The analysis mandated by the concept of commercial speech appears to demand a broad inquiry into the position of the right to free speech in the commercial context of Community market regulation. A discussion on the impact of the right to free speech on the economic law of the internal market reveals an interesting area of conflict between fundamental rights and fundamental freedoms in the Community law context. The fundamental freedoms, on which the common European market is based, have been present in the Community legal order since its very beginning. The fundamental rights, on the other hand, found their way into this system later, through general principles of law, mostly due to the judicial activism of the European Court of Justice. They have come a long way from not being considered at all to their full and explicit recognition in the Charter of Fundamental Rights, incorporated into the Constitutional Treaty.80
“Art. 10 ECHR is no stranger to the European Court’s case law on free movement.”81 In the case Familiapress v. Heinrich Bauer Verlag82 the ECJ dealt with the conflict between the fundamental freedom to free movement of goods and the right to freedom of speech. A German magazine granted readers a prize for solving a crossword puzzle. Such practice was not permitted Austria where the publisher intended to sell the said magazine. The relevant Austrian unfair competition law provision was said to protect smaller publishers. The Austrian government submitted that through offering free gifts large publishers were in a better position to attract consumers and eliminate smaller publishers unable to finance this expensive promotion method. The restriction on cross-border trade was therefore justified as serving the objective of maintaining press diversity, which in turn was considered as a mean to safeguard freedom of expression. Clearly, the protection of fundamental rights adversely affected intra-Community trade. The ECJ held that Member States may uphold restrictions on cross-border trade, by appealing to the requirements of safeguarding the protection of fundamental rights. Interestingly, although the ECJ was rather sceptical of the positive effects of upholding the Austrian rule, it left it for the national court to balance the competing interests.83 The question of the relationship between the fundamental rights and fundamental freedoms has already commanded considerable attention of the European Court of Justice. The Schmidberger case raised the question of the need to reconcile the requirements of the protection of fundamental rights in the Community with fundamental freedom enshrined in the EC Treaty. It regarded the question of the scope of freedom of expression and assembly, as guaranteed by Art. 10 and 11 ECHR, and the free movement of goods, in the circumstances when the former are relied upon as a justification for the restriction of the latter.84 Schmidberger was a German transport undertaking, essentially involved in transporting steel and timber between southern Germany and northern Italy, using the Brenner motorway in Austria. The Transitforum Austria Tirol, an environmental protection association, gave notice to the Austrian authorities of an intention to hold a demonstration, principally against the pollution caused by the heavy transport in the Tirol region. It would involve blocking of the said route. The competent authorities granted permission. The demonstration had been widely publicised and alternative routes were suggested. Schmidberger brought proceedings against Austria claiming that the authorities failed to guarantee the freedom of movement of goods in accordance with the EC Treaty, and claimed damages in respect of standstill periods, loss of earnings and additional related expenses.85 The Advocate General Jacobs pointed out that it was conceivable that cases in which a Member State would invoke the necessity to protect fundamental rights to justify a restriction of one of the fundamental freedoms, may become more frequent in the future, as many of the grounds of justification currently recognised by the Court could also be formulated as being based on fundamental rights considerations.86 This statement was strengthened by referral to another case in which the Court was required to reconcile the conflict between the fundamental rights and fundamental freedoms – Omega Spielhallen- und Automatenaufstellung-GmbH v. Oberbürgemeisterin der Bundesstadt Bonn87. In this case, Advocate General Stix-Hackl was dealing with the question of the order of precedence that is to be afforded to fundamental rights as general principles of Community law and pointed out that it is particularly questionable whether there is in fact an order of rank between the fundamental rights applicable as general principles of law and the fundamental freedoms enshrined in the EC Treaty.88 He concluded by stating:
“it appears to me to be significant that in cases such as this the necessary weighing-up of the interests involved ultimately takes place in the context of the actual circumstances in which in particular fundamental rights are restricted. The need ‘to reconcile’ the requirements of the protection of fundamental rights cannot therefore mean weighing up fundamental freedoms against fundamental rights per se, which would imply that the protection of fundamental rights is negotiable.”
The comparison between the next discussed case – Commission v. France89 - and Schmidberger is symptomatic of the need to weigh up the competing interests in the context of the actual circumstances of the case. The Court emphasised that the circumstances characterising the Schmidberger case were clearly distinguishable from the situation in the case giving rise to the judgment in Commission v. France. In the latter the Commission brought an action against France for failing to guarantee the freedom of movement of goods on ground that the government did not take appropriate measures in protecting importers of agricultural products from Spain against the demonstration of French farmers. The demonstration in Schmidberger took place after a permission granted by the competent authorities. It blocked the traffic on a single route and on a single occasion. The demonstrators were undoubtedly exercising their fundamental right by manifesting in public an opinion on a subject of public concern. They did not intend to restrict trade in goods of a particular type or from a particular source. By contrast, the French demonstrators in Commission v. France were preventing the free trade in particular type of goods originating from Member States other than France, not only by obstructing the transport thereof, but also by destroying the products in transit and those put on display in shops.90 Consequently, in Schmidberger the Court held that the Austrian authorities were entitled to consider that the outright ban on the demonstration would have constituted unacceptable interference with the fundamental rights to freedom of expression and assembly.
Furthermore, the Court held,that Member States enjoy a wide margin of discretion in circumstances such as those in this case. It remains to be seen whether the scope of margin of discretion will depend on the kind of speech involved. According to the line of reasoning adopted by the ECtHR where commercial speech is at stake, the standards of scrutiny may be less severe91. Given the possible variables of commercial speech, the problem becomes more complex. The thesis put forward in this paper is that in cases where the fundamental rights will conflict with the fundamental freedom, the speech in question will come under close scrutiny. Depending on how much it can contribute to the public debate it will be less or more difficult for the Member States to rely on the fundamental right to free speech in restricting the fundamental freedom.