C-112/00

2 — See, inter alia: Protocol No 9 to the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded, OJ 1994 C 241, p. 361; Decision No 1692/96/EC of the European Parlia- 2. The primary transit routes between ment and of the Council of 23 July 1996 on Community guidelines for the development of the trans-European northern Italy and southern Germany — transport network, in particular sections 2.3, 2.8 and 2.10 of Annex I; Case C-205/98 Commission v Austria [20001 which also carry much of the traffic ECR I-7367, in particular at paragraph 5 et seq. of the between Italy and northern Europe as a Opinion of Advocate General Saggio; and the Report from the Commission to the Council on the Transit of Goods by whole — pass through the Alps. The Road through Austria (COM(2000) 862 final). mountainous nature of that region both 3 — See Council Decision of 26 February 1996 concerning the conclusion of the Convention on the protection of the Alps limits the number of routes available and (Alpine Convention), OJ 1996 L 61, p. 31. The convention was signed in Salzburg on 7 November 1991 and entered into force on 6 March 1995. It has been signed by the Community and by a number of Member States and non-member countries in the Alpine region, including 1 — Original language: English. Austria, Germany and Italy.

I - 5662

SCHMIDBERGER

5. In addition, there is a system of 'eco- points' 6controlling and limiting road use and NOx (nitrogen oxide) emissions by heavy goods vehicles transiting through the country, and it appears that tolls on the Brenner motorway are considerably higher at night. Vehicles over 7.5 tonnes may not at any time use the national highway which runs parallel to that motorway, but a rail 'the objective is to reduce the volume and dangers of inter-Alpine and trans-Alpine 5 — Similar bans exist in six other Member States, although traffic to a level which is not harmful to those in Austria appear to be the most severe (see Proposal humans, animals and plants and their for a Council Directive on a transparent system of harmon- ised rules for driving restrictions on heavy goods vehicles habitats, by switching more traffic, in involved in international transpon on designated roads, COM(1998) 115 final, OJ 1998 C 198, p. 17, and the particular freight traffic, to the railways in Commission's explanatory memorandum thereto). particular by providing appropriate infra- 6 — Originally agreed upon between the Community and Austria in 1992 and now governed by Commission structure and incentives complying [with] Regulation (EC) No 3298/94 of 21 December 1994 laying market principles, without discrimination down detailed measures concerning the system of Rights of Transit (Ecopoints) for heavy goods vehicles transiting on grounds of nationality'. 4 through Austria, established by Article 11 of Protocol No 9 to the Act of Accession of Norway, Austria, Finland and Sweden, OJ 1994 L 341, p. 20, as amended by Commission Regulation (EC) No 1524/96 of 30 July 1996 amending Regulation (EC) No 3298/94, with regard to the system of 4 — A more detailed Protocol on the Implementation of the the ecopoints for heavy goods vehicles transiting through Alpine Convention in the field of Transport was adopted in Austria, OJ 1996 L 190, p. 13; see also Proposal for a May 2000, and on 16 January 2001 the Commission Regulation of the European Parliament and of the Council presented a proposal for a Council Decision to the effect establishing an ecopoint system applicable to heavy goods that it should be signed on behalf of the Community vehicles travelling through Austria for the year 2004, (COM(2001)18 final). COM(2001) 807 final, OJ 2002 C 103 E, p. 230.

6. Eugen Schmidberger Internationale Transporte Planzüge ('Schmidberger') is a 9. The relevant local authorities found no transport undertaking of modest size, based legal reason to ban the proposed demon- at Rot an der Rot in southern Germany, stration — although they do not appear to whose lorries apparently carry essentially have examined in depth the possible Com- steel and timber between that area and munity-law dimension to the question — northern Italy, using the Brenner motor- and thus allowed it to go ahead. It appears way. It seems that they meet the noise that there was cooperation between those emission standards which exempt them authorities, the police, the organisers of the from the night-time ban in Austria. demonstration and motoring organisations with a view to limiting the disruption caused. The demonstration was widely publicised and it appears that alternative (but longer) routes 7were suggested and extra trains were provided to allow trans- port undertakings to use 'rolling road' facilities along the Brenner axis, although the details of those measures have not been made entirely clear to the Court. 7. On 15 May 1998, Transitforum Austria Tirol, an environmental protection associ- ation, gave notice to the competent Aus- trian authorities in accordance with the applicable Austrian legislation of its inten- tion to hold a demonstration on a stretch of the Brenner motorway adjacent to the 10. In the event, the motorway was closed Italian border, which would block the route to all traffic from 9 am on 12 June until between 11 am on Friday 12 June and 3 pm 3.30 pm on 13 June, and reopened to heavy on Saturday 13 June 1998. It has been goods traffic (provided that it met night- pointed out that in addition Thursday 11 June was a public holiday in Austria that year, and normal weekend restrictions 7 — One alternative route mentioned during the proceedings, via the Tauem motorway, would appear to add about 240 km were of course in force on Saturday 13 and (some 55-60%) to a journey between Munich and Verona; the difference in each case would of course depend on the Sunday 14 June. actual starting-point and destination.

