LAWS5930 European Union Law

The European Union Character of Fundamental rights is a very poignant set of rights which is aimed to guarantee a series of individual rights and freedom to all human beings and is also aimed at protecting the rights in cases of violation as well if the essence of the fundamental rights are threatened. It also formulates a series of fundamental rights which includes freedom of expression, religion and upholds the values of human dignity as well.  It also contains newer rights framed under the third generation rights which include right to data protection and the right to good administration. In cases the fundamental rights are being violated there are many instances where legal institutions have taken charge of the situation in ensuring justice. Thus it is important to note that with the concerns of protection of human dignity has been extremely crucial for the Court of Justice to uphold even if it clashes with the essence of other freedom and rights. For example the free movement of goods and freedom to provide services has been in question often a time with regards to violating the essence of freedom of expression and human dignity. It is even more applicable in this paper with what the paper sets to further elucidate, but before going into further discussion it is important to look at what the freedom to provide services and freedom to goods and services entails.  

The freedom to provide services which is also known as the free movement services is one of the most important rights and freedom enshrined by the European Union. By enabling this it ensures that the free movement of workers, citizens, goods and capital are ensured so that they can provide their services without any restrictions in the member states of the European Union and this has been extremely important for the economy of because the economy of the region has shifted towards a more service based economy. The freedom of goods on the other hand is another important freedom which allows certain relaxation of custom duties it is also based on the concept of principles of mutual recognition, elimination of physical and technical barriers in order to allow free flow of materials and goods that can further strengthen the economy of the country. However the Court of Justice has been critical of both these freedom when it is concerned with the questions of allowing the protection of freedom of expression and human dignity which can be further understood through the close examination of the Schmildberger vs Austria and Omega Spielhallen judgments.   

The Omega Spielhallen case is a prominent European Union law case centered on the concerns of freedom to provide services and the free movement of goods in the European Union. Omega GmbH with regards to this case claimed that there was a prohibition of setting up a laserdrome which is opposed to the rights that came with the freedom to provide services. The restrictions and prohibitions came from the objections of use of laserdrome as a leisure sport where people had to shoot each other with laser guns as a form of entertainment. In this context the Bonn Government when it was under the Ordnungsbehördengesetz Nordrhein-Westfalen issued a law permitting the police authorities to take adequate measures in order to help people avert the risks involved with such a form of entertainment. Followed by this there were also mass protests against the laserdrome because in essence it was actually promoting violence even by fake killing of people.  Here it is important to note that laserdrome is a form of sports where people strike at each other with laser guns to acquire points eventually leading to victory, with this case the laser guns were acquired from a UK based company.  Thus eventually the German Federal Administration Court finally banned the game under the Basic Law article 1 which protected human dignity.  The Court said this sort of game rightly ignores the basic tenants that protects human dignity by strengthening the position of an individual above the others, rendering the player a powerful attitude with a symbolic use of a weapon of destruction which by all means breeches the fundamental right of each human beings that should be under the law acknowledged and respected.  For the very same reason the First Chamber of the court of Justice found the restriction justified because it was dismantling the value of human dignity.

The judgment of the case rightly pointed that the fact that this laserdrome was encouraging and simulating the act of killing and was even normalizing it, which might lead to far serious implications. Moreover the Bonn police authority through their very accurate assessment that the law rightfully could prohibit the equipment used in this form of entertainment. And thus the objective to ensure that human dignity has to be compatible with any form of community law is mandatory.  Thus it is justified for the court who took the decision to prohibit a form of entertainment that includes violence against other individuals, hereby representing the act of homicide which is contrast to the values and protection of human dignity.

With regards to freedom of expression in question with free movement of goods the Schmidberger case is a good instance to look at.  In this particular case Schimidberger who was the owner of the trucking company had claimed damage for the loss that was caused by a group of protestors who prevented the truck from delivering goods in Austria.  The protest demonstration was organized in order to raise consciousness about the environmental and health hazards that was caused by the incessant movement of heavy loaded trucks on the motorway.  The demonstration continued for 30 hours demanding the authorities to intervene in order to reduce the hazards this can be seen as legitimate form of freedom of expression.  It is important to note the background of the demonstration as well in order to understand the court’s decision in supporting the act. Austria for a very long time was facing pollution and environmental damage due to the movement of the heavy trucks and it was a matter of public concern for a long time which culminated into this act. However it is important to note that though the Court of Justice took cognizance of the fact that though Austria failed to ban the demonstration which infringed with certain articles that guaranteed the freedom of movement of goods. But on the other hand this sort of demonstration was legally acceptable as a form of freedom of expression, which is one of the guaranteed fundamental rights of the demonstrators even recognized by the assembly under the ECHR and the national constitution as well as of the principles which are all very important and integral part of the European Union Law.  

This only reiterates the importance of human rights as a fundamental principle under the European Union, it allows freedom of expression which is considered as a very important pillar  of the democratic society.  And the judgment very specifically stated that in cases where the very essence of freedom of expression and what it stands for is affected only then it is possible to take necessary actions, if it impairs the very essence of the right that is guaranteed does the Court of Justice can take cognizable actions.

Therefore to conclude, in accordance to the Court of justice, the kind of stress and importance it lays on the issues of freedom of expression and human dignity for this the actions taken to protect these even when it was in direct contrast with the freedom of goods and services and freedom to provide services is  rightly justified.

Bibliography

Callewaert, Johan. "The European Convention on Human Rights and European Union law: a long way to harmony." European Human Rights Law Review 6 (2009): 768-783.

Garcia, R. A. (2002). The general provisions of the Charter of Fundamental Rights of the European Union. European Law Journal, 8(4), 492-514.

Menéndez, Agustín José. "Chartering Europe: Legal status and policy implications of the Charter of Fundamental Rights of the European Union." JCMS: Journal of Common Market Studies 40, no. 3 (2002): 471-490.

Spaventa, E. (2014). Fundamental rights in the European Union. European Union Law, 226-254.

Verbruggen, Paul. "The impact of primary EU law on private law relationships: Horizontal direct effect under the free movement of goods and services." European Review of Private Law 22, no. 2 (2014).

Connor, Tim. "Goods, persons, services and capital in the European Union: jurisprudential routes to free movement." German law journal 11, no. 2 (2010): 159-209.

Cuyvers, Armin. "Freedom of Establishment and the Freedom to Provide Services in the EU." In East African Community Law, pp. 376-391. Brill Nijhoff, 2017.

Postnikova, Elena. "The scope of the freedom to provide services: prohibited restrictions." Higher School of Economics Research Paper No. WP BRP 19 (2013).

Ackermann, Thomas. "Case C-36/02, Omega Spielhallen-und Automatenaufstellungs-GmbH v. Oberburgermeisterin der Bundesstadt Bonn, Judgment of the Court of Justice (First Chamber) of 14 October 2004, nyr." Common Market L. Rev. 42 (2005): 1107.

Gonzales, Géraldine. "EC Fundamental Freedoms v. Human Rights in the Case C-112/00 Eugen Schmidberger v. Austria [2003] ECR I-5659." Legal Issues of Economic Integration 31, no. 3 (2004).

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