C-159/90

Scope and context of the second and third questions I - 4708

Does the prohibition of the distribution of information fall within the scope of Articles 59 and 60 of the EEC Treaty? 1-4711 Imperative requirements of public interest which may justify limitations on the freedom to supply services 1-4715

Assessment of a national rule prohibiting the distribution of information concerning medical abortion services 1-4718

Appraisal of national rules under Community law in the light of fundamental rights and freedoms I - 4721

Compatibility of the prohibition of the distribution of information with the general principles

of Community law with regard to fundamental rights and freedoms I - 4723

Factual and legal background of, inter alia, those provisions the Irish courts have recognized the right to life of the unborn as from the moment of conception.

2. The SPUC is a company incorporated under Irish law whose purpose is to prevent the decriminalization of abortion and, more generally, to protect the rights of unborn Following a referendum in 1983 an express life from the moment of conception. acknowledgment of the right to life of the unborn was inserted in the Irish Constitution. The new third subsection of Article 40, Section 3, of the Constitution The UCDSU and the T C D S U each publish reads as follows: an annual guidebook for students. In common with the previous edition the 1989/90 edition of each of the two guidebooks includes a section containing information for pregnant students. Abortion 'The State acknowledges the right to life of is mentioned as one possible option in the the unborn and, with due regard to the event of an unwanted pregnancy. In that equal right to life of the mother, guarantees connection, the guidebooks provide the in its laws to respect, and, as far as prac- names, addresses and telephone numbers of ticable, by its laws to defend and vindicate a number of clinics in the United Kingdom that right.' where medical termination of pregnancy is available.

In a judgment of 16 March 1988 in The Attorney General at the relation of The T h e USI publishes a monthly publication for Society for the Protection of Unborn Children students entitled 'USI News'. Information is Ireland Ltd v Open Door Counselling provided in particular in the February 1989 Limited and Dublin Well-woman Centre issue on the possibility of having an Limited ' the Supreme Court ruled inter alia abortion in the United Kingdom and on the as follows: way of contacting the agencies concerned.

to the provisions of Article 40, s. 3, sub-s. 3 in order to have their pregnancies of the Constitution' (emphasis added). terminated using the medical facilities provided in that country. They further argued that as a corollary to that right derived from Community law there was a right for interested women in Ireland to obtain information as to the identity and location of abortion clinics in other Member States and the manner of contacting them. 4. In September 1989 the SPUC drew the Lastly, they stated that that right of infor- attention of the students associations mation on the part of pregnant women mentioned above to that judgment of the resident in Ireland also gave rise to a right Supreme Court and requested them to under Community law for the defendants to undertake not to include in their publi- distribute the relevant information in cations during the 1989/90 academic year Ireland. information as to the identity and location of and method of communication with abortion clinics. The students associations gave no such undertaking.

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OPINION OF MR VAN GERVEN —CASE C-159/90

1990 to refer the following three questions Jurisdiction of the Court to the Court of Justice for a preliminary ruling:

6. The Commission observes in its obser- vations that it is not clear whether the High Court's preliminary questions are referred in the context of the interlocutory proceedings '1. Does the organized activity or process or in that of the main proceedings. of carrying out an abortion or the medical termination of pregnancy come within the definition of "services" provided for in Article 60 of the Treaty establishing the European Economic I agree with the Commission's view that Community? that uncertainty is not of such a nature as to cast doubt on the Court's jurisdiction to entertain the request for a preliminary ruling, having regard to the judgment in Pardini.2 If the questions have been referred in connection with the main proceedings they are certainly relevant to the decision to 2. In the absence of any measures be taken by the referring court. However, providing for the approximation of the they are relevant equally if they are referred laws of the Member States concerning in connection with the interlocutory the organized activity or process of proceedings. It is true that the interim carrying out an abortion or the medical measure sought in the interlocutory termination of pregnancy, can a proceedings has since been granted by the Member State prohibit the distribution Supreme Court. But since the Supreme of specific information about the Court gave the parties leave to apply to the identity, location and means of High Court, once the preliminary ruling has communication with a specified clinic or been given, to vary the injunction granted, clinics in another Member State where the reference for a preliminary ruling is abortions are performed? relevant in that case too.

T h e defendants in the main proceedings disagree. As has already been mentioned (in Services within the meaning of Article 60 of section 4) they consider that they can derive the EEC Treaty from Community law a right to provide information which is a corollary to the right to information of pregnant women resident in Ireland which ensues from their freedom guaranteed by the Treaty to go to another Member State to receive medical services. 9. By its first question the national court T h e information provided by the defendants wishes to know whether the Organized can therefore not be seen in isolation from activity or process of carrying out an the economic services provided in another abortion or the medical termination of Member State. pregnancy' is to be regarded as a service within the meaning of Article 60 of the EEC Treaty.

being services 'activities of the professions'. trade in goods in previous cases which have In any event, in the judgment in Luisi and come before the Court, 7 namely whether Carbone* the Court expressly mentioned (in unlawful services fall outwith the scope of paragraph 16) 'persons receiving medical the Treaty provisions on the provision of treatment' as being recipients of a service services. In the light of the questions within the meaning of Article 60. referred by the national court, the services Furthermore, Article 57(3) of the EEC involved in this case are services for the Treaty (on establishment), to which Article medical termination of pregnancy which are 66 (on services) refers, expressly mentions lawfully provided in the country where they the medical and allied professions. are performed (see also section 14 below) and which, as has already been shown (in section 8), are also of a cross-border nature.