' 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, 12. In defence, the Austrian State argued to be interpreted as meaning that a essentially that the authorities took a Member State is obliged, either abso- reasonable decision after weighing up the lutely or at least as far as reasonably various interests involved. They had con- possible, to keep major transit routes cluded correctly that the demonstrators' clear of all restrictions and impedi- inalienable democratic right to freedom of ments, inter alia, by requiring that a assembly could be allowed expression in political demonstration to be held on a this case without any serious or permanent transit route, of which notice has been obstruction of long-distance traffic. given, may not be authorised or must at

I - 5665

OPINION OF MR JACOBS — CASE C-112/00

3. Where a national authority decides that 5. Is there loss giving rise to a claim there is nothing in the provisions of founded on State liability where the Community law, in particular those person incurring the loss can prove that concerning the free movement of goods he was in a position to earn income, in and the general duty of cooperation the present case from the international I - 5666

SCHMIDBERGER

transport of goods by means of the ments, and the Commission. Oral observa- heavy-goods vehicles operated by him tions were also submitted at the hearing on but rendered idle by the 28-hour dem- behalf of the Finnish Government. onstration, yet is unable to prove the loss of a specific transport journey?

6. If the reply to Question 4 is in the negative: Admissibility — National rules concerning proof of damage — Questions 5 and 6

I - 5667

OPINION OF MR JACOBS — CASE C-112/00

18. There are two aspects to the issue or States may be liable in damages to an bundle of issues raised here: there is, on the injured party for breach of Community one hand, the question of the admissibility law. The rules governing that liability have of the request for a preliminary ruling and, been further explained in a number of cases on the other, that of the compatibility with — perhaps most comprehensively in Brass- Community law of a national rule or rules erie du Pêcheur 9— as being analogous to which might entail the dismissal of a claim those governing the non-contractual liabil- for damages without a full examination of ity of the Community under Article 288 EC the substance of the claim. The point is as elaborated in the Court's case-law. 10 raised by the Austrian Government in the context of the national court's question 5, and it also seems relevant to question 6. I shall therefore examine questions 5 and 6 immediately after considering the admissi- bility of the order for reference itself, since the issues are closely intertwined.

21. Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach 19. Before examining those issues, how- of the obligation resting on the State and ever, it will be helpful to recall briefly the the loss sustained by the injured party. 11 Court's relevant case-law.

23. It is for each Member State's legal system to set the criteria for determining the extent of reparation, which must how- ever be commensurate with the loss or damage sustained to ensure effective pro- tection for the rights of the injured party. The criteria must not be less favourable The order for reference and submissions than those applying to similar claims based on domestic law and must not in practice make it impossible or excessively difficult to obtain reparation. The national court may inquire whether the injured party showed reasonable diligence to avoid or limit the loss or damage, but loss of an 25. Question 5 in the order for reference opportunity to make a profit may not be asks essentially whether, in that context, an totally excluded as a head of damage for operator in Schmidberger's position must which reparation may be awarded since, be able to claim reparation if he can prove especially in the context of economic or that he would have been in a position to commercial litigation, that would make earn income in the absence of the alleged reparation practically impossible. 13 breach of Community law (provided of course that the breach itself can be estab- lished) but cannot prove that the breach in fact prevented him from earning specific income. In its reasoning the referring court further makes clear its uncertainty as to the rules of Community law which govern the assessment of quantum of damages: is it 24. Thus, a right to reparation is conferred permissible for national law to limit repar- by Community law where three conditions ation to specific damage which can be are fulfilled. The enforcement of that right identified and quantified or may relief be granted also, say, at a fixed rate for stand- still periods during which no profit could 12 — Ibid., paragraphs 66 and 67 of the judgment. have been earned, even if no specific 13 — Ibid., paragraphs 82 to 87 of the judgment; see also Joined opportunity to make a profit can be shown Cases C-397/98 and C-410/98 Metallgesellschaft and Others [2001] ECR I-1727, paragraph 91. to have been lost?

