When established in the 1950s, the European Communities were predominantly concerned with the creation and operation of the common market, based on the four fundamental freedoms (freedom of movement of goods, services, capital and persons). This dominating emphasis has been gradually balanced by the growing concerns about the need to have recourse to the protection of fundamental rights, in order to legitimise the regulation of the common market. Consequently, the internal market law has been influenced by fundamental rights as enshrined in the ECHR and resulting from the constitutional traditions common to the Member States. It remains to be seen if the instinctive assumption, that the EU Charter of Fundamental Rights will mark a watershed in the development of the internal market law, will prove to be true.53
The impact of fundamental rights on the internal market law can be dual, in that it concerns either the process of approximation of laws or the limitations imposed on fundamental freedoms. The fundamental rights serve as signposts for the manner in which the process of approximation of law is being carried out, in that the new harmonising rules have to be scrutinised for their conformity with fundamental rights, underpinning the internal market. They serve as a yardstick on which to judge the legality of Community law. The impact of fundamental rights on a fundamental freedom may be dual, in that it may serve either as a limitation to a limitation to a fundamental freedom or as a limitation to a fundamental freedom. The first aspect embraces situations in which a Member State is imposing a restriction on the freedom of movement and this restriction is claimed to run counter to the requirements of the protection of fundamental rights. The second aspect covers cases in which the Member States rely on the fundamental rights when they justify the exceptions to the fundamental freedoms. The fundamental rights must serve as signposts for the Member States when they rely on exceptions to fundamental freedoms.54 According to the ERTjudgment, “where a Member State relies on an overriding requirement relating to the public interest or on ground for justification stipulated in the Treaty in order to justify a national rule which is likely to obstruct the exercise of a fundamental freedom arising from the Treaty, such justification must be interpreted in the light of the general principles of law and in particular of fundamental rights.”55 In this particular case the freedom to provide services had to be interpreted “in the light of the general principle of freedom of expression embodied in Art. 10 of the European Convention on Human Rights”.56 The restriction on broadcasting activities imposed by Greek law had to pass the test of conformity with the right to free speech as incorporated in Art. 10 ECHR. The fundamental right works here as a limitation to a Member State’s limitation to the fundamental freedom.
In the light of the above-mentioned adherence to fundamental rights, it is not surprising, that in the context of an emphasis placed on the economic aspects of market integration, the issues concerning the freedom of commercial expression have been referred to the European Court of Justice for adjudication. The issue of commercial speech was raised on the occasion of the challenge to the legality of the Tobacco Advertising Directive (Directive 98/43/EC of the European Parliament and the Council of 6 July 1998, on the approximation of the laws, regulations, and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products).57 Germany instituted proceedings seeking the annulment of the Directive. In the discussion on tobacco advertising the lawfulness of restrictions imposed on speech about lawful products comes under close scrutiny. The question whether a restriction allegedly pursuing public health objectives is proportional under the “necessity test” set out in Art. 10 (2) of the European Convention on Human Rights is thoroughly examined. Several possible grounds for annulment have been raised, inter alia the violation of the right to freedom of speech. This paper will analyse the reasoning presented by Advocate General Fennelly in this respect. The issue of compatibility of the restriction on advertising and sponsorship of tobacco products with the right to freedom of expression has not been addressed in the Court’s judgment, due to the fact that it upheld the challenge on the ground of lack of proper Treaty basis and annulled the Directive.
The EU Charter of Fundamental Rights, incorporated into the Constitutional Treaty, embodies the right to free expression. Art. II-11 reads as follows:
Everyone has the right to freedom of expression. This rights shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
The freedom and pluralism of the media shall be respected.
Although not explicitly codified, the right to free speech as provided for in Art. II-11 of the Charter, is not a novelty and has been present in the Community legal order. According to the well established case law, fundamental rights form an integral part of the general principles of law, the observance of which the European Court of Justice ensures. Art. 6 of the Treaty on the European Union provides for the protection of fundamental rights in the Community legal order. It reads as follows:
“[t]he Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from constitutional traditions common to the Member States , as general principles of Community law.”
The Court draws inspiration from the constitutional traditions of the Member States and international human rights treaties on which the Member States have collaborated or to which they are signatories.58 The ECHR has been accorded a special role in this respect.
