Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The questions submitted for a preliminary ruling by the High Court, Dublin, (the national court) arose in proceedings brought by The Society for the Protection of Unborn Children Ireland Ltd (hereinafter referred to as the SPUC or the plaintiff in the main proceedings) against a number of persons in their capacity as representatives of one of three students associations, namely the Union of Students of Ireland (hereinafter the USI), the University College Dublin Students Union (hereinafter the UCDSU) and the Trinity College Dublin Students Union (hereinafter the TCDSU).
Factual and legal background
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 life from the moment of conception.
3. The dispute between the SPUC and the representatives of the students associations must be seen in the context of the Irish legislation relating to abortion. Section 58 of the Offences against the Person Act 1861, makes it a criminal offence for the pregnant woman herself or another unlawfully to attempt to procure her miscarriage. Section 59 of that Act also makes it a criminal offence to provide unlawful assistance to that end. On the basis of, inter alia, those provisions the Irish courts have recognized the right to life of the unborn as from the moment of conception.
4. In September 1989 the SPUC drew the attention of the students associations mentioned above to that judgment of the Supreme Court and requested them to undertake not to include in their publications during the 1989/90 academic year information as to the identity and location of and method of communication with abortion clinics. The students associations gave no such undertaking.
5. It was not until after the Supreme Court gave that judgment that the High Court, following on from its judgment of 11 October 1989, decided on 5 March 1990 to refer the following three questions to the Court of Justice for a preliminary ruling:
Jurisdiction of the Court
6. The Commission observes in its observations that it is not clear whether the High Court's preliminary questions are referred in the context of the interlocutory proceedings or in that of the main proceedings.
7. The plaintiff in the main proceedings and the Irish Government take the view that no question of Community law arises in these proceedings. The issue is whether the defendants, that is to say the representatives of the students associations, are entitled to distribute the information in question to pregnant women. Since the information is distributed free of charge and the defendants do not operate as agents for the abortion clinics named by them, no economic activity can be involved within the meaning of Article 2 of the EEC Treaty. They add that, in any event, the provision of information by the defendants took place entirely within Ireland and therefore lacks any cross-border element, as a result of which the Treaty provisions on the freedom to supply services cannot apply.
8. The defendants' view seems to me to be correct. The questions raised by the national court seek to establish whether the activities of abortion clinics constitute services within the meaning of Article 60 of the EEC Treaty and, if so, whether the Treaty provisions on the freedom to supply services preclude a national rule prohibiting the provision of information concerning abortion services carried out in another Member State. The second part of the question therefore relates to the provision of information to pregnant women residing in one Member State who may wish to go to another Member State in order to receive certain services. Construed thus, the questions do not relate to activities whose relevant elements are confined within a single Member State. The prohibition on the provision of information in Ireland may result in a smaller number of women being acquainted with the services performed in the other Member State and therefore making less use of them. This may have an adverse effect on intra-Community trade in services. Consequently, the questions do have a Community-law dimension.
Services within the meaning of Article 60 of the EEC Treaty
9. By its first question the national court wishes to know whether the organized activity or process of carrying out an abortion or the medical termination of pregnancy is to be regarded as a service within the meaning of Article 60 of the EEC Treaty.
10. The SPUC takes the view that the medical termination of pregnancy should nevertheless fall outside the scope of Article 60 on the ground that as a result the life of a third party, the unborn child, is destroyed, which is unlawful in Ireland as a result of the constitutional protection of the life of the unborn and the prohibition of intentional abortion. Abortion is also prohibited in principle in other Member States but permitted, more specifically during the initial period of pregnancy, under particular conditions and circumstances which vary from one Member State to another. Moreover, it appears from the national court's third question that the court has in mind a situation in which the relevant service about which information is provided in Ireland is performed in the other Member State (in this case, the United Kingdom) in accordance with the legal conditions in force there.
Scope and context of the second and third questions
11. By its second question the national court wishes to establish whether, in the present state of Community law, a Member State may prohibit the distribution of specific information about the identity and location of clinics in another Member State where pregnancies are medically terminated and about means of communicating with such clinics. It appears from its connection with the first question that the national court has the provisions on the supply of services in mind. It is therefore a matter of establishing whether a Member State may, consistently with the Treaty provisions on the freedom to supply services, impede access to medical abortion services lawfully carried out in another Member State by prohibiting the provision of information about those services.