28. Schmidberger asserts that it is in a position to prove that seven specific jour- neys were prevented by the blockage but that, in any event, it must be possible to compensate loss of earnings in an action against the State founded on a breach of Community law. In order to ensure effec- tive protection for the rights of the injured 27. Austria stresses that it is for national person, such compensation may be based law to set the criteria for determining the on fixed rates depending on the length of extent of reparation, provided that the standstill periods during which earnings principles of equivalence and efficiency were impossible. By dismissing the claim in are respected. Austrian law requires the the present case on the basis of national existence of real, not hypothetical, damage rules alone, without examining whether it to be established before a right to repar- was justified in Community law, the first- ation can arise. Schmidberger's case was instance court was circumventing Commu- dismissed at first instance because it had nity law entirely. Such circumvention by not established such real damage. That national courts is a failure in their duty to criterion is applied in the same way to cooperate under Article 10 EC, which claims under domestic law and under requires them to examine Community-law Community law, so there is no question aspects in full, if necessary with reference to of a failure to comply with the principle of the Court of Justice, before they can equivalence. Nor can it be said to render dismiss such a claim.

30. The Court has consistently held that it is for the national court alone to determine the need for a preliminary ruling and the relevance of the questions submitted; where those questions concern the interpretation of Community law, the Court is in prin- (b) Questions 5 and 6 ciple bound to give a ruling. Exceptionally, it may examine the conditions in which the case was referred, in order to assess whether it has jurisdiction, but may not refuse to rule on a question referred unless it is quite obvious that the interpretation sought bears no relation to the real nature or purpose of the main action, where the problem is hypothetical, or where the Court does not have before it the factual 32. These questions relate to the appli- or legal background necessary to give a cation of national rules concerning the useful answer. 14 Here the Austrian Gov- substantiation of damage suffered, particu- ernment is alleging, essentially, that the larly in so far as they may have the effect of problem is hypothetical. precluding further examination of a claim for reparation under Community law.

14 — See, for a recent ruling to that effect, the judgment of 19 February 2002 in Case C-35/99 Manuele Arduino, not 15 — See for example Case C-236/98 JämO [2000] ECR I-2189, yet published in the ECR, paragraphs 24 and 25, together paragraphs 28 to 34, in particular at paragraphs 30 and with the case-law cited there. 32, together with the case-law cited there.

I - 5671

OPINION OF MR JACOBS — CASE C-112/00

33. As pointed out above, such claims are ticular kind of damage. If they do so, they governed by national law, subject only to may not be applied, either before or after the principles of equivalence and effective- the other Community-law aspects are con- ness. Since there is no suggestion of dis- sidered. crimination in connection with either the remedies available or the procedure involved, the principle of equivalence is not in issue. It will be sufficient to consider whether the principle of effectiveness is observed. The following points may assist the national court in its examination.

I - 5672

SCHMIDBERGER

effect of the national rule or rules which requisite facts which substantiate a claim may hinder the pursuit of that claim. 17 and to present full and correct argument might preclude examination of the Com- munity-law aspect do not seem to me relevant where such specific allegations are concerned. If a plaintiff bases a claim on the cancellation of identifiable contracts, it is difficult to see how a 37. None the less, it is clear that any trader requirement that he plead his case and prevented from carrying on his business present evidence fully and correctly can in suffers economic loss and must in principle any way make it excessively difficult to be able to obtain reparation therefor. If assert that claim. Schmidberger was prevented from carrying on its business as a result of a breach of Community law of the requisite kind by the Austrian authorities, it is not permissible for Austrian law to preclude reparation.

I - 5673

OPINION OF MR JACOBS — CASE C-112/00

written statement from its tax adviser, on as for example in San Giorgio, 18 in which the ground both that such a statement the Court held that where a charge had would not be an expert report but an been levied contrary to Community law a account of the adviser's knowledge and presumption or rule of evidence requiring belief, unconfirmable without supporting the taxpayer to prove, in order to obtain evidence, and that it should in any event be repayment, that the charge had not been made directly and orally to the court in passed on to other persons, or excluding accordance with the principles of Austrian evidence of certain kinds, was not permis- civil procedure. sible.

