ECHR').
21 If so, the national
court asks, secondly, whether the breach of Community law thus
established is sufficiently serious to give rise to State
liability. Questions of interpretation arise in particular in
determining the degree of precision and clarity of Article 5
as well as Articles 30, 34 and 36 of the Treaty.
22 In the
present case State liability might be incurred as a result of
either legislative defect - the Austrian legislature having
failed to adapt the legislation on freedom of assembly to
comply with the obligations arising under Community law, in
particular under the principle of the free movement of goods -
or by reason of administrative fault - the competent national
authorities being required by the obligation of cooperation
and loyalty laid down by Article 5 of the Treaty to interpret
national law in such a way as to comply with the requirements
of that Treaty as regards the free movement of goods, in so
far as those obligations arising from Community law are
directly applicable.
23 Thirdly, the court seeks guidance
as to the nature and extent of the right to compensation based
on State liability. It asks how stringent are the requirements
as to proof of the cause and amount of the damage occasioned
by a breach of Community law resulting from legislation or
administrative action and wishes to know, in particular,
whether a right to compensation also exists where the amount
of the damage can only be assessed by general estimate.
24
Lastly, the referring court harbours doubts as to the national
requirements for establishing a right to compensation based on
State liability. It asks whether the Austrian rules on the
burden and standard of proof and on the obligation to submit
all facts necessary for the determination of the dispute
comply with the principle of legal effectiveness, in so far as
the rights based on Community law cannot always be defined ab
initio in their entirety and the applicant faces genuine
difficulty in stating correctly all the facts required under
Austrian law. Thus, in the present case, the content of the
right to compensation based on State liability is so unclear,
as regards its nature and extent, as to make a reference for a
preliminary ruling necessary. The reasoning of the court
ruling at first instance is likely to curtail claims based on
Community law by rejecting the application on the basis of
principles of national law and circumventing on purely formal
grounds relevant questions of Community law.
25
Considering that the resolution of the dispute thus required
an interpretation of Community law, the Oberlandesgericht
Innsbruck decided to stay proceedings and refer the following
questions to the Court for a preliminary ruling:
`1. Are
the principles of the free movement of goods under Article 30
et seq. of the EC Treaty (now Article 28 et seq. EC), or other
provisions of Community law, to be interpreted as meaning that
a Member State is obliged, either absolutely or at least as
far as reasonably possible, to keep major transit routes clear
of all restrictions and impediments, inter alia, by requiring
that a political demonstration to be held on a transit route,
of which notice has been given, may not be authorised or must
at least be later dispersed, if or as soon as it can also be
held at a place away from the transit route with a comparable
effect on public awareness?
2. Where, on account of the
failure by a Member State to indicate in its national
provisions on freedom of assembly and the right to exercise it
that, in the weighing of freedom of assembly against the
public interest, the principles of Community law, primarily
the fundamental freedoms and, in this particular case, the
provisions on the free movement of goods, are also to be
observed, a political demonstration of 28 hours' duration is
authorised and held which, in conjunction with a pre-existing
national generally applicable ban on holiday driving, causes
an essential intra-Community goods transit route to be closed,
inter alia, to the majority of heavy goods traffic for four
days, with a short interruption of a few hours, does that
failure constitute a sufficiently serious infringement of
Community law in order to establish liability on the part of
the Member State under the principles of Community law,
provided that the other requirements for such liability are
met?
3. Where a national authority decides that there is
nothing in the provisions of Community law, in particular
those concerning the free movement of goods and the general
duty of cooperation and solidarity under Article 5 of the EC
Treaty (now Article 10 EC), to preclude, and thus no ground on
which to ban, a political demonstration of 28 hours' duration
which, in conjunction with a pre-existing national generally
applicable ban on holiday driving, causes an essential
intra-Community goods transit route to be closed, inter alia,
to the majority of heavy goods traffic for four days, with a
short interruption of a few hours, does that decision
constitute a sufficiently serious infringement of Community
law in order to establish liability on the part of the Member
State under the principles of Community law, provided that the
other requirements for such liability are met?
4. Is the
objective of an officially authorised political demonstration,
namely that of working for a healthy environment and of
drawing attention to the danger to public health caused by the
constant increase in the transit traffic of heavy goods
vehicles, to be deemed to be of a higher order than the
provisions of Community law on the free movement of goods
under Article 28 EC?