12. In its third question the national court asks whether a person in Member State A has a right at Community law to distribute such information about abortion clinics in Member State B when the provision of abortion is prohibited under both the Constitution and the criminal law of Member State A but is lawful under certain conditions in Member State B. It appears from the documents of the main proceedings that the information in question is provided in Member State A by persons who are not paid for providing it and who have no connections with the clinics in Member State B. Do those persons — the 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?
13. It may appear from the above and from what follows that the national court's questions do not have to do directly with the compatibility with Community law of the actual prohibition of the provision of abortions to pregnant women but with the compatibility with Community law of the prohibition on third parties giving assistance, more specifically, information, to pregnant women wishing to undergo an abortion in another Member State. Yet the prohibition of abortion is indirectly relevant, that is to say as the ground justifying the ban on the distribution of information (on this point see sections 26 and 33).
14. I would refer to a further point. As I have already observed, the questions are concerned with medical termination of pregnancy carried out in another Member State in compliance with the laws of that State. I assume that this likewise signifies — as does not appear to be contested in this case — that the information distributed in Ireland by the defendants in the main proceedings complies with the rules which apply in the United Kingdom with regard to the cases in which pregnancies may lawfully be terminated in that country. Indeed, in those Member States where abortion is permitted under certain conditions, there are frequently requirements laid down with regard to advice and counselling, which are designed to prevent abortion becoming routine and commercialized or to ensure that the information is provided only by authorized persons and that the decision to carry out an abortion is taken with knowledge of the facts, that is to say with the necessary advice and counselling.
15. It appears from the foregoing that the second and third questions are closely related to each other and, in conjunction, must read as follows:
Does the prohibition of the distribution of information fall within the scope of Articles 59 and 60 of the EEC Treaty?
16. Articles 59 and 60 of the EEC Treaty have been directly applicable since the expiry of the transitional period. The fact that the Member States' legislation on the medical termination of pregnancy has not been approximated, as is mentioned by the national court in the second question, does not stand in the way of the direct applicability of the Treaty provisions.
17. As the Court has consistently held, Article 59 of the EEC Treaty requires the 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 provided less favourably on account of his nationality or of his place of establishment than a provider of services who is established in that Member State.
18. The question now is whether that right of Community citizens to receive services in another Member State encompasses the right to receive, unimpeded, information in one's own Member State about providers of services in the other Member State and about how to communicate with them. I consider that that question must be answered in the affirmative.
19. In my view, the answer given also holds good where the information comes from a person who is not himself the provider of the services and does not act on his behalf. The freedom recognized by the Court of a recipient of services to go to another Member State and the right comprised therein to access to (lawfully provided) information relating to the services and the provider of those services ensue from fundamental rules of the Treaty to which the most extensive possible effectiveness must be given. As a fundamental principle of the Treaty, the freedom to supply services must — subject to limitations arising out of imperative requirements or other justifying grounds, which I shall discuss later — be respected by all, just as it may be promoted by all, inter alia by means of the provision of information, whether or not for consideration, concerning services which the provider of information supplies himself or which are supplied by another person.
20. As has already been mentioned (in section 13), the prohibition on the provision of information on abortions carried out abroad is a measure derived from the Constitution which applies generally in Ireland and affects domestic and foreign providers of services and information or recipients of services alike and in a non-discriminatory manner. The Commission argued before the Court that that non-discriminatory rule fell outside Articles 59 and 60 of the EEC Treaty. It sought support for that view in the Court's judgments in Koe$tler and in Debauve.
21. My conclusion is, therefore, that national rules which, albeit not discriminatory, may, overtly or covertly, actually or potentially, impede intra-Community trade in services fall in principle within the scope of Articles 59 and 60 of the EEC Treaty. I say in principle advisedly, because such national rules may nevertheless be compatible with the said Treaty provisions where they are justified by imperative requirements of public interest (see section 22 et seq., below). In addition, I conclude that in principle Community citizens derive from Articles 59 and 60, where they are applicable, the right to obtain information regarding services lawfully provided in another Member State just as they derive the right therefrom to distribute such information, whether or not for remuneration.
Imperative requirements of public interest which may justify limitations on the freedom to supply services
22. The Court has consistently held, in particular in its judgment in Webb (in paragraph 17, which refers to the judgment in Van Wesemael), that
23. There is a great temptation to draw a parallel between the case-law which has been cited on the supply of services and the case-law relating to imperative requirements (Article 30 of the EEC Treaty) or grounds of public interest (Article 36 of the EEC Treaty).