11. By its second question the national court wishes to establish whether, in the present state of Community law, a Member In those circumstances I do not have to State may prohibit the distribution of consider the question which has been raised specific information about the identity and on several occasions in connection with location of clinics in another Member State where pregnancies are medically terminated 5 — Judgment of 31 January 1984 in Joined Cases 286/82 and 26/83 Luisi ana Carbone v Ministero del Tesoro [1984] 7 — See in particular the judgment of 5 February 1981 in Case ECR 377. 50/80 Horváth v Hauptzollamt Hamburg-Jonas [1980] 6 — Subject, according to Article 40, s. 3, sub-s. 3 of the Irish ECR 385, concerning the importation of drugs. See also Constitution, quoted in section 3 above, to the equal right the judgment of 6 December 1990 in Case C-343/89 to life of the mother (and to the proviso 'as far as prac- Witzemann, not yet published in the European Court ticable'). Reports, concerning the importation of forged currency.

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SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN IRELAND

12. In its third question the national court 13. It may appear from the above and from asks whether a person in Member State A what follows that the national court's has a right at Community law to distribute questions do not have to do directly with such information about abortion clinics in the compatibility with Community law of Member State B when the provision of the actual prohibition of the provision of abortion is prohibited under both the abortions to pregnant women but with the Constitution and the criminal law of compatibility with Community law of the Member State A but is lawful under certain prohibition on third parties giving conditions in Member State B. It appears assistance, more specifically, information, to from the documents of the main pregnant women wishing to undergo an proceedings that the information in question abortion in another Member State. Yet the is provided in Member State A by persons prohibition of abortion is indirectly relevant, who are not paid for providing it and who that is to say as the ground justifying the have no connections with the clinics in ban on the distribution of information (on Member State B. Do those persons — the this point see sections 26 and 33). national court asks itself — have a right under Community law, that is to say the Treaty provisions on the freedom to provide services, to distribute the information in question?

The national court's questions refer to the prohibition of the distribution of 'specific information about the identity, location and

8 — The British Abortion Act 1967, which authorizes the medical termination of pregnancy in certain circumstances, does not apply in Northern Ireland. In that part of the In addition, it seeks to establish — hence United Kingdom abortion is forbidden. It is not apparent from the written or oral submissions made to the Court the emphasis on the difference between whether a problem similar to that raised in the main the law in Member State A (Ireland) proceedings arises with regard to the provision in Northern Ireland of information about abortion activities and in Member State B (United authorized elsewhere in the United Kingdom.

The national court's questions do not extend beyond the legality of the relevant prohibition on the provision of assistance and information. More specifically, they are not concerned with any penalty which may be imposed in Ireland on pregnant women I assume therefore that the distribution of who undergo an abortion abroad. For that information in Ireland remains within the matter it is not sufficiently clear from the limits of what is allowed in the Member information before the Court or from the statements of the parties whether or not 9 — See, for example, Paragraph 219(b) of the German Straf- Irish law provides for the imposition of any gesetzbuch (Criminal Code), which in principle prohibits any public offer of abortion services. penalty in those circumstances. However, it 10 — See, for example, the rule laid down in Articles L 162-3, is stated in the written observations of the L 645 and L 647 of the French Code de la Same Publique (Public Health Code) under which che medical professions defendants in the main proceedings that and specialized centres have a monopoly of the provision Ireland does not prohibit or seek to prevent of information on abortion. a pregnant woman from exercising her right M — See, for example, Article 350 of the Belgian Criminal Code, which authorizes abortion only in an institution to to travel and receive services of termination which an advisory service is attached which receives the regnant woman and advises her in depth on all the possi- of pregnancy abroad. E ilities for care for the child.

I-4710

Does the prohibition of the distribution of 'Do the Treaty provisions on the freedom to information fall within the scope of Articles provide services preclude a Member State 59 and 60 of the EEC Treaty? where abortion is prohibited both by the Constitution and by criminal law from prohibiting anyone, whether he be the provider of the service or a person completely independent of the provider of the service and irrespective of his nationality or place of establishment, from providing women residing in that State, regardless of 16. Articles 59 and 60 of the EEC Treaty their nationality, with assistance with a view have been directly applicable since the to the termination of pregnancy, more expiry of the transitional period. 12 The fact specifically through the distribution of that the Member States' legislation on the information about the identity and location medical termination of pregnancy has not of and the manner of communication with been approximated, as is mentioned by the clinics established in another Member State national court in the second question, does where abortions are performed, even though not stand in the way of the direct applica- the services of medical termination of bility of the Treaty provisions. pregnancy and the provision of information relating thereto comply with the law in 12 — See the judgment of 3 December 1974 in Case 33/74 van force in that other Member State?' Bimbergen [1974] ECR 1299.

I-4711

OPINION OF MR VAN GERVEN —CASE C-159/90

17. As the Court has consistently held, 1 3 covered by the free movement of goods, Article 59 of the EEC Treaty requires the persons and capital.' abolition of any restriction which has the aim or effect of treating a provider of services established in a Member State other than the Member State where the service is In paragraph 16, the Court drew the provided less favourably on account of his following conclusion from this: nationality or of his place of establishment than a provider of services who is estab- lished in that Member State.