5. Is there loss giving rise to a
claim founded on State liability where the person incurring
the loss can prove that he was in a position to earn income,
in the present case from the international transport of goods
by means of the heavy goods vehicles operated by him but
rendered idle by the 28 hour demonstration, yet is unable to
prove the loss of a specific transport journey?
6. If the
reply to Question 4 is in the negative:
In order to comply
with the obligation of cooperation and solidarity incumbent
under Article 5 of the EC Treaty (now Article 10 EC) on
national authorities, in particular the courts, and with the
principle of effectiveness, must application of national rules
of substantive or procedural law curtailing the ability to
assert claims which are well founded under Community law, such
as in the present case a claim founded on State liability, be
deferred pending full elucidation of the substance of the
claim at Community law, if necessary following a reference to
the Court of Justice for a preliminary ruling?'
Admissibility
26 The Republic of Austria harbours
doubts as to the admissibility of the present reference and
submits essentially that the questions referred by the
Oberlandesgericht Innsbruck are purely hypothetical and
irrelevant to the determination of the dispute in the main
proceedings.
27 The legal action brought by Schmidberger,
seeking to establish the liability of a Member State for
breach of Community law, requires the company to adduce
evidence of genuine damage resulting from the alleged breach.
28 Before the two national courts successively seised of
the dispute Schmidberger failed to establish either the
existence of specific individual loss - by substantiating with
specific evidence the statement that its heavy goods vehicles
had to use the Brenner motorway on the days when the
demonstration took place there, as part of transport
operations between Germany and Italy - or, if appropriate,
that it had complied with its obligation to mitigate the
damage that it claims to have suffered, by explaining why it
was not able to choose a route other than the one closed.
29 In those circumstances, answers to the questions
referred are not necessary in order to enable the referring
court to decide the case or, at least, the request for a
preliminary ruling is premature as long as the facts have not
been found and relevant evidence has not been fully adduced
before that court.
30 In that regard, according to settled
case-law, the procedure provided for by Article 234 EC is an
instrument of cooperation between the Court of Justice and
national courts by means of which the former provides the
latter with interpretation of such Community law as is
necessary for them to give judgment in cases upon which they
are called to adjudicate (see, inter alia, Joined Cases
C-297/88 and C-197/89 Dzodzi [1990] ECR I-3763, paragraph 33;
Case C-231/89 Gmurzynska-Bscher [1990] ECR I-4003, paragraph
18; Case C-83/91 Meilicke [1992] ECR I-4871, paragraph 22, and
Case C-413/99 Baumbast and R [2002] ECR I-7091, paragraph 31).
31 In the context of that cooperation, it is for the
national court seised of the dispute, which alone has direct
knowledge of the facts giving rise to the dispute and must
assume responsibility for the subsequent judicial decision, to
determine in the light of the particular circumstances of the
case both the need for a preliminary ruling in order to enable
it to deliver judgment and the relevance of the questions
which it submits to the Court. Consequently, where the
questions submitted concern the interpretation of Community
law, the Court of Justice is, in principle, bound to give a
ruling (see, inter alia, Case C-415/93 Bosman [1995] ECR
I-4921, paragraph 59; Case C-379/98 PreussenElektra [2001] ECR
I-2099, paragraph 38; Case C-153/00 Der Weduwe [2002] ECR
I-0000, paragraph 31, and Case C-318/00 Bacardi-Martini and
Cellier des Dauphins [2003] ECR I-0000, paragraph 41).
32
However, the Court has also held that, in exceptional
circumstances, it can examine the conditions in which the case
was referred to it by the national court (see, to that effect,
PreussenElektra, cited above, paragraph 39). The spirit of
cooperation which must prevail in preliminary ruling
proceedings requires the national court for its part to have
regard to the function entrusted to the Court of Justice,
which is to contribute to the administration of justice in the
Member States and not to give opinions on general or
hypothetical questions (Bosman, paragraph 60; Der Weduwe,
paragraph 32, and Bacardi-Martini and Cellier des Dauphins,
paragraph 42).
33 Thus, the Court has held that it has no
jurisdiction to give a preliminary ruling on a question
submitted by a national court where it is quite obvious that
the interpretation or the assessment of the validity of a
provision of Community law sought by that court bears no
relation to the actual facts of the main action or its
purpose, or where the problem is hypothetical, or where the
Court does not have before it the factual or legal material
necessary to give a useful answer to the questions submitted
to it (see Bosman, paragraph 61, and Bacardi-Martini and
Cellier des Dauphins, paragraph 43).