24. It is in the light of this frame of reference (which is similar for trade in goods and trade in services) that the national rule at issue must, in my opinion, be considered. The questions arising in this connection are whether the rule pursues an objective which is justified under Community law, that is to say whether it can rely on imperative requirements of public interest which are consistent with or not incompatible with the aims laid down in the Treaty provisions, and whether that rule has no effects beyond those which are necessary and, in particular, is not disproportionate, that is to say whether it satisfies the test of the principle of proportionality.
Assessment of a national rule prohibiting the distribution of information concerning medical abortion services
25. As I pointed out earlier, the national rule at issue sets out a general prohibition, which in no respect discriminates on grounds of nationality or place of establishment, on distributing in the Member State concerned information affording assistance to potential recipients residing in that Member State about services of medical termination of pregnancy lawfully performed in another Member State, services which I have accepted as falling in principle within the scope of Articles 59 and 60 of the EEC Treaty.
26. It is undeniable that the prohibition of the provision of assistance — in this case in the form of information — is promoted by an objective which is regarded in the Member State concerned as an imperative requirement of public interest. The protection of the unborn enshrined in the national Constitution (and the prohibition of abortion inherent therein) and likewise the resultant need to prevent abortions — naturally only within the jurisdiction of the Member State concerned — by prohibiting the distribution of information thereon in its territory are regarded in that Member State as forming part of the basic principles of society.
27. 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.
28. Although it is not for the Court of Justice but the national court to rule on the compatibility of a national rule with Community law, the Court of Justice must provide the national court with all the information so as to make sure that the assessment which it carries out remains within the limits of Community law which are the same for all Member States. Relevant aspects of Community law include the principle of proportionality, which, in order to be of use to the national court, should be related by the Court as specifically as possible to the relevant national rule and to the facts of the case; on the understanding, however, that the Court must adhere strictly to the description of the national rule and to the facts held in the national proceedings to be relevant and proven, as they appear in the order for reference and in the documents enclosed therewith.
29. Can a national rule prohibiting the provision of information to pregnant women satisfy the test of the principle of proportionality? In this respect, it appears to me that a Member State is entitled, within its area of discretion, to regard such a prohibition, in so far as it concerns only information which assists pregnant women to terminate unborn life (which I shall refer to as information by way of assistance), as being useful and indispensable and not disproportionate to the aim sought, since that aim is intended to effectuate a value-judgment, enshrined in its Constitution, attaching high priority to the protection of unborn life. Admittedly, such a prohibition does entail a potential restriction of intra-Community trade in services, in so far as the prohibition might possibly decrease the number of pregnant women who might otherwise have gone abroad. As against this, however, the prohibition does not ban all information but only information which is provided by way of assistance and the aim sought is based on a value-judgment as to the necessity to protect unborn human life which is regarded as fundamental in the Member State concerned. Measures which would be disproportionate — in as much as they would excessively impede the freedom to supply services — would include for example a ban on pregnant women going abroad or a rule under which they would be subjected to unsolicited examinations upon their return from abroad. However, nothing of this nature is raised in the preliminary questions.
Appraisal of national rules under Community law in the light of fundamental rights and freedoms
30. As has already been mentioned (in section 15) it remains to be considered whether the prohibition on the provision of information which is at issue in this case is compatible with the general principles of Community law with regard to fundamental rights and freedoms, assuming, as will be examined hereinafter (in section 31), that the Court has jurisdiction to appraise a national rule in this way.
31. One question which has so far not been settled is to what extent it is competent to the Court to appraise national rules in the light of the aforementioned general principles of Community law with regard to fundamental rights and freedoms.
Compatibility of the prohibition of the distribution of information with the general principles of Community law with regard to fundamental rights and freedoms
32. If the above reasoning is accepted, it must now be considered once again — this time in the light of the general principles of Community law with regard to fundamental rights and freedoms — whether the fact that a general prohibition is in force in the territory of a Member State on the provision of information by way of assistance to pregnant women regarding abortions lawfully carried out abroad can be justified under Community law. Under this new approach two aspects now have to be covered by the inquiry: first, is the aim pursued by the national rule, that is to say the promotion of an ethical value-judgment relating to the protection of unborn life which is enshrined in the Constitution of the State concerned, compatible with the said general principles; secondly, is the freedom of expression, which forms part of Community law and exists in parallel to the freedom under Community law to supply services on an intra-Community basis (which covers receiving such services and providing information about them), restricted impermissibly by the national rule at issue.