I-4712

SOCIETY FOR THE PROTECTION OF U N B O R N CHILDREN IRELAND

In the judgment in GB-Inno-BMi5 the Moreover, such an interpretation of Court emphasized, in connection with Community law is consistent with Article 10 offering goods for sale, the interest of of the European Convention on Human consumer information. It stated (in Rights ('the European Convention'), the paragraph 8) that consumers' freedom to underlying principles of which the Court shop in another Member State is accepts as forming part of the Community compromised if they are deprived of access legal order, and with Article 5 of the in their own country to advertising available European Parliament's Declaration of in the country where purchases are made. I Fundamental Rights and Freedoms. I 6 can see no reason why the position should According to those provisions, everyone has be otherwise with regard to information the right, subject to restrictions prescribed provided about a service: individuals' by law, 'to receive and to impart infor- freedom to go to another country in order mation and ideas without interference by to receive a service supplied there may also public authority and regardless of frontiers' be compromised if they are denied access in (European Convention on Human Rights, their own country to information Article 10(1)). The protection afforded by concerning, in particular, the identity and that provision is aimed in particular at infor- location of the provider of the services mation intended to influence public opinion a n d / o r the services which he provides. but also applies to 'information of a commercial nature'. 1 7 These provisions will be dealt with more extensively later (section 34 below).

I-4713

O P I N I O N OF MR V A N GERVEN — CASE C-159/90

natory measures. One explanation for the sociated himself with the view already emphasis on discrimination in the cases adopted by a number of advocates doubtless lies, according to M r Advocate general. 23 General Jacobs in his recent Opinion in Säger, 20 in the fact that most of the cases are concerned with a situation in which the provider of services has moved to another Member State where he is confronted with national rules which affect the provider of services from another Member State more severely than the domestic provider and, as a result, they have a 'discriminatory' (that is I entirely agree with this view.

Warner in the Debauve and Coditel cases [(1980] ECR 860, at 870 to comply with the often detailed legislation of 873, and 905), who reached that conclusion on the basis of each Member State where the service a thorough analysis of the Treaty provisions, the Opinion of Advocate General Sir Gordon Slynn in Webb [(1981] ECR 3328, at 3330 to 3333), who refers in particular to Article 65 of the EEC Treaty, from which it appears that 20 — Opinion delivered on 21 February 1991 in Case C-76/90 Article 59 also covers restrictions other than restrictions Säger v Dennemeyer, not yet published in the European entailing discrimination on grounds of nationality or place Court Reports. of residence, and the Opinion of Mr Advocate General 21 — Section 24 of the Opinion, where reference is made to P. Lenz in the cases on tourist guides to which I have already J. G. Kapteyn and P. VerLoren van Themaat, Intro- referred (sections 26 to 30).

I-4714

SOCIETY FOR THE PROTECTION OF UNBORN CHILDREN IRELAND

In addition, now the prohibition of discrimi- another Member State just as they derive nation has already been so broadly stretched the right therefrom to distribute such infor- in the case-law of the Court that it covers a mation, whether or not for remuneration. situation in which providers of services from one Member State are placed, as a result of a disparity between the legislation of the Member States concerned, in a less Imperative requirements of public interest favourable position in so far as they are which may justify limitations on the freedom subjected as a result of that disparity to a to supply services heavier burden if they should wish to exercise their trade or profession in another Member State. 24 If the broad interpretation of Article 59 which is advocated herein is accepted, a more heavy burden of that kind 22. The Court has consistently held, in will naturally be regarded as a barrier, particular in its judgment in Webb 2b (in without its being necessary to place undue paragraph 17, which refers to the judgment emphasis on the prohibition of discrimi- in Van Wesemael27), that nation. 25

I-4715

OPINION OF MR V A N GERVEN —CASE C-159/90

'must be objectively justified by the need to which, as a result of a disparity in legis- ensure that professional rules of conduct are lation, may constitute a heavier burden for complied with and that the interests which providers of services from other Member such rules are designed to safeguard are States and are in that sense 'discriminatory': protected' (paragraph 27), see section 20 above). National rules which are per se (overtly or covertly) discrimi- natory as regards providers of services from other Member States may also, under Article 56(1) in conjunction with Article 66 to which it added the further proviso that of the EEC Treaty, be justified 'on grounds of public policy, public security or public health'. 3 0

'the same result cannot be obtained by less restrictive rules' (paragraph 29).

23. There is a great temptation to draw a parallel between the case-law which has Recently in the 'tourist guide' judgments 2 9 been cited on the supply of services and the the Court restated the case-law as follows: case-law relating to imperative requirements (Article 30 of the EEC Treaty) or grounds of public interest (Article 36 of the EEC Treaty).

'The requirements are therefore to be regarded as compatible with Articles 59 and 60 of the Treaty only if, in the sphere of the activity in question, there appear to be grounds of public interest justifying the restrictions on the freedom to provide In view of the complexity of the subject- services, that interest is not already safe- matter I shall have no difficulty in resisting guarded by the rules of the State of estab- this temptation and shall confine myself to a lishment and the same result cannot be few observations designed to place the achieved by less restrictive rules.' concept of imperative requirements of public interest in the general context of Community law.