I - 5674

SCHMIDBERGER

47. In the context of questions of proof, it sufficiently serious breach of a rule of may also be noted that a plaintiff in Community law intended to confer Schmidberger's position must establish a rights on the individual; causal link between the breach in issue and the damage suffered, and considerations comparable to those I have outlined above will apply when assessing the acceptability of any relevant national rules. — such loss or damage includes loss of the opportunity to make a profit where all the other conditions for reparation are met;

48. Finally, if all the conditions for an award of damages are met, it clearly would not be contrary to the principle of effec- tiveness for the national court to take Schmidberger's own conduct into account — national rules which preclude a claim by inquiring whether it showed reasonable for reparation on the basis of such loss diligence in order to avoid the damage or or damage, or which make it imposs- limit its extent, 20 with particular regard to ible or excessively difficult for a plain- the possibility of taking such alternative tiff to establish the existence or extent routes or modes of transport as may have of such damage, may not be applied, been available. either before or after examining the other Community-law aspects;

49. To sum up with regard to questions 5 — however, where in the absence of such and 6: rules the plaintiff is unable to establish the existence of such loss or damage, it is not necessary for the national court hearing the claim to consider the other Community-law aspects;

52. Two initial points, which answer to a large extent questions 2 and 4, may be 50. In its first four questions, the referring made fairly briefly. court seeks guidance on a number of interlinked points which will be relevant if damage and a direct causal link can be established and it has to determine whether the Austrian authorities committed a suffi- ciently serious breach of Community law to incur liability towards Schmidberger. 53. First, as has been pointed out in particular by the Greek Government and the Commission and as the referring court itself notes, national authorities are in any event required to act in accordance with the rules of the EC Treaty. Treaty provisions having direct effect do not have to be specifically enacted in national law. More- over, by virtue of the primacy or supremacy of Community law, they prevail over any 51. First (question 1), it wishes to know conflicting national law. 21 Thus in this whether a Member State is obliged under case any breach of such provisions which Article 28 EC to keep major transit routes may have been committed by the national open to ensure free movement of goods and authorities can arise only out of the fact to what extent it may be required to that the demonstration was allowed to go prohibit political demonstrations blocking ahead and not out of any failure by the those routes; then it asks whether, in the legislature to specify the need to take the factual context of the main proceedings, Treaty into account. either (question 2) the absence of a legis- lative provision requiring the principle of free movement of goods to be taken into account when weighing the right of free- dom of assembly against the public interest or (question 3) the fact that an authority decides that there is nothing in Community 54. Second, although protection of health law to preclude the holding of such a and the environment in the Alpine region is demonstration can constitute a sufficiently serious breach of Community law for a 21—See, for example, Case C-118/00 Larsy [2001] ECR Member State to incur liability; finally I-5063, paragraphs 50 to 53 of the judgment.

(ii) whether such a restriction of the free movement of goods may none the less be justified on the basis of the demon- strators' constitutional rights, and 55. There is thus no need to answer the national court's fourth question in the form in which it is put. However, the possibility for national authorities to rely on consider- ations related to the demonstrators' con- stitutional rights, a matter also raised by the referring court and discussed at some (iii) if a breach of Article 28 et seq. EC can be established, whether that breach 22 — Case C-265/95 Commission v France [1997] ECR I-6959, in particular at paragraphs 31 and 32 of the judgment; see would be sufficiently serious for the also, in a different context, Case 68/88 Commission v Greece [1989] ECR 2965, paragraphs 22 to 28; see for Member State concerned to incur lia- fuller discussion below paragraph 68 et seq. bility for any damages caused thereby.

I - 5677

OPINION OF MR JACOBS — CASE C-1 12/00

Restriction of the free movement of goods taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.

57. Under Article 3(1)(c) EC, the Commu- nity comprises 'an internal market char- acterised by the abolition, as between Member States, of obstacles to the free They shall abstain from any measure which movement of goods...'. could jeopardise the attainment of the objectives of this Treaty.'

