Case Note: “Eugen Schmidberger Internationale Transporte ...

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Case Note Human Rights Law
Case Note: “Eugen Schmidberger
Internationale Transporte Planzüge
v. Austria” - Freedom of Expression
and Assembly v. Free Movement of
Goods
Gerry Facenna
Barrister, Monckton Chambers
Article published in “The European Human Rights
Law Review” – February 2004
This analysis considers the judgment of the European Court of
Justice (‘ECJ’) in Eugen Schmidberger Internationale Transporte
Planzüge v. Austria 1 , a reference for a preliminary ruling from the
Higher Regional Court (Oberlandesgericht), Innsbruck, Austria.
The case required the ECJ to reconcile the protection of
fundamental rights in the Community - more particularly freedom
of expression and freedom of assembly guaranteed by Articles 10
and 11 of the ECHR - with the requirements arising from a Member
State’s duty to keep major transit routes open in order to ensure
the free movement of goods within the Community, under Article
28 of the EC Treaty. The writer considers the factors influencing
the ECJ’s decision, including the increasing possibility of the
Community courts’ decisions being questioned before the European
Court of Human Rights.
Principal Facts
The Claimant (‘Schmidberger’) was a German transport company
transporting mainly timber and steel between Germany and Italy.
In doing so, its lorries used the Brenner motorway through the
Austrian Alps, which is the primary transalpine route for heavy
goods vehicles travelling between Italy and northern Europe and
an important part of the trans-European transport network. In
May 1998, ‘Transitforum Austria Tirol’, an environmental pressure
group, gave notice of its intention to hold a demonstration on a
stretch of the Brenner motorway, blocking the route for twentyeight
hours on 12-13 June 1998. The aims of the demonstration
were essentially to demand a strengthening of the legal measures
designed to limit and reduce heavy goods traffic on the motorway
and the resulting pollution.
The Austrian authorities allowed the demonstration to go ahead
and co-operated with the organisers and motoring organisations to
limit the disruption caused, including by widely publicising notice of
the demonstration, suggesting alternative routes and providing
1 Case C-112/00, judgment of 12 June 2003; [2003] 2 C.M.L.R. 34; The
Times, 27 June, 2003.

Case Note Human RightsLaw
extra trains to allow traffic to use ‘rolling road’ railway facilities. In the event, the demonstration
caused the motorway to be closed to all traffic for approximately thirty hours. However, because
the demonstration was timed to take place between a bank holiday and the weekend, when there
was in any event a general prohibition on heavy goods traffic, the motorway was closed to most
heavy goods vehicles for four consecutive days.
Schmidberger brought proceedings in the Austrian courts against the State alleging that, by allowing
the closure of the road, the authorities had failed to guarantee the free movement of goods in
accordance with Article 28 of the EC Treaty, and were therefore liable in damages to the company,
which had been prevented from operating its vehicles on their normal route. In its defence, Austria
argued essentially that the authorities had taken a reasonable decision after weighing up the various
interests involved, concluding that the demonstrators’ right to freedom of assembly could be
exercised without any serious or permanent obstruction of long-distance traffic.
The Innsbruck Higher Regional Court (‘Oberlandesgericht’) made a reference to the European Court
of Justice (‘ECJ’) for a preliminary ruling under Article 234 EC, essentially raising the question of
whether the principle of free movement of goods guaranteed by the EC Treaty took precedence in
Community law over fundamental rights such as freedom of expression and freedom of assembly
guaranteed by Articles 10 and 11 ECHR.
The Decision
Two issues arose that were unconnected with the question as to the relationship between Article 28
EC and the fundamental rights in issue. The first, a challenge by the Austrian Government to the
admissibility of the reference, is not dealt with in any detail in this analysis: ultimately the Court
found the reference to be admissible. 2 Secondly, the reference raised a number of issues relating to
a Member State’s liability in respect of damage caused to individuals as a result of a breach of
Community law 3 , on which the Court did not consider it necessary to make a ruling. 4
Restriction on Free Movement of Goods
In addressing the substantive issue before it, the ECJ had first to decide whether the demonstration
on the Brenner motorway constituted a restriction on the free movement of goods. The Court noted
that this freedom is one of the fundamental principles of the Community, enshrined in Articles 3, 14,
and 28 to 31 of the EC Treaty. It explained that these Treaty provisions not only prohibit restrictive
measures emanating from Member States themselves, but also require Member States to adopt
measures necessary to remove obstacles to free movement that are not caused by the State. 5
According to the Court, Articles 28 and 29 of the Treaty, which prohibit quantitative restrictions on
imports and exports and all measures having equivalent effect 6 , require Member States not merely
to refrain from adopting measures or engaging in conduct liable to constitute obstacles to trade but
also, when read with Article 10 of the Treaty 7 , to take all necessary and appropriate steps to ensure
that the free movement of goods within the Community is respected within their territory. This
applies whether the restriction in question affects the flow of imports or exports or merely affects