33. The national court did not ask the Court (see section 13 above) — and there has been no exchange of arguments before the Court between the parties on the matter — whether a national rule which protects the life of the unborn by means of a far-reaching ban on abortion is compatible with the general principles of Community law with regard to fundamental rights and freedoms. Moreover, no legal or factual particulars have been submitted to the Court relating to the scope and application of the rules on abortion which are applicable in the Member State concerned (more specifically concerning the way in which the equal right to life of the mother, expressly referred to in Article 40, s. 3, sub-s.3 of the Irish Constitution, is taken into account). I therefore assume that, as far as the prohibition on the provision of information which is at issue in this case — which aims to preclude the provision of assistance in procuring an abortion — is concerned, it cannot be maintained that that prohibition is in furtherance of an objective which, itself, is incompatible with the said general principles of Community law.
34. The question remains whether it is 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 information by way of assistance about abortions lawfully carried out in other Member States, thereby infringing individuals' freedom of expression. It is a question here of balancing two fundamental rights, on the one hand the right to life as defined and declared to be applicable to unborn life by a Member State, and on the other the freedom of expression, which is one of the general principles of Community law on the basis of the constitutional traditions of the Member States and the European and international treaties and declarations on fundamental rights, in particular Article 10 of the European Convention on Human Rights.
35. It appears from the above that in a case such as the present in which fundamental rights conflict with each other a criterion is employed in the case-law on the European Convention which is analogous to the principle of proportionality used in Community law. This is also reflected in the judgment of the Court of Justice in Hauer, where there was a conflict between a Community objective of general interest (implementation of structural policy measures in the context of a market organization) and the right to property guaranteed by the general principles of Community law. In assessing the (in that case, Community) rule, the Court examined whether the restrictions introduced thereby could be regarded as lawful (paragraph 22 of the judgment) and whether they corresponded
36. At this point in my Opinion I must turn my attention to the case which, following the judgment of the Irish Supreme Court of 16 March 1988 referred to in section 3 above in Open Door Counselling, was brought before the European Commission of Human Rights in connection with the compatibility with {inter alia) Article 10 of the European Convention of the Irish prohibition on the provision of information which is at issue in this case.
37. Whereas no special difficulties arise in connection with the formulation of the principle of proportionality (see section 35 above), its application raises quite another question: that of the extent of the Member States' discretion in assessing what is a necessary and proportional — and therefore permissible — restriction of one of the fundamental rights, such as those protected by Articles 8 to 11 of the European Convention. In the case-law of the European Commission and Court of Human Rights the answer given to this question depends very much on the subject-matter at issue.
38. It remains for me to examine, in relation to the actual national rule at issue, whether a Member State is entitled to take the view, within the limits of its fairly considerable margin of discretion, that a general prohibition (which at the material time was sufficiently accessible and precise) on the provision within its territory of information by way of assistance on abortion in other Member States is a necessary and not disproportionate restriction of the freedom of expression, having regard to the ethical value-judgment as to the high degree of worth to be attached to protecting unborn Fife which that restriction pursues and which is regarded in the Member State concerned as fundamental. I consider that a Member State is entitled to take that view on the basis of the application of the principle of proportionality, of which I shall now examine the three main elements (described in section 35).
Decision and discussion of Article 62 of the EEC Treaty
39. In view of the foregoing, I consider that the Treaty provisions with regard to the freedom to provide services do not prevent a Member State where the protection of unborn life is recognized in the Constitution and in its legislation as a fundamental principle from imposing a general prohibition, applying to everyone regardless of their nationality or place of establishment, on the provision of assistance to pregnant women, regardless of their nationality, with a view to the termination of their pregnancy, more specifically through the distribution of information as to the identity and location of and method of communication with clinics located in another Member State where abortions are carried out, even though the services of medical termination of pregnancy and the information relating thereto are provided in accordance with the law in force in that second Member State. It appears from the above examination that this conclusion is not incompatible with the general principles of Community law with regard to fundamental rights and freedoms.
40. In the light of that conclusion I can deal quite briefly with the argument that the defendants in the main proceedings seek to 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 proceedings consider that that provision of the Treaty has a bearing on the interpretation 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 constitutional provision may not be interpreted so as to give rise to a new restriction on the provision of services relative to the position when Ireland acceded to the Community.