58. Article 14(2) EC defines that internal market as 'an area without internal fron- 61. Two issues are relatively straightfor- tiers in which the free movement of goods... ward. is ensured...'.

intended to eliminate all barriers, whether — De minimis direct or indirect, actual or potential, to flows of imports in intra-Community trade. 24 It has also held that measures which delay the movement of goods between Member States have the effect of restricting the free movement of goods. 25 I tend to agree with the Austrian Govern- ment that there cannot be an absolute duty 65. It is generally said that there is no de to ensure that, even on major transit routes, minimis rule in relation to Article 28 EC. goods can pass without hindrance at all But, as I have had occasion to note, 26 the times and at all costs, failure to comply Court has accepted that some restrictions with which always constitutes a breach of may be so uncertain and indirect in their Community law. Delays caused for effects as not to be regarded as capable of example by necessary road repair works hindering trade. I would suggest that they are inherent in road transport, and their may also be so slight and so ephemeral as causes may be unavoidable. The causes of to fall into the same category. It would the temporary blockage of the Brenner seem for example out of the question that a motorway in issue were however not brief delay to traffic on a road occasionally inherent in road transport, and that block- used for intra -Community transport could age was not unavoidable. It follows that the in any way fall within the scope of blockage in issue was in principle capable Article 28. A longer interruption on a of constituting a restriction of the free major transit route may none the less call movement of goods. for a different assessment.

pass through the Brenner corridor each 69. In Commission v France 28 the Court year. 27 Particularly when weekend and assessed the passivity of the French auth- night-time restrictions are taken into orities in the face of violent acts committed account, that represents a non-negligible by private individuals and by protest flow of trade over even a 28-hour period movements of French farmers directed during which the route would normally against agricultural products from other have been open. In addition, it must be Member States and consisting, inter alia, in borne in mind that practically all of Italy's the interception of lorries transporting such terrestrial trade with the rest of the Com- products in France and the destruction of munity must pass through one of the very their loads, violence against lorry drivers, limited number of Alpine routes. threats against French supermarkets selling agricultural products originating in other Member States, and damage to such goods displayed in French shops. 29

67. In that light, if a de minimis rule exists, a blockage such as that in issue constitutes in my view an obstacle to the free move- ment of goods too substantial to fall within it.

tion, to verify whether the measures 73. The Court held, therefore, that 'by adopted are appropriate. 30 failing to adopt all necessary and propor- tionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals', the French Government had failed to fulfil its obligations under Article 28 EC, in conjunction with Article 10 EC (and under the common organisations of the markets in agricultural 71. The Court noted that the incidents in products). question involved serious criminal offences which had taken place regularly over more than 10 years, that the French authorities had been repeatedly reminded of their duty to ensure free movement of goods and that very little preventive or punitive action had been taken even though the authorities 74. It may be added that, following Com- often had foreknowledge of the incidents mission v France — and also some months and the perpetrators could often be ident- after the material time in the present ified. 31 case — the Council adopted Regulation No 2679/98, 33 which clarifies the duties of Member States where the free movement of goods is obstructed by private individ- uals.

prevent any continuation, increase or inten- the Brenner motorway for that period, and sification of the disruption or loss in considers it irrelevant that, in contrast to question. 'Inaction' covers cases when the the French case, no violence was used. Such competent authorities of a Member State, incidents are liable to be repeated with the in the presence of an obstacle caused by approval of the government, as was the actions taken by private individuals, fail to case for the same holiday in 2000. take all necessary and proportionate meas- ures within their powers with a view to removing the obstacle and ensuring the free movement of goods in their territory. 34

78. The other observations submitted to the Court distinguish the two cases. Whilst the blockage of a major transit route does in principle hinder the free movement of 76. When such an obstacle occurs, the goods, the circumstances of the present case Member State concerned must take all are very different from those of Commis- necessary and proportionate measures to sion v France: only a single route was assure the free movement of goods within blocked, on a single occasion and for a its territory in accordance with the Treaty, comparatively short period; neither the and must keep the Commission intention nor the effect was to prevent informed. 35 However, the regulation 'may imports of a particular kind or origin; no not be interpreted as affecting in any way criminal conduct was involved. the exercise of fundamental rights as recog- nised in Member States, including the right or freedom to strike'. 36

restrictions of trade in goods. The inten- where a Member State abstains from tions of those responsible for a restriction adopting the measures required in order or the classification of a restriction within to deal with obstacles to the free movement categories of national law are in principle of goods which are not caused by the State. not relevant. The restrictive effects on intra-Community trade may be the same where a blockage of a major transit route is not specifically directed against foreign products or where it is caused by acts which are allowed by national law. It must moreover be recalled that Article 28 EC 83. None of those submitting observations applies also to measures which hinder deny that the Member States have a general Community trade in goods only poten- duty to keep major transit routes open for tially. It is clear that similar blockages of the free movement of goods. That duty the Brenner motorway may be organised in takes on particular significance in the case the future. Furthermore, I have explained of a Member State straddling the main above why in my view the effects of the intra-Community transit routes between restriction in issue were not insignificant. two other Member States, forming part of the trans-European network. In the present case the Austrian authorities did not pre- vent an obstacle to the free movement of goods caused by private individuals.