34 In the present
case, it is by no means clear that the questions referred by
the national court fall within one or other of the situations
referred to in the case-law cited in the preceding paragraph.
35 The action brought by Schmidberger seeks compensation
from the Republic of Austria for the damage which the alleged
breach of Community law is said to have caused it, consisting
in the fact that the Austrian authorities did not ban the
demonstration which resulted in the Brenner motorway being
closed to all traffic for a continuous period of almost 30
hours.
36 It follows that the request for an
interpretation of Community law made by the national court has
undeniably arisen in the context of a genuine dispute between
the parties to the main proceedings and which cannot therefore
be regarded as hypothetical.
37 Furthermore, it is
apparent from the order for reference that the national court
has set out in precise and detailed terms the reasons why it
considers it necessary for the determination of the dispute
before it to refer to the Court various questions on the
interpretation of Community law including, in particular, that
relating to the factors to be taken into account when taking
evidence of the damage allegedly suffered by Schmidberger.
38 Moreover, it follows from the observations submitted by
the Member States in response to the notification of the order
for reference and by the Commission pursuant to Article 23 of
the EC Statute of the Court of Justice that the information in
that order enabled them properly to state their position on
all the questions submitted to the Court.
39 It is clear
from the second paragraph of Article 234 EC that it is for the
national court to decide at what stage in the proceedings it
is appropriate for that court to refer a question to the Court
of Justice for a preliminary ruling (see Joined Cases 36/80
and 71/80 Irish Creamery Milk Suppliers Association and Others
[1981] ECR 735, paragraph 5, and Case C-236/98 JämO [2000] ECR
I-2189, paragraph 30).
40 It is equally undeniable that
the referring court has defined to the requisite legal
standard both the factual and legal context of its request for
interpretation of Community law and that it has provided the
Court with all the information necessary to enable it to reply
usefully to that request.
41 Furthermore, it is logical
that the referring court requests the Court, first, to
determine which types of damage can be taken into
consideration for the purposes of State liability for breach
of Community law - and, in particular, requests it to clarify
the question whether compensation is in respect only of damage
in fact suffered or if it also covers loss of profit based on
general estimates, and whether and to what extent the victim
must try to avoid or mitigate that loss -, before that court
rules on the specific evidence recognised as being relevant by
the Court in the assessment of the damage in fact suffered by
Schmidberger.
42 Lastly, in the context of an action for
liability on the part of a Member State, the referring court
not only asks the Court about the requirement that there be
damage and the forms which that may take and the detailed
rules of evidence in that regard, but also considers it
necessary to pose several questions on the other requirements
to be met in making out a claim based on such liability and,
in particular, as to whether the conduct of the relevant
national authorities in the main case constitutes a breach of
Community law and whether that breach is such as to entitle
the alleged victim to compensation.
43 In the light of the
foregoing, it cannot be maintained that as regards the main
proceedings the Court is called upon to rule on a question
which is purely hypothetical or irrelevant for the purposes of
the decision which the national court is called upon to give.
44 On the contrary, it follows from those considerations
that the questions referred by that court meet an objective
need for the purpose of settling the dispute before it, in the
course of which it is called upon to give a decision capable
of taking account of the Court's judgment, and the information
provided to the latter, in particular in the order for
reference, enables it to reply usefully to those questions.
45 Consequently, the reference for a preliminary ruling
made by the Oberlandesgericht Innsbruck is admissible.
The
questions referred for a preliminary ruling
46 It should
be noted at the outset that the questions referred by the
national court raise two distinct, albeit related, issues.
47 First, the Court is asked to rule on whether the fact
that the Brenner motorway was closed to all traffic for almost
30 hours without interruption, in circumstances such as those
at issue in the main proceedings, amounts to a restriction of
the free movement of goods and must therefore be regarded as a
breach of Community law. Second, the questions relate more
specifically to the circumstances in which the liability of a
Member State may be established in respect of damage caused to
individuals as a result of an infringement of Community law.
48 On the latter question, the national court asks in
particular for clarification of whether, and if so to what
extent, in circumstances such as those of the case before it,
the breach of Community law - if made out - is sufficiently
manifest and serious to give rise to liability on the part of
the Member State concerned. It also asks the Court about the
nature and evidence of the damage to be compensated.