2 Paragraphs 26 to 45.
3 See, in particular, joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357; joined Cases C-
46/93 and C-48/93 Brasserie du Pêcheur and Factortame and Others [1996] ECR I-1029.
4 Paragraph 96.
5 Paragraph 57, referring to Case C-265/95 Commission v France [1997] ECR I-6959.
6 The Articles are referred to in the judgment by their former numbering, as Articles 30 and 34.
7 Ex-Article 5, which requires Member States to take all appropriate measures to ensure fulfilment of the
obligations arising out of the Treaty, to facilitate the achievement of the Community’s tasks and to abstain from
any measure which could jeopardise the attainment of the objectives of the Treaty.

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the transit of goods, particularly where a major transit route such as the Brenner motorway is
concerned. 8
In the circumstances, the Court found that a Member State’s failure to ban a demonstration, with
the result that a major transit route would be closed for almost 30 hours, was capable of restricting
intra-Community trade in goods and was, in principle, incompatible with a Member State’s Treaty
obligations unless the failure to ban the demonstration could be objectively justified. 9 This was
uncontroversial: although Advocate General Jacobs agreed in his Opinion with the Austrian
Government that there was no absolute duty, even on major transit routes, to ensure that goods
could pass without hindrance at all times and at all costs, he noted that none of the parties
submitting observations (which included four Member States other than Austria) denied that
Member States have a general duty to keep major transit routes open for the free movement of
goods, 10 and he regarded it as “relatively straightforward” that the blockage caused by the
demonstration was in principle capable of constituting a restriction of the free movement of goods. 11
Justification - Fundamental Rights in Community law
The key question for the Court was whether the restriction was, in the circumstances, justified. A
restriction contrary to Articles 28/29 can be justified under the Court’s Cassis de Dijon line of case
law 12 or under Article 30 EC, which provides that Article 28 does not preclude “restrictions on ...
goods in transit justified on grounds of public morality, public policy or public security...” provided
that they do not constitute “a means of arbitrary discrimination or a disguised restriction on trade
between Member States”. Under the Cassis de Dijon line of case law, restrictions that are not
inherently discriminatory will be accepted if they are necessary to satisfy so-called mandatory
requirements in the public interest. 13
When framing the reference to the ECJ the Austrian Court had asked whether the purpose of the
demonstration – i.e. drawing attention to the threat to the environment and public health posed by
the constant increase in heavy goods vehicles on the Brenner motorway and to persuade the
competent authorities to reinforce measures to reduce that traffic and the resulting pollution in the
highly sensitive region of the Alps - was such as to frustrate Community law obligations relating to
the free movement of goods.
However, as Advocate General Jacobs explained in his Opinion, although protection of health and the
environment in the Alpine region is a matter of major concern, the issue raised by the reference was
not a conflict between environmental interests and the free movement of goods. The Court agreed
that, while the protection of the environment and public health could, under certain conditions,
constitute a legitimate objective in the public interest capable of justifying a restriction of the
fundamental freedoms guaranteed by the Treaty 14 , it was only the objective pursued by the national
authorities in permitting the demonstration to go ahead that was relevant, and it was apparent that
the Austrian authorities were inspired by considerations linked to respect for the demonstrators’
right to freedom of expression and freedom of assembly, rather than to their specific political aims. 15
The Court began by rehearsing its settled case law, which establishes that fundamental rights are an
integral part of the general principles of law, the observance of which the Court ensures. As the
Court has stated on many occasions, for that purpose it draws inspiration from the constitutional
traditions common to the Member States and from international treaties for the protection of human
8
Paragraphs 61 to 63.
9
Paragraph 64.