Title VII of the Charter contains general clauses which relate to the interpretation and application of the Charter. Art. II-52 contains a clause defining the conditions for the restrictions on rights and freedoms.59 According to this provision:
“[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or need to protect the rights and freedoms of others.”
In other words a restriction to pass a scrutiny test must be:
the objectives of general interest recognised by the Union,
need to protect the rights and freedom of others.
This test greatly resembles the “necessity test” as set out in Art. 10 (2) ECHR.
Art. II-52 (3) of the Charter has special significance in defining the scope of protection of rights and freedom. It reads that:
“[i]nsofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
This provision deals with the relation between Charter and ECHR, already much discussed in the literature.61 A general clause including ECHR but referring to international human rights instruments and constitutional provisions of Member States is contained in Art. II-53 (which to some extent resembles Art. 53 ECHR on safeguards for existing human rights62):
“Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their specific fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions”.
The explanations to the Charter state that Art. 53 (Art. II-53 of the Constitutional Treaty) aims at safeguarding the level of protection already afforded. The importance of the ECHR is emphasised. As it has been stated in the explanations: “[t]he level of protection afforded by the Charter may not, in any instance, be lower than that guaranteed by the ECHR, with the result that the arrangements for limitations may not fall below the level provided for in the ECHR.”63 In Art. II-52 (4) the Charter refers also to the common constitutional traditions of Member States by stating that insofar as “the Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.”
Last but not least it has to be mentioned that the Constitutional Treaty includes an explicit competence for the Union to accede to the European Convention on Human Rights (Art. II–7 (2)).64
Freedom of expression submissions in the “Tobacco Advertising” case
The applicants submitted that “commercial speech such as advertising by which undertakings can give the public useful information about their products” comes within the realm of protection of Art. 10 ECHR.65 On this basis they concluded that such protection exists also in the Community legal order. The defendants on the other hand emphasised that freedom of expression is not absolute and Art. 10 (2) ECHR permits restrictions thereupon in the interests of public health.66 The dispute in the case at hand concentrated therefore on legitimacy and proportionality of restrictions based on the objectives of public health alongside with the those relative to the achievement of the internal market.
Defining commercial speech and its scope of protection in the Community
Advocate General Fennely defines commercial speech as:
“the provision of information, expression of ideas or communication of images as part of the promotion of a commercial activity and the concomitant right to receive such communication”67 A clear statement as to the need for protection of commercial expression follows:
“commercial expression should also be protected in Community law. Commercial expression does not contribute in the same way as political, journalistic, literary or artistic expression do, in a liberal democratic society, to the achievement of social goods such as, for example, the enhancement of democratic debate and accountability or the questioning of current orthodoxies with a view to furthering tolerance or change. However, in my view, personal rights are recognised as being fundamental in character, not merely because of their instrumental, social functions, but also because they are necessary for the autonomy, dignity and personal development of individuals. Thus, individuals’ freedom to promote commercial activities derives not only from their right to engage in economic activities and the general commitment, in the Community context, to a market economy based upon free competition, but also from their inherent entitlement as human beings freely to express and receive views on any topic, including the merits of the goods or services which they market or purchase.”68
According to the above-mentioned definition commercial speech encompasses statements strictly linked to the commercial promotion of products and services. This group of statements has been classified in this paper as purely commercial speech, strictly concerned with the achievement of price and sales-volume targets. On the basis of the Advocate General’s opinion a conclusion may be drawn that commercial speech is also protected in the Community. The method of protection accorded to commercial speech under the European Convention on Human Rights is likely to be applied by analogy to the scope of protection accorded to commercial speech in Community legal order. The European Convention on Human Rights has been incorporated by the European Court of Justice to the Community legal order as a source of inspiration in fleshing out the general principles of law. Since the adoption of the Treaty establishing the Constitution for Europe, freedom of expression became a codified right as expressed in the Charter of Fundamental Rights, which was incorporated as a part of the European Constitution. The Charter does not mention commercial expression nor does it explicitly limit the protection to non-commercial (political, literary, artistic etc.) expression. Because the right to freedom of expression has been construed (in terms of its wording) similarly to its concomitant in the ECHR, and moreover on the basis of Art. II-52 (3), insofar as the rights in the Charter correspond to rights guaranteed by the ECHR, “the meaning and scope of those rights shall be the same as those laid down by the said Convention”, the protection accorded to commercial speech in the Union’s law will be construed on the basis of the interpretation of Art. 10 ECHR as developed by the ECtHR. This conclusion is all the more legitimate in the light of the European Union’s accession to the European Convention on Human Rights (Art. II-7 (2) Constitutional Treaty).
