Opinion of the Advocate General — ECLI:EU:C:2002:437
Date: 2002-07-11
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Principles, objectives and tasks of the Treaties;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Austria

SUMMARY — CASE C-112/00 
Summary of the Judgment 
1. Free movement of goods — Trade barriers resulting from actions by private 
individuals — Obligations of the Member States — Adoption of measures to ensure 
the free movement of goods — Scope of the obligation — Acts affecting the flow of 
imports and exports and merely transit 
(EC Treaty, Art. 5 (now Art. 10 EC) and Arts 30 and 34 (now, after amendment, Arts 
28 EC and 29 EC)) 
2. Free movement of goods — Barriers to free movement by road between Member 
States resulting from the decision of a Member State not to prohibit a demonstration by 
protesters — justification — Protection of the fundamental rights of the pro­
testers — Need to balance the interests at stake — Principle of proportionality — 
Discretion of the national authorities — Limits 
(EC Treaty, Art. 5 (now Art. 10 EC) and Arts 30, 34 and 36 (now, after amendment, 
Arts 28 EC, 29 EC and 30 EC) 
1. Having regard to the fundamental role 
assigned to the free movement of goods 
in the Community system, in particular 
for the proper functioning of the inter­
nal market, the obligation upon each 
Member State to ensure the free move­
ment of goods in its territory by taking 
the measures necessary and appropri­
ate for the purposes of preventing any 
restriction due to the acts of individuals 
applies without the need to distinguish 
between cases where such acts affect 
the flow of imports or exports and 
those affecting merely the transit of 
goods. 
(see para. 60) 
2. The fact that the competent authorities 
of a Member State did not ban a 
demonstration by protesters which 
resulted in the complete closure of a 
major transit route between Member 
States for a given period is not incom­
patible with Articles 30 and 34 of the 
Treaty (now, after amendment, 
Articles 28 EC and 29 EC), read 
together with Article 5 of the Treaty 
(now Article 10 EC) provided that that 
restriction of trade in goods between 
Member States is justified by the legit­
imate interest in the protection of 
fundamental rights, in this case the 
protesters' freedom of expression and 
freedom of assembly, which applies 
both to the Community and the 
Member States. 
In considering that justification, the 
interests involved must be weighed, 
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SCHMIDBERGER 
namely the free movement of goods 
which may, in certain circumstances, 
be subject to restrictions for the reasons 
laid down in Article 36 of the Treaty 
(now, after amendment, Article 30 EC) 
or for overriding requirements relating 
to the public interest, on the one hand, 
and the freedom of expression and 
freedom of assembly, which are also 
subject to certain limitations justified 
by objectives in the public interest, on 
the other, having regard to all the 
circumstances of the case in order to 
determine whether a fair balance was 
struck between those interests. 
It is true that the national authorities 
enjoy a wide margin of discretion in 
that regard, but it is for the Court to 
determine whether the restrictions 
placed upon intra-Community trade 
are proportionate in the light of the 
legitimate objective pursued, namely, 
in the present case, the protection of 
fundamental rights. 
Whilst a demonstration on a public 
highway usually entails inconvenience 
for non-participants, in particular as 
regards free movement, that inconven­
ience may in principle be tolerated 
provided that the objective pursued is 
the public and lawful demonstration of 
an opinion. 
(see paras 64, 69, 74, 78-82, 
91, 94, operative part) 
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