10
Opinion of Advocate General Jacobs, 11 July 2002, at paragraphs 15, 83.
11
Ibid. at paragraphs 62-63.
12
Case 120/78 Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein (“Cassis de Dijon”) [1979] ECR 649, at para. 8.
13
Ibid.; Cases C-267-268/91 Keck and Mithouard [1993] ECR I-6097
14
See, for example, Case C-379/98 PreussenElektra [2001] ECR I-2099.
15
Paragraphs 66 to 69.

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rights on which the Member States have collaborated or to which they are signatories, with the
ECHR having special significance in that respect. 16 The Court also noted that the principles
established by that case law were reaffirmed in the preamble to the Single European Act 17 and in
Article 6 of the Treaty on European Union, which states that “[t]he Union shall respect fundamental
rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to
the Member States, as general principles of Community law”.
As the Court said, “measures which are incompatible with observance of the human rights thus
recognised are not acceptable in the Community” 18 and, 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
by a fundamental freedom guaranteed by the Treaty such as the free movement of goods.
However, the Court noted that rights expressly recognised by Articles 10 and 11 of the ECHR, while
constituting fundamental pillars of a democratic society, are also, under the Convention, subject to
limitations in accordance with the second paragraphs of those provisions. 19 Since the exercise of
those rights could be restricted, provided that the restrictions in fact corresponded to objectives of
general interest and did not constitute disproportionate and unacceptable interference impairing the
very substance of the rights guaranteed, the Court considered that all the interests involved -
including free of movement of goods - had to be weighed, having regard to all the circumstances of
the case, in order to determine whether a fair balance had been struck. 20
Proportionality and the balancing exercise
The Court first sought to distinguish its decision in Case C-265/95 Commission v France [1997] ECR
I-6959, in which it had declared France to be in breach of its Treaty obligations to ensure the free
movement of goods by reason of it having failed to adopt measures to prevent violent acts of
protest by French farmers against agricultural produce from other Member States. Schmidberger
had sought to rely on the case as a relevant authority, however the Court described it as “clearly
distinguishable”. 21 The Austrian demonstration was properly authorised by the competent
authorities, traffic had been obstructed on a single route on a single occasion, the demonstrators
had been exercising their fundamental rights by manifesting in public an opinion which they
considered to be of importance to society, and the purpose of the demonstration had not been to
restrict trade in goods of a particular type or from a particular source. By contrast, the farmers’
protests in France persisted over more than a decade; they were generally unauthorised, were
characterised by regular acts of violence and vandalism and were, in the Court’s view, clearly
intended “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”. 22 Unlike the serious and repeated
disruptions to public order at issue in the case against France, the demonstration in Austria had also
not given rise to a general climate of insecurity such as to have a dissuasive effect on intra-
Community trade flows as a whole. 23
16
Paragraph 71, referring to 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.
17
Official Journal L 169 of 29 June 1987.
18
Paragraph 73, referring to ERT, cited above; Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14.
19
Paragraph 79, referring to Case C-368/95 Familiapress [1997] ECR I-3689, paragraph 26, Case C-60/00
Carpenter [2002] ECR I-6279, paragraph 42, and the ECtHR decision in Steel and Others v. United Kingdom
(1998) 28 EHRR 603, paragraph 101.
20
Paragraphs 80-81
21
Paragraph 83.
22
Paragraph 86.
23
Paragraph 88.