Proposed answers
41. I therefore propose that the Court should answer the questions put by the national court in the following terms:
1 Original language: Dutch.
2 [1988] I. R. 593.
3 Judgment of 21 April 1988 in Case 338/85 Fratelli Pardini SpA v Ministero dei commercio con l'estero and Banca tortami [1988] ECR 2041.
4 Judgment of 18 March 1980 in Case 52/79 Procureur äu Roi v Debauve [1980] ECR 833, paragraph 9.
5 Sec, as regards trade in goods, the judgments of 15 December 1982 in Case 286/81 Oosthoek's Uttgrversmaatschappij [1982] ECR 4575, paragraph 15, and of 7 March 1990 in Case C-362/88 GB-Inno-BM [1990] ECR I-667, paragraph 7.
6 Judgment of 31 January 1984 in Joined Cases 286/82 and 26/83 Luisi ana Carbone v Ministero del Tesoro [1984] ECR 377.
7 Subject, according to Article 40, s. 3, sub-s. 3 of the Irish Constitution, quoted in section 3 above, to the equal right to life of the mother (and to the proviso as far as practicable).
8 See in particular the judgment of 5 February 1981 in Case 50/80 Horváth v Hauptzollamt Hamburg-Jonas [1980] ECR 385, concerning the importation of drugs. See also the judgment of 6 December 1990 in Case C-343/89 Witzemann, not yet published in the European Court Reports, concerning the importation of forged currency.
9 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 United Kingdom abortion is forbidden. It is not apparent from the written or oral submissions made to the Court whether a problem similar to that raised in the main proceedings arises with regard to the provision in Northern Ireland of information about abortion activities authorized elsewhere in the United Kingdom.
10 See, for example, Paragraph 219(b) of the German Strafgesetzbuch (Criminal Code), which in principle prohibits any public offer of abortion services.
11 See, for example, the rule laid down in Articles L 162-3, L 645 and L 647 of the French Code de la Same Publique (Public Health Code) under which che medical professions and specialized centres have a monopoly of the provision of information on abortion.
12 See, for example, Article 350 of the Belgian Criminal Code, which authorizes abortion only in an institution to which an advisory service is attached which receives the E regnant woman and advises her in depth on all the possiilities for care for the child.
13 See the judgment of 3 December 1974 in Case 33/74 van Bimbergen [1974] ECR 1299.
14 See most recently the judgments of 26 February 1991 on the services of tourist guides (Case C-154/89 Commission v France, paragraph 12; Case C-180/89 Commission v Italy, paragraph 15; and Case C-198/89 Commission v Greece, paragraph 16, not yet published in the European Court Reports).
15 Judgment of 2 February 1989 in Case 186/87 Cowan v Trésor public [1989] ECR 195, at 220 and 221.
16 Cited in footnote 4.
17 OJ 1989 C 120, p. 51.
18 See Eur. Court H. R. Markt Inlem Verlag GmbH and Klaus Beermann, judgment of 20 November 1989, Series A no. 165.
19 Judgment of 24 October 1978 in Case 15/78 Société Générale Alsacienne de Banque v Koestier [1978] ECR 1971.
20 Cited in footnote 3.
21 Opinion delivered on 21 February 1991 in Case C-76/90 Säger v Dennemeyer, not yet published in the European Court Reports.
22 Section 24 of the Opinion, where reference is made to P. J. G. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities, Second Edition, edited by L. W. Gormley, 1989, pp. 443-452.
23 Sections 23 and 27 of the Opinion.
24 See the Opinion of Mr Advocate Genera! Warner in the Debauve and Coditel cases [(1980] ECR 860, at 870 to 873, and 905), who reached that conclusion on the basis of 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 Article 59 also covers restrictions other than restrictions entailing discrimination on grounds of nationality or place of residence, and the Opinion of Mr Advocate General Lenz in the cases on tourist guides to which I have already referred (sections 26 to 30). Since then, this view has also been adopted by Mr Advocate General Tesauro in his Opinion of 18 April 1991 in Case C-353/89 Commission v Netherlands, and in Case C-288/89 Gouda (section 12).
25 See, for example, the judgment of 3 February 1982 in Joined Cases 62 and 63/81 Seco v EVI [1982] ECR 223, paragraphs 8 and 9.