In both areas (supply of goods and supply are connected with 'national or regional of services) the reasons or grounds which socio-cultural characteristics, [which], in the may justify (as the case may be, discrimi- present state of Community law, is a matter natory or non-discriminatory) national rules for the Member States'. 3 5 In the field of must be justified under Community law. In trade in goods, this found expression in the the case of the free movement of goods, the Cinéthèque judgment 3 6 (where an objective Court will adhere, as regards the 'Article 36' of a cultural nature, namely promotion of justifications, to the exhaustive list set out in the film industry, was involved) and in the the Treaty, while, as regards the 'Article 30' various 'Sunday-trading' judgments 37 imperative requirements, the Court accepts (which were concerned with the distribution in its case-law a limited set of unvarying of working and rest days and hence with a reasons (namely consumer protection, fair socio-recreational objective). As far as the trading practices and market transparency, provision of services is concerned, an indi- environment protection, protection of cation was therefore already apparent working conditions, effectiveness of fiscal earlier in judgments such as Koestler}* supervision). In contrast, in the sphere of (in which a non-discriminatory national the freedom to supply services, the Court measure which precluded the recovery by appears — leaving aside the grounds legal action of debts arising out of a mentioned in Article 56 in conjunction with wagering contract for reasons founded on Article 66 — to have delimited the cluster of the 'social order', and therefore on grounds imperative requirements of public interest of an ethical/political nature, was held to be less precisely. Nevertheless, here too the acceptable) and Debauve (in which a grounds in question are similar to those set national ban which was applicable 'without out in Article 36 (protection of intellectual distinction' to cable television advertising on property 3 1 and of artistic and archaeological grounds of the general interest — the ban treasures 32 ) a n d / o r to the grounds coming was intended essentially to ensure the under Article 30 (protection of workers 3 3 survival of a pluralistic written press 39 — and consumers, in particular policy- was held to be justified). holders 34 ).

contemporary society in which the auth- public interest which are consistent with or orities have responsibility for the public not incompatible with the aims laid down in interest in all kinds of policy areas, many of the Treaty provisions, and whether that rule which are not covered, or only covered has no effects beyond those which are indirectly, by Community law. The necessary and, in particular, is not dispro- important point is that attention is paid to portionate, that is to say whether it satisfies ensuring that such public interest aims and the test of the principle of proportionality. the practical effects of the general national rules prompted by those aims are compatible with Community law. Hence the Court's emphasis on the need for the national rule to pursue aims which are justified under Community law, which means that where the rule relates to objectives within the Assessment of a national rule prohibiting the scope of Treaty provisions, it should be in distribution of information concerning keeping with the objectives pursued by those medical abortion services provisions or, where it relates to objectives outside the scope of the Treaty, it may not be directed against objectives pursued by Treaty objectives, in particular the estab- lishment of a single market. Hence, too, the emphasis placed by the Court on the requirement, in order to check that the 25. As I pointed out earlier, the national national rule does not conflict with the rule at issue sets out a general prohibition, Community aim of free trade, that it should which in no respect discriminates on go no further than is objectively necessary grounds of nationality or place of estab- in order to attain the interest which it lishment, on distributing in the Member pursues, which presupposes that that interest State concerned information affording is not already safeguarded by a rule having assistance to potential recipients residing in the same objective in the Member State of that Member State about services of medical origin (of the product or of the provider of termination of pregnancy lawfully the service) and that the same result could performed in another Member State, not be achieved as well using means which services which I have accepted as falling in restrict the Community interest less. principle within the scope of Articles 59 and 60 of the EEC Treaty.

words, two rules which stem from funda- the EEC Treaty (a ground which can even mental rights come into conflict in this case: justify discriminatory measures), in other the freedom of the defendants in the main words, according to the definition which proceedings to distribute information, which has been adopted by the Court, 'a genuine I have accepted as being the corollary of the and sufficiently serious threat to the Community freedom to provide services requirements of public policy affecting one vested in the actual providers of the services of the fundamental interests of society'. 40 (see section 19 above), and the prohibition Although the scope of the concept of public to assist pregnant women, by providing policy 'cannot be determined unilaterally by information, which, according to the Irish each Member State without being subject to Supreme Court, results from the consti- control by the institutions of the tutional protection of unborn life. Community', nevertheless, as 'the particular circumstances justifying recourse to the concept of public policy may vary from one country to another', it is necessary 'to allow the competent national authorities an area of discretion within the limits imposed by the Treaty and the provisions adopted for

However, it is not sufficient for a national rule to be in pursuance of an imperative requirement of public interest which is justified under Community law, it must also not have any effects beyond that which is necessary. In other words, it must comply with the principle of proportionality. Without prejudice to the question which I shall be considering later with regard to 40 — Judgment of 27 October 1977 in Cise 30/77 Regina v Bouchereau [1977] ECR 1999. fundamental rights and freedoms (section 32 41 — Regina v Bouchereau, paragraphs 33 and 34, which refer to below), such an objective is justified under the Court's judgment of 4 December 1974 in Case 41/74 Van Duyn v Home Office [1974] ECR 1337, at 1350. Community law, since it relates to a policy 42 — Per Mr Advocate General Darmon in his Opinion choice of a moral and philosophical nature (paragraph 21) in the Groener case (judgment of 28 November 1989 in Case C-379/87 Groener v Minuter the assessment of which is a matter for the of Education [1989] ECR 3967) which was concerned Member States and in respect of which they with a constitutional provision recognizing an official language of the State. are entitled to invoke the ground of public 43 — As held by the Court in connection with the concept of policy referred to in Article 56 read together public morality in the judgment of 11 March 1986 in Case with Article 66 (and also in Article 36) of 121/85 Conegate v HM Customs & Excite [1986] ECR 1007, paragraph 14.