The ECJ referred, on many occasions, to the case law of the ECtHR. This method of fleshing out the general principles of law and after the adoption of the Constitutional Treaty the provisions of the Charter of Fundamental Rights will continue. It resembles the practice of national courts in signatory countries to the ECHR when dealing with cases concerning human rights, of referring to the provisions of the European Convention on Human Rights or case-law of the ECtHR. Of course the intensity of this practice and therefore the intensity of the influence of the Convention on the interpretation and application of national law by national courts differs from country to country (it is for instance a common practice in Poland). In order to safeguard the internal, European-wide consistency of the system of protection of human rights and to avoid the conflict of interpretation between the two European courts the common reference to the ECHR is highly desirable. In light of the future membership of the EU in the ECHR, such a conflict is no longer likely to occur. Preceding the adoption of the Constitutional Treaty and the clear competence for the Union to accede to the Convention discussion on the relationship between the two legal orders, many commentators emphasised that although conflict between the two courts was not likely, accession would have anyway been highly recommended.69 To conclude the arguments in this section it has to be noted that commercial speech is clearly recognised by the Community law.70 Its protection is based on the general statement that all speech regardless of form is protected. The exact scope of protection will be established by reference to the restrictions.
Restrictions upon commercial speech in the Community law
Freedom of expression is not absolute and may be subject to restrictions so as to achieve certain objectives of relevance for the common good or to secure the rights of others.71
In the Tobacco Advertising Directive the restriction upon freedom of speech was justified by the need to protect public health.72 Advocate General stated that the objective of protecting public health is recognised as an objective justifying restriction on speech under the European Convention on Human Rights and as an objective justifying restrictions on the fundamental freedoms in the Community legal order (Art. 36 TEC).73 The argument put forward in the Tobacco Advertising case is that the reduction of tobacco advertising will reduce the consumption and therefore improve public health.
In scrutinising the proportionality of legislative choices made by the institutions in complex fields, the Court has to examine whether the exercise of discretion is vitiated by a manifest error or a misuse of powers or whether the institutions did not clearly exceeded the bounds of their discretion.74 Advocate General referred to the rules governing the imposition of restrictions on rights under the European Convention on Human Rights and distinguished between the general rule in this regard and the specific case of commercial expression. As a rule the restrictions imposed on the exercise of rights have to be justified by presenting evidence of a pressing social need for their imposition.75 The commercial expression represents a special case in this regard. The ECtHR held that limits thereupon are acceptable where the competent authorities ‘on reasonable grounds’ had considered the restrictions to be necessary.76 Similarly in the RTL case, the Advocate General Jacobs referred to two cases of the European Court of Human Rights – Casado Coca v Spain and VGT Verein Gegen Tierfabriken v Switzerland – and stated that the ECtHR is willing to accept considerable restrictions on commercial advertising and that a wider margin of appreciation for national authorities is important, particularly in an area as complex and fluctuating as that of advertising.77 In the Tobacco Advertising case the difference in treatment has been justified by reference to different functions and interactions with more general public interest. The Advocate General concluded that “political expression serves certain extremely important social interest (…) commercial speech does not normally perform a wider social function of the same significance.”78 Consequently the adoption of a similar approach the Community legal order has been advocated:
“where it is established that a Community measure restricts freedom of commercial expression, as the Advertising Directive clearly does, the Community legislator should also be obligated to satisfy the Court that it had reasonable grounds for adopting the measure in question in the public interest. In concrete terms, it should supply coherent evidence that the measure will be effective in achieving the public interest objective invoked – in these cases, a reduction in tobacco consumption relative to the level which would otherwise have obtained – and that less restrictive measures would not have been equally effective.”79