49
Given that, logically, this second series of questions need be
examined only if the first issue, as defined in the first
sentence of paragraph 47 of the present judgment, is answered
in the affirmative, the Court must first give a ruling on the
various points raised by that issue, which is essentially the
subject of the first and fourth questions.
50 In the light
of the evidence in the file of the main case sent by the
referring court and the written and oral observations
presented to the Court, those questions must be understood as
seeking to determine whether the fact that the authorities of
a Member State did not ban a demonstration with primarily
environmental aims which resulted in the complete closure of a
major transit route, such as the Brenner motorway, for almost
30 hours without interruption amounts to an unjustified
restriction of the free movement of goods which is a
fundamental principle laid down by Articles 30 and 34 of the
Treaty, read together, if necessary, with Article 5 thereof.
Whether there is a restriction of the free movement of
goods
51 It should be stated at the outset that the free
movement of goods is one of the fundamental principles of the
Community.
52 Thus, Article 3 of the EC Treaty (now, after
amendment, Article 3 EC), inserted in the first part thereof,
entitled `Principles', provides in subparagraph (c) that for
the purposes set out in Article 2 of the Treaty the activities
of the Community are to include an internal market
characterised by the abolition, as between Member States, of
obstacles to inter alia the free movement of goods.
53 The
second paragraph of Article 7a of the EC Treaty (now, after
amendment, Article 14 EC) provides that the internal market is
to comprise an area without internal frontiers in which the
free movement of goods is ensured in accordance with the
provisions of the Treaty.
54 That fundamental principle is
implemented primarily by Articles 30 and 34 of the Treaty.
55 In particular, Article 30 provides that quantitative
restrictions on imports and all measures having equivalent
effect are prohibited between Member States. Similarly,
Article 34 prohibits, between Member States, quantitative
restrictions on exports and all measures having equivalent
effect.
56 It is settled case-law since the judgment in
Case 8/74 Dassonville [1974] ECR 837, paragraph 5) that those
provisions, taken in their context, must be understood as
being intended to eliminate all barriers, whether direct or
indirect, actual or potential, to trade flows in
intra-Community trade (see, to that effect, Case C-265/95
Commission v France [1997] ECR I-6959, paragraph 29).
57
In this way the Court held in particular that, as an
indispensable instrument for the realisation of a market
without internal frontiers, Article 30 does not prohibit only
measures emanating from the State which, in themselves, create
restrictions on trade between Member States. It also applies
where a Member State abstains from adopting the measures
required in order to deal with obstacles to the free movement
of goods which are not caused by the State (Commission v
France, cited above, paragraph 30).
58 The fact that a
Member State abstains from taking action or, as the case may
be, fails to adopt adequate measures to prevent obstacles to
the free movement of goods that are created, in particular, by
actions by private individuals on its territory aimed at
products originating in other Member States is just as likely
to obstruct intra-Community trade as is a positive act
(Commission v France, cited above, paragraph 31).
59
Consequently, Articles 30 and 34 of the Treaty require the
Member States not merely themselves to refrain from adopting
measures or engaging in conduct liable to constitute an
obstacle to trade but also, when read with Article 5 of the
Treaty, to take all necessary and appropriate measures to
ensure that that fundamental freedom is respected on their
territory (Commission v France, cited above, paragraph 32).
Article 5 of the Treaty requires the Member States to take all
appropriate measures, whether general or particular, to ensure
fulfilment of the obligations arising out of the Treaty and to
refrain from any measures which could jeopardise the
attainment of the objectives of that Treaty.
60 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, that obligation upon each
Member State to ensure the free movement of products 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.
61
Paragraph 53 of the judgment in Commission v France, cited
above, shows that the case giving rise to that judgment
concerned not only imports but also the transit through France
of products from other Member States.
62 It follows that,
in a situation such as that at issue in the main proceedings,
where the competent national authorities are faced with
restrictions on the effective exercise of a fundamental
freedom enshrined in the Treaty, such as the free movement of
goods, which result from actions taken by individuals, they
are required to take adequate steps to ensure that freedom in
the Member State concerned even if, as in the main
proceedings, those goods merely pass through Austria en route
for Italy or Germany.
63 It should be added that that
obligation of the Member States is all the more important
where the case concerns a major transit route such as the
Brenner motorway, which is one of the main land links for
trade between northern Europe and the north of Italy.