T h a t principle has two aspects. First, in and to the facts of the case; on the under order for a national rule to be justified standing, however, that the Court must under Community law it must be objectively adhere strictly to the description of the necessary in order to help achieve the aim national rule and to the facts held in the sought by the rule: that means that it must national proceedings to be relevant and be useful (or relevant) and indispensable, in proven, as they appear in the order for other words, it must not be capable of being reference and in the documents enclosed replaced by an alternative rule which is therewith. equally useful but less restrictive of the freedom to supply services. 4 4 Secondly, even if the national rule is useful and indis pensable in order to achieve the aim sought, the Member State must nevertheless drop the rule, or replace it by a less onerous one, if the restrictions caused to intra- Community trade by the rule are dispropor tionate, that is to say if the restrictions caused are out of proportion to the aim

28. Although it is not for the Court of that aim is intended to effectuate a value- Justice but the national court to rule on the judgment, enshrined in its Constitution, compatibility of a national rule with attaching high priority to the protection of Community law, the Court of Justice must unborn life. Admittedly, such a prohibition provide the national court with all the infor does entail a potential restriction of intra- mation so as to make sure that the Community trade in services, in so far as assessment which it carries out remains the prohibition might possibly decrease the within the limits of Community law which number of pregnant women who might are the same for all Member States. otherwise have gone abroad. As against this, Relevant aspects of Community law include however, the prohibition does not ban all the principle of proportionality, which, in information but only information which is order to be of use to the national court, provided by way of assistance and the aim should be related by the Court as specifi sought is based on a value-judgment as to cally as possible to the relevant national rule the necessity to protect unborn human life which is regarded as fundamental in the 44 — This implies that the national rule must take account of, Member State concerned.

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SOCIETY FOR T H E PROTECTION OF U N B O R N CHILDREN IRELAND

example a ban on pregnant women going examined hereinafter (in section 31), that abroad or a rule under which they would be the Court has jurisdiction to appraise a subjected to unsolicited examinations upon national rule in this way. their return from abroad. However, nothing of this nature is raised in the preliminary questions. The Court has consistently held that

'fundamental rights form an integral part of It could be objected that it appears from the the general principles of law, the observance limited scope of the prohibition that the of which [the Court] ensures. national authorities in question have not taken every possible measure in order to prevent abortions and hence have not them- In safeguarding these rights, the Court is selves given maximum effect to the high bound to draw inspiration from consti- priority attached to the protection of tutional traditions common to the Member unborn life, but such an objection would States, and it cannot therefore uphold not hold good: the national authorities measures which are incompatible with cannot be reproached for keeping the fundamental rights recognized and measures which they have taken to protect protected by the Constitutions of those unborn life within certain proportions, since States. Community law itself imposes a requirement of proportionality upon them. The auth- orities' decision to concentrate the prohibition on practices — namely in this Similarly, international treaties for the case the distribution of information by way protection of human rights on which the of assistance — which they consider Member States have collaborated or of transgress most plainly that high priority which they are signatories, can supply value-judgment seems therefore to me to guidelines which should be followed within satisfy the test of proportionality. the framework of Community law'. 47

In the judgment in Cinéthèque*2 the Court stated as follows with regard to Article 10 of the European Convention on Human A feature of this case-law is that it does not Rights, which is concerned with freedom of confer direct effect in the Community legal expression : order on the provisions of the abovemen- tioned international treaties but regards those treaties, together with the constitu- tional traditions common to the Member States, as helping to determine the content 'Although it is true that it is the duty of this of the general principles of Community law. Court to ensure observance of fundamental This stance enables the Court, in estab- rights in the field of Community law, it has lishing general principles in the particular no power to examine the compatibility with (socio-economic) context of Community the European Convention of national legis- law, also to take into account the imper- lation which concerns, as in this case, an atives of the fundamental freedoms and of area which falls within the jurisdiction of the Community market organizations, the national legislator' (paragraph 26). which are intended to bring about the inte- gration of the market. 50 However, it does not prevent the Court from enforcing these fundamental rights and freedoms introduced In the later judgment in Demirelb} the Court into Community law in the form of general reformulated the last phrase quoted above principles in the same way as it enforces as follows: specific provisions where it is a question of assessing acts of the Community institutions in the light of those principles and declaring those acts void or invalid if the Court finds ' [ . . . the Court] has no power to examine that they are incompatible therewith. the compatibility with the European Convention on Human Rights of national legislation lying outside the scope of Community law' (paragraph 28).