81. Iconsider therefore that the differences between Commission v France and the 84. It follows that, even if the authorities' present case should be taken into account behaviour were not to fall directly under mainly at the level of the justification of the Article 28, it would fall at least under blockage in issue (see the analysis below) Article 28 et seq. read in conjunction with and have no direct bearing on the attribu- Article 10 EC. tability of the restriction to the Austrian authorities.

86. Under Article 30 EC, Article 28 does 89. This appears to be the first case in not preclude 'restrictions on... goods in which a Member State has invoked the transit justified on grounds of public necessity to protect fundamental rights to morality, public policy or public security...' justify a restriction of one of the funda- provided that they do not constitute 'a mental freedoms 38 of the Treaty. Such means of arbitrary discrimination or a cases have perhaps been rare because disguised restriction on trade between restrictions of the fundamental freedoms Member States'. Under the Cassis de Dijon of the Treaty are normally imposed not to line of case-law, restrictions which are not protect the fundamental rights of individ- inherently discriminatory must be accepted uals but on the ground of broader general if they are necessary to satisfy mandatory interest objectives such as public health or requirements in the public interest. consumer protection. It is however conceiv- able that such cases may become more frequent in the future: many of the grounds of justification currently recognised by the Court could also be formulated as being based on fundamental rights consider- ations. 39

87. Certain restrictions, for example the widespread weekend and night-time restric- tions of road transport which exist in several Member States (and for which the Commission seeks to lay down certain 90. It is important first to draw a clear harmonising rules), might be justified on distinction between the issue raised by the environmental or health protection present case and those raised by previous grounds. On the other hand, it is clear that cases. there was no legitimate public interest objective to justify the passivity of the French authorities in Commission v France. 38 — Although this term should not be confused with that used in the European Convention on Human Rights whose full title is 'Convention for the Protection of Human Rights and Fundamental Freedoms'. 37 — Case 120/78 Rewe [19791 ECR 649, paragraph 8 of the 39 — See Case C-36/02 Omega, currently pending before the judgment. Court.

93. Prior to ERT the Court had already established that Member States have to and 40 — Case C-260/89 ERT [19911 ECR I-2925. 41 —Joined Cases 60/84 and 61/84 Cinéthèque [1985] ECR 2605. 43 — Case 5/88 Wachauf [1989] ECR 2609, paragraph 19 of the 42 — Case 12/86 Demirel (1987] ECR 3719. judgment.

I - 5685

OPINION OF MR JACOBS — CASE C-112/00

(b) if so, whether the restriction in issue is 98. It cannot therefore be automatically proportionate to the objective pursued. ruled out that a Member State which invokes the necessity to protect a right recognised by national law as fundamental nevertheless pursues an objective which as a matter of Community law must be regarded as illegitimate.

— The objective pursued

99. The present case however is more straightforward. 96. At first sight it might seem excessive and unduly intrusive to question whether a Member State which relies on a particular fundamental right recognised in its national legal order pursues a legitimate public interest objective. 100. It will be recalled that the Austrian authorities invoke the fundamental rights of freedom of expression and freedom of assembly as they are recognised in the Austrian legal order.

significance in that respect.' 44 Article 6(2) of justifying a restriction of a fundamental EU confirms that the Union must respect freedom when it sought to protect the fundamental rights, as guaranteed by the fundamental rights of freedom of assembly Convention and as they result from the and expression of the demonstrators. constitutional traditions common to the Member States. Article 10 of the European Convention on Human Rights guarantees freedom of expression, including 'freedom to hold opinions and to receive and impart information and ideas without interference — Proportionality by public authority and regardless of fron- tiers'. Article 11 of the Convention simi- larly guarantees freedom of peaceful assembly and association. More recently, the rights of freedom of expression and assembly have been reaffirmed in 104. The next question is whether the fact Articles 11 and 12 of the Charter of that the demonstration was permitted can Fundamental Rights of the European be justified in the light of the principle of Union. 45 proportionality.

