EU Law - One Schmidberger with Omega Dressing Please
Protecting the fundamental right to protest the environmental effects of heavy road traffic in the Alps may take priority over the free movement of goods. So said the ECJ more than five years ago in the Schmidberger case. As the short lived EU Case Law digest pointed out, it is “probably” the first time that the ECJ found a source of law that trumped a fundamental freedom.
But does this mean that a member state might ban the use of “laserdromes” because they violate a fundamental …right to human dignity? Based on the Omega case apparently so in Germany. This is because the Germans concluded that the game in the laserdromes is a “simulated killing action”, and therefore in contradition to the German constitutional principle of respect for human dignity. The ECJ went along with this.
It matters not whether Germany is alone in taking this view, because there is arguably “no common market for morality“. But, as Law Weblog points out, then what about Conegate (where the UK could not stop the importation of inflatable dolls “of a sexual nature” on grounds of protecting morals) and Grogan (where Ireland could not stop Irish women from travelling for the purpose of getting an abortion)?
So, we have a legal distinction between Conegate and Grogan on the one side where certain highly sensitive values do not find support in fundamental rights and therefore do not trump fundamental freedoms, and Schmidberger and Omega on the other side where other values do find support in fundamental rights and hence may trump fundamental freedoms. Interesting distinction.
And if the Irish amended their constitution to add a principle protecting the dignity of unborn life? Or if the British accepted as a constitutional principle the need to protect the dignity of women’s sexuality? Hmmm…
FOLLOW - Related to Grogan, and this blog’s interest in improving access to remedies for breaches of EC law — here is a nice link to an outline of means that individuals may use to get access to the ECJ to challenge national law.
2d FOLLOW - Here is a nice link to an article by Rick Lawson on the effects of the Grogan judgment on Irish sovereignty.