rule was compatible with the requirements On a strict view, that interpretation does of the protection of fundamental rights and not conflict with the view expressed by the added that Court in Cinéthèque. In that case, it was stated that the Court's power of review did not extend to 'an area which falls within the jurisdiction of the national legislator', a statement which, generally speaking, is true. Yet once a national rule is involved which has effects in an area covered by 'those requirements are also binding on the Community law (in this case Article 59 of Member States when they implement the EEC Treaty) and which, in order to be Community rules' (paragraph 19). permissible, must be able to be justified under Community law with the help of concepts or principles of Community law, then the appraisal of that national rule no longer falls within the exclusive jurisdiction

it is regarded as being sufficient for the national rule to lie inside the scope of Community law. The question now is: must it not be assumed that a national rule which 32. If the above reasoning is accepted, it in order to show that it is compatible with must now be considered once again — this Community law has to rely on legal time in the light of the general principles of concepts, such as imperative requirements of Community law with regard to fundamental public interest or public policy — which the rights and freedoms — whether the fact that Court considers may not be determined a general prohibition is in force in the unilaterally by the Member States (see territory of a Member State on the section 26 above) — falls 'within the scope' provision of information by way of

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OPINION OF MR VAN GERVEN —CASE C-159/90

33. T h e national court did not ask the from having an abortion). 5 7 On an earlier Court (see section 13 above) — and there occasion the European Commission of has been no exchange of arguments before Human Rights dismissed a complaint the Court between the parties on the brought by two women on the basis of matter — whether a national rule which Article 8 of the European Convention to the protects the life of the unborn by means of a effect that national legislation under which far-reaching ban on abortion is compatible abortion was permissible only within a with the general principles of Community specified period a n d / o r subject to specified law with regard to fundamental rights and conditions, was to be regarded as an

I European Commission for Human Rights therefore assume that, as far as the has refrained from — and the European prohibition on the provision of information Court of Human Rights has not yet had any which is at issue in this case — which aims occasion for — instructing the individual to preclude the provision of assistance in States to adopt a particular degree of procuring an abortion — is concerned, it cannot be maintained that that prohibition is 56 — See, in this connection, W. Peuken, 'Human eights in international law and the otection of unburn human in furtherance of an objective which, itself, beings', in Protecting Hn:/:tn Rights:

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The question remains whether it is where she can have an abortion. consonant with the general principles of Community law with regard to fundamental rights and freedoms for a Member State to prohibit the provision and receipt of infor- mation by way of assistance about abortions lawfully carried out in other Member States, thereby infringing individuals' freedom of It appears, however, from the wording of expression. It is a question here of balancing Article 10(2) and from the case-law of the two fundamental rights, on the one hand European Court and the European the right to life as defined and declared to Commission of Human Rights that such be applicable to unborn life by a Member restrictions may be imposed on freedom of State, and on the other the freedom of expression by individual States 'as are expression, which is one of the general prin- prescribed by law' (which covers unwritten ciples of Community law on the basis of the law, provided that it is adequately accessible constitutional traditions of the Member to citizens, who must be able to regulate States and the European and international their conduct accordingly, and formulated treaties and declarations on fundamental with sufficient precision; see also section 36 rights, in particular Article 10 of the below) 59 provided that the restrictions are European Convention on Human Rights. 'necessary in a democratic society [. . . ] for the prevention of disorder or crime, for the protection of health or morals, for the protection of the [.

As has already been mentioned (in section 19) it appears from the case-law 59 — See Eur. Coun H. R. The Sunday Times case, judgment of 26 April 1979, Scries A no. 30, pp. 30, 31. of the European Court and the European 60 — See the judgment of the European Court of Human Rights Commission of Human Rights on Article 10 in the case of Markt Intem, cited in footnote 17. of the European Convention that 61 — See, for instance, Eur. Court H. R. The case of Silver and Others, judgment of 25 March 1983, Series A no. 61, commercial information qualifies for pp. 37, 38.

In parallel to Article 10(1) of the European the aim pursued, they constitute a dispro- Convention, Article 5 of the European portionate and intolerable interference with Parliament's Declaration of Fundamental the rights of the owner, impinging upon the Rights and Freedoms provides that everyone very substance of the right to property' has the right to freedom of expression, (paragraph 23). which includes 'freedom of opinion and the freedom to receive and impart information and ideas, particularly philosophical, political and religious [, regardless of frontiers] *'. By virtue of the general limits set out in Article 26, this freedom may be 'restricted within reasonable limits necessary in a democratic society only by a law which must at all events respect the substance of such rights and freedoms'. I assume that the Court, in accordance with its general approach with regard to questions arising in connection with funda- mental rights (see section 30 above), as regards the application of the principle of proportionality, will take into account in

In (implementation of structural policy the context of the issues under discussion measures in the context of a market organ- here and having regard to these main ization) and the right to property elements, I consider that the following guaranteed by the general principles of points should be considered on the basis of Community law. In assessing the (in that the principle of proportionality. First, does case, Community) rule, the Court examined the prohibition on the provision of infor- whether the restrictions introduced thereby mation which is at issue pursue a legitimate could be regarded as lawful (paragraph 22 aim of public interest which fulfils a of the judgment) and whether they corre- imperative social need? Secondly, is that aim sponded being realized using means which are necessary (and acceptable) in a democratic society in order to achieve that aim? Thirdly, are the means employed in proportion to the aim pursued and is the fundamental right concerned, in this case freedom of expression, impinged upon as a 'to objectives of general interest pursued by result? the Community or whether, with regard to 63 — See, for instance, with regard to the meaning of the word * Translators note: the phrase in square brackets was omitted 'necessary' in Article 10(2) of the European Convention from the English version of the declaration. on Human Rights, van Dijk and van Hoof, cited in 62 — Cited in footnote 50. footnote 56, pp. 588-589 of the English edition.