26 The same tendency to put such a broad construction on discrimination also occurs in the field of the right of establishment. See the discussion of the case-law in my Opinion of 28 November 1990 in Case C-340/89 VLtssopoulou, paragraph 6 et seq. (judgment given on 7 May 1991, not yet published in the European Court Reports).
27 Judgment of 17 December 1981 in Case 279/80 Webb [1981] ECR 3305.
28 Judgment of 18 January 1979 in Joined Cases 110 and 111/78 Van Wesemael [1979] ECR 35.
29 Judgment of 4 December 1986 in Case 205/84 Commission y Germany [1986] ECR 3755.
30 Sec the judgments ciied in footnote 13 in Case C-154/89, paragraph 15, Case C-180/89, paragraph 18, and Case C-198/89, paragraph 19.
31 Unlike Article 36 of the EEC Treaty, Article 56(2) incorporates a duty of coordination, pursuant to which the Council adopted Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117). That provision has arisen in the case-law of the Court chiefly in connection with the possibility of Member States to impose restrictions on the right of free movement in individual cases (see the judgments of 8 April 1976 in Case 48/75 Royer [1976] ECR 497, paragraph 29, and of 5 February 1991 in Case C-363/89 Roux, not yet f>ublished in the European Court Reports, paragraph 30). n the judgment of 26 April 1988 in Case 352/85 Bond van Adverteerden [1988] ECR 2085, paragraphs 31 to 39, the Court nevertheless investigated whether a general national rule was justified on grounds of public policy.
32 Set the judgment of 18 March 1980 in Case 62/79 Coditei [1980] ECR 881, paragraph 15.
33 See the judgments on tourist guides cited in footnote 13.
34 See the judgment in Webb cited in footnote 26 (at paragraph 18), the judgment in Seco cited in footnote 24 (at paragraph 14) and the judgment of 27 March 1990 in Case C-l 13/89 Rush Portuguesa [1990] ECR I-1417, at paragraph 18.
35 See the judgment in Commission v Germany, cited in footnote 28 (at paragraphs 30 to 33).
36 judgment of 23 November 1989 in Case C-145/88 Torfaen Borough Council v B & Q [1989] ECR 3851, paragraph 14.
37 Judgment of 11 July 1985 in Joined Cases 60 and 61/84 Cinéthèque and Others v Fédération nationale des cinemas français [WS] ECR 2605.
38 The judgment in Torfaen Borough Council v B & Q (cited in footnote 35) and the judgments of 28 February 1991 in Case C-312/89 Conforama, and C-332/89 Marchandise, not yet published in the European Court Reports.
39 Cited in footnote 18.
40 That objective was not expressly mentioned in the judgment in Debauve, cited above, but is clear from the Bond van Adverteerders judgment which concerns a similar national rule (cited in footnote 30).
41 Judgment of 27 October 1977 in Cise 30/77 Regina v Bouchereau [1977] ECR 1999.
42 Regina v Bouchereau, paragraphs 33 and 34, which refer to the Court's judgment of 4 December 1974 in Case 41/74 Van Duyn v Home Office [1974] ECR 1337, at 1350.
43 Per Mr Advocate General Darmon in his Opinion (paragraph 21) in the Groener case (judgment of 28 November 1989 in Case C-379/87 Groener v Minuter of Education [1989] ECR 3967) which was concerned with a constitutional provision recognizing an official language of the State.
44 As held by the Court in connection with the concept of public morality in the judgment of 11 March 1986 in Case 121/85 Conegate v HM Customs & Excite [1986] ECR 1007, paragraph 14.
45 This implies that the national rule must take account of, and not repeat, that which is already ensured in another Member State with a view to the achievement of the same aim of public interest.
46 Such disproponionality may arise, for instance where the rule gives rise to serious screening off of the market. See in this connection my Opinions in Torfaen Borough Council v B 6 Q, sections 17 to 25, and in the Conļorama and Marchandise cases, section 12 (cited in footnote 37).
47 See the judgment of the Irish Supreme Court in the Open Door Counselling case quoted in section 3 above.
48 Judgment of 14 May 1974 in Case 4/73 Nola v Commission [1974] ECR 491, paragraph 13.
49 OJ 1987 L 169, p. 1. See also the Joint Declaration of 5 April 1977 of the European Parliament, the Council and the Commission (OJ 1977 C 103, p. 1) and the judgment of 15 May 1986 in Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18).
