Opinion of Mr Advocate General Van Gerven delivered on 11 June 1991

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.