After declaring the applications to be admissible by decision of 15 May 1990, the European Commission of Human Rights adopted a report on 7 March 1991 on the However, it appears from the report of the substance. However, the report provides European Commission that — since in its little guidance concerning the application of judgment of 16 March 1988 in the Open the principle of proportionality. It is true Door Counselling case the Irish Supreme that the European Commission did hold Court has laid down in a sufficiently that there was a restriction of the freedom accessible and precise manner the conse- of expression guaranteed by Article 10(1) of quences of Article 40, s. 3, sub-s.3 of the the European Convention and that Anicie Irish Constitution — the national pro- 10(2) was inapplicable, but it based its hibition in question now 64 is sufficiently decision (paragraph 52 of its report) on the 'prescribed by law' (namely by a now estab- consideration that the restriction in question lished unwritten rule of common law). As a was not 'prescribed by law' 'at the material result, it is not necessary to go into that time', that is to say 'prior to the Supreme point here. Court judgment' (of 16 March 1988). This is true both of those paragraphs (44 to 53) of the report which relate to the applications of two counselling centres and of two employees of one of those centres and of those paragraphs (54 to 57) which relate to the applications of two individual (but not pregnant) women. As far as the first two 37. Whereas no special difficulties arise in applications are concerned, the Irish connection with the formulation of the Government conceded that there was a principle of proportionality (see section 35 restriction within the meaning of Article above), its application raises quite another 10(1) of the European Convention; question: that of the extent of the Member however, it denied that there was any such States' discretion in assessing what is a restriction as regards the second category of necessary and proportional — and therefore applications. As regards both categories of application, the European Commission of 64 — Now, that is to say, at the time of the facts at issue in the main proceedings, in which the plaintiff, the SPUC, speci- Human Rights accepts that freedom of fically relied on the Supreme Court's judgment of 16 March 1988 in order to bring its action against the expression (including the freedom to receive defendants (see sections 3 and 4 above).

permissible — restriction of one of the As far as the protection of unborn life is fundamental rights, such as those protected concerned, such a uniform moral by Articles 8 t o 11 of the European conception is lacking (except as regards Convention. In the case-law of the respect for the mother's right to life), as European Commission and Court of between the Member States and within each Human Rights the answer given to this Member State, as regards the conditions question depends very much on the subject- under which abortion is or should be matter at issue. 65 permitted and likewise there is no case-law of the European Commission or (subject to the reservation concerning the mother's right to life) of the European Court of Human Rights to serve as a guide (see section 33 above). This is also clear from the numerous individual opinions of The question is all the more delicate when it members of the European Commission is a matter, as in this case, of assessing two appended to the report discussed in section fundamental rights which are as sensitive as, 36 above, which express conflicting views on the one hand, freedom of expression, on this point. 67 whose fundamental nature in a democratic society is stressed by the European Court of Human Rights, and, on the other, the right to life, as it is applied to unborn life in the Member State in question on the basis of a fundamental ethical value-judgment enshrined in Constitution. As far as ethical In those circumstances, I consider that with value-judgments are concerned, however, respect to the case at issue the individual the European Court of Human Rights has States must be allowed a fairly considerable consistently held that, in the absence of a margin of discretion. This follows too from uniform European conception of morals, the case-law of this Court as regards the area of discretion allowed to each Member State in determining, within the limits set by Community law, what is to be understood by public policy and public morality. It is for each Member State to define those concepts in accordance with its 'own scale '[b]y reason of their direct and continuous of values' (see section 26 above). contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements [of the protection of morals] as well as on the "necessity" of a "restriction" or "penalty" 38. It remains for me to examine, in intended to meet them'. 6 6 relation to the actual national rule at issue, whether a Member State is entitled to take 65 — See van Dijk and van Hoof, cited in footnote 56, at the view, within the limits of its fairly pp. 583 to 606 of the English edition, in particular at pp. 604 to 606. 66 — See Eur. Court H.R. Handyside caie, judgment of 67 — Three members take the view, as regards the issue of 7 December 1979, Series A no. 24, p. 22; see also Eur. necessity and proportionality, that the prohibition on the Court H.R. Müller and Others v Switzerland, judgment of provision of informaüon is not a permissible restriction, 24 May 1988, Series A no. 133, paragraph 35. tour members consider that it is permissible.