50 Cited in footnote 16.
51 The Community freedoms frequently give an additional dimension to the traditional fundamental rights, as for instance in the case of the judgment of 28 October 1975 in Case 36/75 Rutili [1975] ECR 1219, or in that of the judgment in Johmtorí's case, cited above. In contrast, the rules underlying the Community market organizations may come into conflict with the traditional fundamental rights: see for instance the judgment of 13 December 1979 in Case 44/79 Hauer [1979] ECR 3727. With regard to the judgment in Hauef's case, see also section 35 below.
52 In this connection, see J. Weiler, The European Court at a Crossroads: Community Human Rights and Member State Action', in Du droit international au droit de l'integration. Liber Amicorum Pierre Pescatore, 1987, p. 821 et seq., which contains a reference on pp. 836-837 to the United States, where this problem has also arisen.
53 Cited in footnote 36.
54 Judgment of 30 September 1987 in Case 12/86 Demirel v Stadt Schwäbisch Gmŕm/[I987] ECR 3719.
55 Judgment of 13 July 1989 in Case 5/88 Wachauf v Germany [1989] ECR 2609.
56 The same view is taken by J. Weiler in the article cited in footnote 51 on pp. 840-841, where it is also pointed out that the Court already appraises such national rules in the light of Community law and, more specifically, in the light of the principle of proportionality.
57 See, in this connection, W. Peuken, Human eights in international law and the otection of unburn human beings, in Protecting Hn:/:tn Rights: The European Dimension. Studies in honour of Gerard Wiarda, 1988, p. 511 et seq., and particularly P. van Dijk and G. van Hoof, De Europese conventie in theorie en praktijk, 1990 (third revised edition), on p. 243 et seq. A second edition of an English version of this book was published in 1990 under the tide Theory and Practice oj the European Convention on Human Rights, to which reference is made later in this Opinion; tne issue with which we are concerned here is discussed therein on p. 218 et seq.
58 Application No 8416/79, X. v United Kingdom, Collection of Decisions 19(1980), p. 244.
59 Application No 6959/75, Brüggemann and Scheuten v Federal Republic of Germany, Collection of Decisions 10 (1978), p. 100.
60 See Eur. Coun H. R. The Sunday Times case, judgment of 26 April 1979, Scries A no. 30, pp. 30, 31.
61 See the judgment of the European Court of Human Rights in the case of Markt Intem, cited in footnote 17.
62 See, for instance, Eur. Court H. R. The case of Silver and Others, judgment of 25 March 1983, Series A no. 61, pp. 37, 38.
63 Translators note: the phrase in square brackets was omitted from the English version of the declaration.
64 Cited in footnote 50.
65 See, for instance, with regard to the meaning of the word necessary in Article 10(2) of the European Convention on Human Rights, van Dijk and van Hoof, cited in footnote 56, pp. 588-589 of the English edition.
66 Now, that is to say, at the time of the facts at issue in the main proceedings, in which the plaintiff, the SPUC, specifically relied on the Supreme Court's judgment of 16 March 1988 in order to bring its action against the defendants (see sections 3 and 4 above).
67 See van Dijk and van Hoof, cited in footnote 56, at pp. 583 to 606 of the English edition, in particular at pp. 604 to 606.
68 See Eur. Court H.R. Handyside caie, judgment of 7 December 1979, Series A no. 24, p. 22; see also Eur. Court H.R. Müller and Others v Switzerland, judgment of 24 May 1988, Series A no. 133, paragraph 35.
69 Three members take the view, as regards the issue of necessity and proportionality, that the prohibition on the provision of informaüon is not a permissible restriction, tour members consider that it is permissible.
70 H. G. Schermers, paragraph b of his concurring opinion; Sir Basil Hall, paragraph 9 of his partly concurring and partly dissenting opinion.
71 See the Court's definition of public policy: section 26 above. In the European Convention on Human Rights that expression is not unambiguous: see van Dijk and van Hoof, cited in footnote 56, English edition, p. 584 et seq.
72 In its assessment the Court is not entitled to take into consideration factual arguments, such as those adduced by 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 stage in the pregnancy involving more risks to the woman's health — , which the national court did not bring to the Court's notice as being established facts.
73 Judgment of 10 December 1985 in Case 247/84 Motte [1985] ECR 3887, paragraph 15.
74 judgment of 3 December 1974 in Case 33/74 Van Bimbergtr, [1974] ECR 1299.