Right to life of the unborn v promotion of trade in services : the European Court of Justice and the normative shaping of the European Union

“Nothing in the Treaty on the European Union, or in the Treaties establishing the European Communities, or in the Treaties or acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3. 3 of the Constitution of Ireland. ” This Protocol, which by virtue of Article 239 EEC will have the same effect as a Treaty Article, exists to protect the Irish constitutional right to life of the unborn, not from the written provisions of the Treaty on European Union or feared secondary legislation thereunder, but from the jurisprudence of the European Court of Justice. This article argues that the Court has, by reference to its economic and federal teleology of Community objectives, evolved certain legal techniques applicable to human rights which will point the Community in new normative directions. These techniques, supported by the doctrines of supremacy over, and direct effect in, national law, are brought into play when national constitutional rights which the Court does not adopt as its own are held to have economic implications. The techniques are used to control the three dimensions of conflict between state and federal competencies, between a moral and an economic ideal of what is fundamental (and hence different ideas of fundamental rights), and between different legal doctrines of justification. The techniques are as follows. First, the definition of an act as a service solely on account of its economic significance, regardless of the unconstitutional and criminal nature of that act in national law. Second, the prohibition as a matter of principle of all impediments to the freedom of services, even if caused by disparities between national constitutional rights. Third, the use of fundamental rights to expand the free movement of services and to incorporate thereby supreme rights, based on different values and supported by the doctrines of supremacy and direct effect, for market participants. Fourth, the testing of national constitutional rights as derogations from economic principle. The article questions the desirability of these techniques and also the general solution provided by the Treaty on European Union as well as the particular response to the Article 40.3. 3 problem in the Protocol and the recent Declaration on the Protocol instigated by the Irish government. An alternative is proposed in the form of a teleological jurisdictional rule. This article focuses on the structure of argument in Society for the Protection of the Unborn Child v. Grogan in the light of the Court's supporting decisions and recent constitutional opinion on the European Economic Area. The Grogan case is the first case where a private party sought in EC law the means to avoid restraints on its freedom necessitated by the vindication of the constitutional right of another. SPUC sought to enjoin under Article 40.3. 3 student unions from publishing addresses of British abortion clinics. ' Despite the Supreme Court's prohibition on the similar activities of counselling services in Attorney General (Society for the Protection of Unborn Children (Ireland) Ltd.) v. Open Door Counselling Ltd. and The Dublin Wellwoman Center Ltd., the High Court distinguished this case and made an Article 177 reference. The Supreme Court on appeal criticised the distinction and made an interlocutory injunction prohibiting distribution of the information pending the ECJ's reply and the High Court's subsequent determination of the case. But the Supreme Court did not interfere with the High Court's jurisdiction to make the reference, citing Campus Oil v Minister for Energy (No 2). The ECJ held, first, that abortion 'constitutes a service within the meaning of Article 60'; second, that 'the provisions of Article 59 EEC.prohibit any restrictions on the freedom to supply services'; third, that on the facts the link to the provision of services was 'too tenuous for the prohibition on the distribution of information to be regarded as a restriction within the meaning of Article 59'; and fourth, that the Court has no fundamental rights jurisdiction with regard to national rules 'lying outside the scope of Community law,' as was the instant case because of the insufficiently proximate link between student unions and abortion clinics. Advocate General Van Gerven applied the Court's jurisprudence by testing the constitutional right as a derogation because he considered the link sufficient. The Advocate General's argument brings together several trends in the Court's jurisprudence which may be decisive in the expected follow-up litigation, based either on an agency relationship between the providers of information and services or directly on the right of free movement as European citizen (contained in Article 8a of the Treaty on European Union) and recipient of services. The likelihood of confrontation between the ECJ and the Irish courts on this related issue was affirmed by the widely reported case of a fourteen-year-old suicidal Irish girl, pregnant allegedly by rape, who was initially judicially restrained from travelling to the United Kingdom to abort. In State v. X, the High Court and three of the five Supreme Court judges held that where the right to life of the unborn is not outweighed by the equal right to life of the mother, an injunction restraining travel to obtain an abortion will issue.