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The Court also referred to the numerous measures the Austrian authorities had taken in order to
minimise the disruption to traffic, including an extensive publicity campaign by the media and
motoring organisations in Austria, Italy and Germany well before the date of the demonstration, cooperation
with the organisers, the police and motoring organisations, additional security
arrangements and the designation of various alternative routes. The Court noted that these
measures resulted in companies being duly informed of the date, location and the traffic restrictions
applying at the time of the demonstration, so that they were able in good time to take all steps to
obviate the restrictions. 24
Having regard to the nature of the demonstration, and taking into account the Member States’ wide
margin of discretion in this area, the Court found that the Austrian authorities were entitled to
conclude that an outright ban on the demonstration would have constituted unacceptable
interference with the fundamental rights of the demonstrators to gather and peacefully express their
opinion in public. 25
However, Schmidberger and the national court in Austria had raised the possibility of alternative
measures that would have involved less interference with the free movement of goods, for example
holding the demonstration next to the motorway or limiting its duration. The Court dismissed these
stricter conditions on the demonstration, which it said could have been perceived as excessive and
as depriving the action of a substantial part of its scope. 26 Advocate General Jacobs wrote in his
Opinion: “the demonstrators could not have made their point nearly as forcefully if they had not
blocked the motorway long enough for the demonstration to ‘bite’. Their demands for action by the
national and Community authorities might well have been heard only faintly, if at all, had they been
required to demonstrate in a field beside the motorway, or allowed to cause only a brief, token
stoppage of traffic.” 27
Both the Court and the Advocate General also accepted the uncontradicted submission of Austria
that, in any event, certain alternative solutions would have risked reactions that 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. 28
According to the Court, whilst national authorities had to endeavour to limit as far as possible the
inevitable effects upon free movement of a demonstration on the public highway, they also had to
balance that interest with that of the demonstrators, who sought to draw the aims of their action to
the attention of the public. A demonstration of the type in question usually entailed inconvenience
for non-participants, in particular as regards free movement but, according to the Court, “the
inconvenience may in principle be tolerated provided that the objective pursued is essentially the
public and lawful demonstration of an opinion”. 29
It followed that, having regard to the wide discretion to be accorded to the State in this matter, the
Austrian authorities were reasonably entitled to consider that the legitimate aim of the
demonstration could not have been achieved by measures less restrictive of intra-Community trade
and could not be said to have committed a breach of Community law so as to give rise to any
liability on the part of the State.
24
Paragraph 87.
25
Paragraph 89.
26
Paragraph 90.
27
Opinion of Advocate General Jacobs, paragraph 110.
28
Judgment, paragraph 92; Opinion of Advocate General Jacobs, paragraph 111.
29
Paragraphs 90, 91.

Analysis
Case Note Human RightsLaw
This case is important primarily because, as the Advocate General noted, it appears to be the first
case in which a Member State has invoked the need to protect fundamental rights to justify a
restriction on one of the fundamental freedoms of the EC Treaty. The ECJ’s handling of the conflict
between a fundamental freedom under the Treaty and the exercise of fundamental rights, and its
approach to the question of proportionality, is also notable.
Member State liability for private conduct under Article 28 EC was clearly established by the decision
in Commission v. France, 30 and the factual differences between the two cases, together with the
Austrian authorities’ realistic approach and apparent weaknesses in Schmidberger’s factual case, all
no doubt contributed to the Court’s sympathetic view of the Austrian authorities’ decision and the
remarks of both Advocate General Jacobs and the Court on the state’s wide margin of discretion. 31
The Court’s efforts to distinguish the case from the decision in Commission v. France also mirror
Strasbourg case law on the protection afforded by Article 11 ECHR, which applies to ‘peaceful’
assemblies but not to assemblies organised with the intended result of violence. 32
The result is not altogether surprising: the ECJ has frequently declared that human rights are part of
the fundamental principles of EC law that the Court (and domestic courts dealing with matters of
Community law) must uphold; 33 and, as the Advocate General pointed out, many of the grounds of
justification currently recognised by the Court as derogations from Articles 28 and 29 EC could also
be formulated as being based on fundamental rights considerations. 34 That being so, it is
unsurprising that the Court and Advocate General agreed that a Member State seeking to protect
fundamental rights necessarily pursues a legitimate objective, since Community law cannot prohibit
Member States from pursuing objectives which the Community itself is bound to pursue. 35
However, the ECJ was anxious to emphasise the paramount importance to the Community of the
principle of the free movement of goods, and Advocate General Jacobs’ Opinion contains an
interesting caveat as to the limited rang of fundamental rights that might be legitimately relied upon
as justifying an exception to Treaty obligations. At paragraphs 96-98 of his Opinion he notes that,
while the ECHR reflects a basic consensus about a core of rights that must be regarded as
fundamental, there are a number of divergences between the fundamental rights catalogues of the
various Member States, which often reflect the history and particular political culture of a given
Member State. Thus, a Member State that sought to protect, for example, a fundamental right to be
protected against unfair competition from firms established abroad would, even though such a
fundamental right might be recognised by its own legal system, be pursuing an objective that
Community law would regard as illegitimate.