64
In the light of the foregoing, the fact that the competent
authorities of a Member State did not ban a demonstration
which resulted in the complete closure of a major transit
route such as the Brenner motorway for almost 30 hours on end
is capable of restricting intra-Community trade in goods and
must, therefore, be regarded as constituting a measure of
equivalent effect to a quantitative restriction which is, in
principle, incompatible with the Community law obligations
arising from Articles 30 and 34 of the Treaty, read together
with Article 5 thereof, unless that failure to ban can be
objectively justified.
Whether the restriction may be
justified
65 In the context of its fourth question, the
referring court asks essentially whether the purpose of the
demonstration on 12 and 13 June 1998 - during which the
demonstrators sought to draw attention to the threat to the
environment and public health posed by the constant increase
in the movement of heavy goods vehicles on the Brenner
motorway and to persuade the competent authorities to
reinforce measures to reduce that traffic and the pollution
resulting therefrom in the highly sensitive region of the Alps
- is such as to frustrate Community law obligations relating
to the free movement of goods.
66 However, even if the
protection of the environment and public health, especially in
that region, may, under certain conditions, constitute a
legitimate objective in the public interest capable of
justifying a restriction of the fundamental freedoms
guaranteed by the Treaty, including the free movement of
goods, it should be noted, as the Advocate General pointed out
at paragraph 54 of his Opinion, that the specific aims of the
demonstration are not in themselves material in legal
proceedings such as those instituted by Schmidberger, which
seek to establish the liability of a Member State in respect
of an alleged breach of Community law, since that liability is
to be inferred from the fact that the national authorities did
not prevent an obstacle to traffic from being placed on the
Brenner motorway.
67 Indeed, for the purposes of
determining the conditions in which a Member State may be
liable and, in particular, with regard to the question whether
it infringed Community law, account must be taken only of the
action or omission imputable to that Member State.
68 In
the present case, account should thus be taken solely of the
objective pursued by the national authorities in their
implicit decision to authorise or not to ban the demonstration
in question.
69 It is apparent from the file in the main
case that the Austrian authorities were inspired by
considerations linked to respect of the fundamental rights of
the demonstrators to freedom of expression and freedom of
assembly, which are enshrined in and guaranteed by the ECHR
and the Austrian Constitution.
70 In its order for
reference, the national court also raises the question whether
the principle of the free movement of goods guaranteed by the
Treaty prevails over those fundamental rights.
71
According to settled case-law, fundamental rights form an
integral part of the general principles of law the observance
of which the Court ensures. For that purpose, the Court draws
inspiration from the constitutional traditions common to the
Member States and from the guidelines supplied by
international treaties for the protection of human rights on
which the Member States have collaborated or to which they are
signatories. The ECHR has special significance in that respect
(see, inter alia, Case C-260/89 ERT [1991] ECR I-2925,
paragraph 41; Case C-274/99 P Connolly v Commission [2001] ECR
I-1611, paragraph 37, and Case C-94/00 Roquette Frères [2002]
ECR I-9011, paragraph 25).
72 The principles established
by that case-law were reaffirmed in the preamble to the Single
European Act and subsequently in Article F.2 of the Treaty on
European Union (Bosman, cited above, paragraph 79). That
provision states that `[t]he Union shall respect fundamental
rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms signed in
Rome on 4 November 1950 and as they result from the
constitutional traditions common to the Member States, as
general principles of Community law.'
73 It follows that
measures which are incompatible with observance of the human
rights thus recognised are not acceptable in the Community
(see, inter alia, ERT, cited above, paragraph 41, and Case
C-299/95 Kremzow [1997] ECR I-2629, paragraph 14).
74
Thus, since both the Community and its Member States are
required to respect fundamental rights, the protection of
those rights is a legitimate interest which, in principle,
justifies a restriction of the obligations imposed by
Community law, even under a fundamental freedom guaranteed by
the Treaty such as the free movement of goods.
75 It is
settled case-law that where, as in the main proceedings, a
national situation falls within the scope of Community law and
a reference for a preliminary ruling is made to the Court, it
must provide the national courts with all the criteria of
interpretation needed to determine whether that situation is
compatible with the fundamental rights the observance of which
the Court ensures and which derive in particular from the ECHR
(see to that effect, inter alia, Case 12/86 Demirel [1987] ECR
3719, paragraph 28).