105. In my view, where a Member State 102. In my view where a Member State invokes the necessity to protect a given seeks to protect fundamental rights recog- fundamental right the normal propor- nised in Community law the Member State tionality test should be applied. The situ- necessarily pursues a legitimate objective. ation is comparable with cases involving Community law cannot prohibit Member national public policy or national public States from pursuing objectives which the security. In both situations the uniform Community itself is bound to pursue. application and the effectiveness of the fundamental freedoms laid down by the Treaty are at stake.

107. In the present case, a number of factors suggest that the Austrian authorities did not overstep the bounds of their margin of discretion and that the authorisation of the demonstration did not create a restric- 109. Second, measures were taken to limit tion on free movement of goods which was the disruption caused. Those measures disproportionate to the objective pur- appear to have been taken in earnest and sued. 4 7 to have involved not inconsiderable deploy- ment of resources, although the details have not been made entirely clear to the Court, and Schmidberger disputes the Austrian Government's assertions as to the avail- ability of 'rolling-road' facilities.

111. Such restrictions might even conceiv- ably have caused reactions leading to greater disruption than was the case for a planned demonstration controlled in coop- eration with the authorities. Allowing that demonstration to go ahead, on the other hand, caused only a temporary obstacle to the free movement of goods; the permanent 114. The decisive test for finding that a flow of trade through the Brenner corridor breach of Community law is sufficiently was not compromised in the same way as serious is whether, in particular in its would have been the case for the protesters' exercise of rule-making powers, the freedoms if they had never been allowed to Member State concerned manifestly and demonstrate. gravely disregarded the limits on its dis- cretion — a matter which is in principle for the national courts to decide. However, the Court has indicated criteria which may be applied. Factors which may be taken into consideration include, inter alia, the 112. In the light of those factors, it is clarity and precision of the rule breached, clearly arguable that there was no breach of the measure of discretion left to the Article 28 EC in the circumstances of the national authorities, whether the infringe- present case. ment and the damage caused was inten- tional or involuntary, and whether any error of law was excusable or inexcusable. A breach persisting after a Court judgment finding its existence, or one which is clear from the Court's case-law, will always be sufficiently serious and, where there is no discretion left to the national authorities, a Sufficiently serious breach breach of Community law will always give rise to liability. 48

— when adequate steps were taken in 117. In my view it follows from the con- advance to ensure that disruption of siderations on proportionality outlined the flow of goods traffic, whilst suffi- above, according to which it is highly cient to ensure that the demonstration doubtful whether in the circumstances of was not deprived of its intended effect, the present case the Austrian authorities was not excessive for that purpose, committed any breach of Community law at all, that any such breach would in any event not be sufficiently serious to trigger Austria's liability. In particular the relatively short duration of the interruption of traffic, its isolated occurrence and the measures taken by the authorities to limit did not constitute a sufficiently serious the disruption caused by the demonstration breach of Community law for the State to show that the Austrian authorities did not incur liability towards any persons sustain- manifestly and gravely overstep their mar- ing loss or damage directly caused by the gin of discretion. demonstration. I - 5690

SCHMIDBERGER

Conclusion

119. In the light of all the foregoing considerations, I am of the opinion that the Court should give the following answers to the questions raised by the Oberlandesgericht Innsbruck:

— Community law requires an action for reparation to be available against the State when a plaintiff can establish that he has suffered loss or damage attributable, by a direct causal link, to a sufficiently serious breach of a rule of Community law intended to confer rights on the individual;

— the specific aim pursued by an authorised political demonstration is of no relevance when determining whether the fact that a Member State's authorities permitted it to go ahead constitutes a sufficiently serious breach of Community law for the Member State to incur liability;

— in the light of the facts of the present case as made available to the Court, the national court would be entitled to find that the authorisation,

— for the purpose of allowing citizens to exercise their rights to freedom of expression and assembly,

— of a demonstration which would block one of a number of major transit routes through the Alps for a period of 28 hours on a single occasion, I - 5692

SCHMIDBERGER

— when adequate steps were taken in advance to ensure that disruption of the flow of goods traffic, whilst sufficient to ensure that the demonstration was not deprived of its intended effect, was not excessive for that purpose,