30 Case C-265/95; [1997] ECR I-6959; see also Regulation 2679/98 on the functioning of the internal market in
relation to the free movement of goods among the Member States [1998] OJ L 337/8.
31 Judgment, paragraphs 82,89; Opinion of Advocate General Jacobs, paragraphs 106, 107, 117.
32 Christians Against Racism and Fascism v. United Kingdom (1980) 21 DR 138, paragraph 4
33 See, for example, Case 44/79 Hauer v Land Rheinland Pfalz [1979] ECR 3727; Case 5/88 Wachauf v
Germany [1989] ECR 2609, paragraph 17. The protection afforded by Community law is potentially wider than
under the ECHR, as it includes by reference the ICCPR, the European Social Charter, the EU Charter of
Fundamental Rights and other international instruments.
34 Opinion of Advocate General Jacobs, paragraph 89, referring to Case C-36/02 OMEGA Spielhallen- und
Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, pending before the ECJ at the
time of writing, concerning the compatibility with the EC free movement provisions of a national prohibition on
the operation of a “laserdrome” game involving simulated killing by reason of it offending the values enshrined
in the German Constitution.
35 Opinion of Advocate General Jacobs, paragraph 102; Judgment, paragraph 74.

Case Note Human RightsLaw
While the ECJ is not an expert human rights court, it is of course familiar with the principle of
proportionality, which is well established as a general principle of Community law. 36 In this case the
Court was in no doubt, particularly given the relatively short duration of the interruption of traffic, its
isolated occurrence and the measures taken by the authorities to limit the disruption caused by the
demonstration, that the Austrian authorities had not overstepped their margin of discretion.
Two further factors no doubt influenced the Court’s approach. First, as the Advocate General noted
in his Opinion, pollution along the Brenner Pass route has reached alarming proportions and is a
matter of great political concern in Austria and a matter of some sensitivity in Austria’s relations
with the Community. It is the subject of numerous reports and pieces of Community legislation,
including a Protocol to the Austrian accession treaty, and the tolls Austria has sought to impose on
heavy goods vehicles using the route were the subject of a bitter dispute with the Commission,
which Austria eventually lost in the Court of Justice in 2000. 37
Secondly, the ECJ was also no doubt aware of the increasing danger of its case law being called into
question before the European Court of Human Rights in Strasbourg. The Court did not refer to
Strasbourg jurisprudence in any detail; there is only a passing reference to Steel and Others v.
United Kingdom 38 , but a recent number of its decisions have threatened to cause problems for the
Luxembourg Court and its public position is increasingly supportive of Strasbourg case law. The
cases in which the ECJ and the ECtHR have reached opposing conclusions are relatively well known 39
and the question of whether the Community courts’ decisions might in effect become subject to an
appeal to Strasbourg was recently avoided by the decision of the Court of First Instance to set aside
the fines imposed by the Commission on Senator Lines GmbH and other shipping companies. 40 The
CFI’s decision enabled the President of the European Court of Human Rights to cancel the hearing of
Senator Lines’ case against the 15 EU Member States before the Strasbourg Court, which had been
fixed for 22 October 2003. While the political and legal solutions to the Community’s relationship
with the ECHR remain uncertain, the ECJ is likely to tread very carefully indeed in cases involving
fundamental rights.
For more information on Gerry Facenna, please contact the Clerks on 020 7405 7211 or
consult the ‘Find a Barrister’ Section on www.monckton.com.
36
See, for example, Case 44/79 Hauer v. Land Rheinland-Pfalz [1979] ECR 3727, paragraph 23; and Article 5
EC. See also G de Búrca, The Principle of Proportionality and its Application in EC Law (1993) 13 YBEL 105,
111; T Tridimas, The General Principles of EC Law (OUP, 1999), Ch. 3.
37
C-205/98 Commission v. Austria [2000] ECR I-7367. See also footnote 2 to Advocate General Jacobs’
Opinion.
38
(1998) 28 EHRR 603, paragraph 101
39
Joined cases 46/87 and 227/88 Hoechst v. Commission and Case 374/87 Orkem v. Commission [1989] ECR
3283; cf. Niemietz v. Germany (1992) 16 EHRR 97 and Funke v. France (1993) 16 EHRR 297
40
Joined Cases T-191/98 and T-212/98 to T-214/98, judgment of 30 September 2003