76 In the present case, the national
authorities relied on the need to respect fundamental rights
guaranteed by both the ECHR and the Constitution of the Member
State concerned in deciding to allow a restriction to be
imposed on one of the fundamental freedoms enshrined in the
Treaty.
77 The case thus raises the question of the need
to reconcile the requirements of the protection of fundamental
rights in the Community with those arising from a fundamental
freedom enshrined in the Treaty and, more particularly, the
question of the respective scope of freedom of expression and
freedom of assembly, guaranteed by Articles 10 and 11 of the
ECHR, and of the free movement of goods, where the former are
relied upon as justification for a restriction of the latter.
78 First, whilst the free movement of goods constitutes
one of the fundamental principles in the scheme of the Treaty,
it may, in certain circumstances, be subject to restrictions
for the reasons laid down in Article 36 of that Treaty or for
overriding requirements relating to the public interest, in
accordance with the Court's consistent case-law since the
judgment in Case 120/78 Rewe-Zentral (`Cassis de Dijon')
[1979] ECR 649.
79 Second, whilst the fundamental rights
at issue in the main proceedings are expressly recognised by
the ECHR and constitute the fundamental pillars of a
democratic society, it nevertheless follows from the express
wording of paragraph 2 of Articles 10 and 11 of the Convention
that freedom of expression and freedom of assembly are also
subject to certain limitations justified by objectives in the
public interest, in so far as those derogations are in
accordance with the law, motivated by one or more of the
legitimate aims under those provisions and necessary in a
democratic society, that is to say justified by a pressing
social need and, in particular, proportionate to the
legitimate aim pursued (see, to that effect, Case C-368/95
Familiapress [1997] ECR I-3689, paragraph 26, Case C-60/00
Carpenter [2002] ECR I-6279, paragraph 42, and Eur. Court HR,
Steel and Others v. The United Kingdom judgment of 23
September 1998, Reports of Judgments and Decisions 1998-VII, §
101).
80 Thus, unlike other fundamental rights enshrined
in that Convention, such as the right to life or the
prohibition of torture and inhuman or degrading treatment or
punishment, which admit of no restriction, neither the freedom
of expression nor the freedom of assembly guaranteed by the
ECHR appears to be absolute but must be viewed in relation to
its social purpose. Consequently, the exercise of those rights
may be restricted, provided that the restrictions in fact
correspond to objectives of general interest and do not,
taking account of the aim of the restrictions, constitute
disproportionate and unacceptable interference, impairing the
very substance of the rights guaranteed (see, to that effect,
Case C-62/90 Commission v Germany [1992] ECR I-2575, paragraph
23, and Case C-404/92 P X v Commission [1994] ECR I-4737,
paragraph 18).
81 In those circumstances, the interests
involved must be weighed having regard to all the
circumstances of the case in order to determine whether a fair
balance was struck between those interests.
82 The
competent authorities enjoy a wide margin of discretion in
that regard. Nevertheless, it is necessary 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.
83 As regards the main case, it should
be emphasised at the outset that the circumstances
characterising it are clearly distinguishable from the
situation in the case giving rise to the judgment in
Commission v France, cited above, referred to by Schmidberger
as a relevant precedent in the course of its legal action
against Austria.
84 By comparison with the points of fact
referred to by the Court at paragraphs 38 to 53 of the
judgment in Commission v France, cited above, it should be
noted, first, that the demonstration at issue in the main
proceedings took place following a request for authorisation
presented on the basis of national law and after the competent
authorities had decided not to ban it.
85 Second, because
of the presence of demonstrators on the Brenner motorway,
traffic by road was obstructed on a single route, on a single
occasion and during a period of almost 30 hours. Furthermore,
the obstacle to the free movement of goods resulting from that
demonstration was limited by comparison with both the
geographic scale and the intrinsic seriousness of the
disruption caused in the case giving rise to the judgment in
Commission v France, cited above.
86 Third, it is not in
dispute that by that demonstration, citizens were exercising
their fundamental rights by manifesting in public an opinion
which they considered to be of importance to society; it is
also not in dispute that the purpose of that public
demonstration was not to restrict trade in goods of a
particular type or from a particular source. By contrast, in
Commission v France, cited above, the objective pursued by the
demonstrators was clearly to prevent the movement of
particular products originating in Member States other than
the French Republic, by not only obstructing the transport of
the goods in question, but also destroying those goods in
transit to or through France, and even when they had already
been put on display in shops in the Member State concerned.