As far as the requirement is concerned that the restriction imposed must be necessary in a democratic society in order to achieve the aim pursued, I take the view, having regard to what has been said in the previous section and to the description given of the national rule and of the factual background in the request for a preliminary ruling, 70 that the The legitimacy of the aim pursued by the relevant national authorities are entitled to prohibition on the provision of information consider that a prohibition on the provision which is at issue is not in question in these of information by way of assistance is proceedings (see section 33 above). necessary in order to effectuate the value- Moreover, that is disputed in none of the judgment contained in the Constitution with opinions appended to the report of the regard to the need to protect unborn life. In European Commission of Human Rights view of the limited nature of the prohibition discussed above (in section 36), since even (see below) and of its basis, that is to say, a those members of the European constitutional provision on unborn life Commission who considered that the which was adopted after a referendum, it national rule was incompatible with Article appears to me that the national authorities 10(2) of the European Convention as a are entitled to take the view that the result of the application of the principle of prohibition is acceptable in a democratic proportionality 68 regarded the protection of society. morality as a permissible justification. In my estimation, the correct justification under 69 — See the Court's definition of public policy: section 26 general principles of Community law is above. In the European Convention on Human Rights that expression is not unambiguous: see van Dijk and van public policy and/or public morality, Hoof, cited in footnote 56, English edition, p. 584 et seq. because the rule at issue here is justified by 70 — In its assessment the Court is not entitled to take into consideration factual arguments, such as those adduced by an ethical value-judgment which is regarded the defendants in the main proceedings — namely to the effect that the result of the prohibition on the provision of information is that abortions are carried out at a later 68 — H. G. Schermers, paragraph b of his 'concurring stage in the pregnancy involving more risks to the opinion'; Sir Basil Hall, paragraph 9 of his 'partly woman's health — , which the national court did not bring concurring and partly dissenting opinion'. to the Court's notice as being established facts.

Also as regards the requirement for the accordance with the law in force in that relevant national rule not to be dispropor- second Member State. It appears from the tionate to the aim pursued, the national above examination that this conclusion is authorities were, in my view, entitled to not incompatible with the general principles assume that that is the case with a of Community law with regard to funda- prohibition such as that at issue here, which, mental rights and freedoms. according to the information brought to the Court's notice, is confined to prohibiting the provision of information by way of assistance and does not prevent the provision of other information, which does not impede the freedom to express opinions about the permissibility of abortion and 40. In the light of that conclusion I can deal does not extend to measures restricting the freedom of movement of pregnant women quite briefly with the argument that the or subjecting them to unsolicited examin- defendants in the main proceedings seek to ations. derive from Article 62 of the EEC Treaty. Article 62 provides as follows: 'Save as otherwise provided in this Treaty, Member States shall not introduce any new restrictions on the freedom to provide services which have in fact been attained at the date of entry into force of [the EEC] Treaty'. The defendants in the main Decision and discussion of Article 62 of the proceedings consider that that provision of EEC Treaty the Treaty has a bearing on the interpret- ation of the provision introduced into the Irish Constitution in 1983 on which the Irish Supreme Court based the prohibition on the distribution of information which is at issue in this case. In their view, that 39. In view of the foregoing, I consider that constitutional provision may not be inter- the Treaty provisions with regard to the preted so as to give rise to a new restriction freedom to provide services do not prevent on the provision of services relative to the a Member State where the protection of position when Ireland acceded to the unborn life is recognized in the Constitution Community. and in its legislation as a fundamental principle from imposing a general prohibition, applying to everyone regardless of their nationality or place of estab- lishment, on the provision of assistance to pregnant women, regardless of their nationality, with a view to the termination It is sufficient to observe in this connection of their pregnancy, more specifically that Article 62 cannot apply to national through the distribution of information as to rules containing a restriction on the the identity and location of and method of provision of services, such as the prohibition communication with clinics located in on the provision of information at issue in another Member State where abortions are this case, which fall outside the scope of carried out, even though the services of Articles 59 and 60 of the EEC Treaty for medical termination of pregnancy and the the imperative reasons of public interest information relating thereto are provided in mentioned earlier. The position would be

For the sake of completeness. I would point out that Article 62 of the EEC Treaty, like for that matter Article 53 of the EEC Treaty In my view Article 62 of the EEC Treaty on the right of establishment, must be in- has the same aim as Article 32, that is to say terpreted in the same way as the first to prevent Member States from making paragraph of Article 32 of the EEC Treaty. measures which had to be abolished at the Under that provision Member States are to very latest, by the end of the transitional refrain from making more restrictive quotas period more restrictive in the course of that and measures having equivalent effect which period. Since the end of the transitional were in existence at the date when the period, Article 59 of the EEC Treaty, which Treaty entered into force. In its judgment in requires the abolition of restrictions on the Motte71 the Court held as follows in that freedom to supply services, has had direct regard : effect. 72 Since then, Article 62 adds nothing more to the Treaty provisions on services. For those reasons too, the argument of the 'The sole purpose of that provision was to defendants in the main proceedings based prevent the Member States from making on Article 62 cannot succeed.

Proposed answers

4 1 . I t h e r e f o r e propose that the C o u r t s h o u l d answer the questions put by the national c o u r t in the following t e r m s :

' 1 . T h e medical operation, n o r m a l l y p e r f o r m e d for r e m u n e r a t i o n , by which the p r e g n a n c y of a w o m a n c o m i n g from a n o t h e r M e m b e r State is terminated in compliance with the law of t h e M e m b e r State in which the o p e r a t i o n is carried o u t is a (cross-border) service within the meaning of Article 60 of the E E C Treaty.