87 Fourth, in the present case various administrative and
supporting measures were taken by the competent authorities in
order to limit as far as possible the disruption to road
traffic. Thus, in particular, those authorities, including the
police, the organisers of the demonstration and various
motoring organisations cooperated in order to ensure that the
demonstration passed off smoothly. Well before the date on
which it was due to take place, an extensive publicity
campaign had been launched by the media and the motoring
organisations, both in Austria and in neighbouring countries,
and various alternative routes had been designated, with the
result that the economic operators concerned were duly
informed of the traffic restrictions applying on the date and
at the site of the proposed demonstration and were in a
position timeously to take all steps necessary to obviate
those restrictions. Furthermore, security arrangements had
been made for the site of the demonstration.
88 Moreover,
it is not in dispute that the isolated incident in question
did not give rise to a general climate of insecurity such as
to have a dissuasive effect on intra-Community trade flows as
a whole, in contrast to the serious and repeated disruptions
to public order at issue in the case giving rise to the
judgment in Commission v France, cited above.
89 Finally,
concerning the other possibilities envisaged by Schmidberger
with regard to the demonstration in question, taking account
of the Member States' wide margin of discretion, in
circumstances such as those of the present case the competent
national authorities were entitled to consider that an
outright ban on the demonstration would have constituted
unacceptable interference with the fundamental rights of the
demonstrators to gather and express peacefully their opinion
in public.
90 The imposition of stricter conditions
concerning both the site - for example by the side of the
Brenner motorway - and the duration - limited to a few hours
only - of the demonstration in question could have been
perceived as an excessive restriction, depriving the action of
a substantial part of its scope. Whilst the competent national
authorities must endeavour to limit as far as possible the
inevitable effects upon free movement of a demonstration on
the public highway, they must balance that interest with that
of the demonstrators, who seek to draw the aims of their
action to the attention of the public.
91 An action of
that type usually entails inconvenience for non-participants,
in particular as regards free movement, but the inconvenience
may in principle be tolerated provided that the objective
pursued is essentially the public and lawful demonstration of
an opinion.
92 In that regard, the Republic of Austria
submits, without being contradicted on that point, that in any
event, all the alternative solutions which could be
countenanced would have risked reactions which would have been
difficult to control and would have been liable to cause much
more serious disruption to intra-Community trade and public
order, such as unauthorised demonstrations, confrontation
between supporters and opponents of the group organising the
demonstration or acts of violence on the part of the
demonstrators who considered that the exercise of their
fundamental rights had been infringed.
93 Consequently,
the national authorities were reasonably entitled, having
regard to the wide discretion which must be accorded to them
in the matter, to consider that the legitimate aim of that
demonstration could not be achieved in the present case by
measures less restrictive of intra-Community trade.
94 In
the light of those considerations, the answer to the first and
fourth questions must be that the fact that the authorities of
a Member State did not ban a demonstration in circumstances
such as those of the main case is not incompatible with
Articles 30 and 34 of the Treaty, read together with Article 5
thereof.
The conditions for liability of the Member State
95 It follows from the answer given to the first and
fourth questions that, having regard to all the circumstances
of a case such as that before the referring court, the
competent national authorities cannot be said to have
committed a breach of Community law such as to give rise to
liability on the part of the Member State concerned.
96 In
those circumstances, there is no need to rule on the other
questions referred concerning some of the conditions necessary
for a Member State to incur liability for damage caused to
individuals by that Member State's infringement of Community
law.
Decision on costs
Costs
97 The
costs incurred by the Austrian, Greek, Italian, Netherlands
and Finnish Governments and by the Commission, which have
submitted observations to the Court, are not recoverable.
Since these proceedings are, for the parties to the main
action, a step in the proceedings pending before the national
court, the decision on costs is a matter for that court.
Operative part of the judgment
On
those grounds,
THE COURT,
in answer to the questions
referred to it by the Oberlandesgericht Innsbruck by order of
1 February 2000, hereby rules:
The fact that the
authorities of a Member State did not ban a demonstration in
circumstances such as those of the main case is not
incompatible with Articles 30 and 34 of the EC Treaty (now,
after amendment, Articles 28 EC and 29 EC), read together with
Article 5 of the EC Treaty (now Article 10 EC).