Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich.
Date: 2003-06-12
30.  In that regard, according to settled case-law, the procedure provided for by Article 234 EC is an instrument of cooperation between the Court of Justice and national courts by means of which the former provides the latter with interpretation of such Community law as is necessary for them to give judgment in cases upon which they are called to adjudicate (see,   inter alia  , Joined Cases C-297/88 and C-197/89   Dzodzi   [1990] ECR I-3763, paragraph 33; Case C-231/89   Gmurzynska-Bscher   [1990] ECR I-4003, paragraph 18; Case C-83/91   Meilicke   [1992] ECR I-4871, paragraph 22, and Case C-413/99   Baumbast and R   [2002] ECR I-7091, paragraph 31).
31.  In the context of that cooperation, it is for the national court seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.  Consequently, where the questions submitted concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling (see,inter alia  , Case C-415/93   Bosman   [1995] ECR I-4921, paragraph 59; Case C-379/98   PreussenElektra   [2001] ECR I-2099, paragraph 38; Case C-153/00   Der Weduwe   [2002] ECR I-11319, paragraph 31, and Case C-318/00   Bacardi-Martini and Cellier des Dauphins   [2003] ECR I-905, paragraph 41).
32.  However, the Court has also held that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court (see, to that effect,   PreussenElektra  , cited above, paragraph 39).  The spirit of cooperation which must prevail in preliminary ruling proceedings requires the national court for its part to have regard to the function entrusted to the Court of Justice, which is to contribute to the administration of justice in the Member States and not to give opinions on general or hypothetical questions (Bosman  , paragraph 60;   Der Weduwe  , paragraph 32, and   Bacardi-Martini and Cellier des Dauphins  , paragraph 42).
33.  Thus, the Court has held that it has no jurisdiction to give a preliminary ruling on a question submitted by a national court where it is quite obvious that the interpretation or the assessment of the validity of a provision of Community law sought by that court bears no relation to the actual facts of the main action or its purpose, or where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see   Bosman  , paragraph 61, and   Bacardi-Martini and Cellier des Dauphins  , paragraph 43).
39.  It is clear from the second paragraph of Article 234 EC that it is for the national court to decide at what stage in the proceedings it is appropriate for that court to refer a question to the Court of Justice for a preliminary ruling (see Joined Cases 36/80 and 71/80   Irish Creamery Milk Suppliers Association and Others   [1981] ECR 735, paragraph 5, and Case C-236/98   JämO   [2000] ECR I-2189, paragraph 30).
51.  It should be stated at the outset that the free movement of goods is one of the fundamental principles of the Community.
56.  It is settled case-law since the judgment in Case 8/74   Dassonville   [1974] ECR 837, paragraph 5) that those provisions, taken in their context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to trade flows in intra-Community trade (see, to that effect, Case C-265/95   Commission   v   France   [1997] ECR I-6959, paragraph 29).
57.  In this way the Court held in particular that, as an indispensable instrument for the realisation of a market without internal frontiers, Article 30 does not prohibit only measures emanating from the State which, in themselves, create restrictions on trade between Member States.  It also applies where a Member State abstains from adopting the measures required in order to deal with obstacles to the free movement of goods which are not caused by the State (Commission   v   France  , cited above, paragraph 30).
58.  The fact that a Member State abstains from taking action or, as the case may be, fails to adopt adequate measures to prevent obstacles to the free movement of goods that are created, in particular, by actions by private individuals on its territory aimed at products originating in other Member States is just as likely to obstruct intra-Community trade as is a positive act (Commission   v   France  , cited above, paragraph 31).
59.  Consequently, Articles 30 and 34 of the Treaty require the Member States not merely themselves to refrain from adopting measures or engaging in conduct liable to constitute an obstacle to trade but also, when read with Article 5 of the Treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is respected on their territory (Commission   v   France  , cited above, paragraph 32).  Article 5 of the Treaty requires the Member States to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty and to refrain from any measures which could jeopardise the attainment of the objectives of that Treaty.
62.  It follows that, in a situation such as that at issue in the main proceedings, where the competent national authorities are faced with restrictions on the effective exercise of a fundamental freedom enshrined in the Treaty, such as the free movement of goods, which result from actions taken by individuals, they are required to take adequate steps to ensure that freedom in the Member State concerned even if, as in the main proceedings, those goods merely pass through Austria en route for Italy or Germany.
71.  According to settled case-law, fundamental rights form an integral part of the general principles of law the observance of which the Court ensures.  For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories.  The ECHR has special significance in that respect (see,   inter alia  , Case C-260/89   ERT   [1991] ECR I-2925, paragraph 41; Case C-274/99 P   Connolly   v   Commission   [2001] ECR I-1611, paragraph 37, and Case C-94/00   Roquette Frères   [2002] ECR I-9011, paragraph 25).
73.  It follows that measures which are incompatible with observance of the human rights thus recognised are not acceptable in the Community (see,   inter alia  ,   ERT  , cited above, paragraph 41, and Case C-299/95   Kremzow   [1997] ECR I-2629, paragraph 14).
74.  Thus, since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the free movement of goods.
75.  It is settled case-law that where, as in the main proceedings, a national situation falls within the scope of Community law and a reference for a preliminary ruling is made to the Court, it must provide the national courts with all the criteria of interpretation needed to determine whether that situation is compatible with the fundamental rights the observance of which the Court ensures and which derive in particular from the ECHR (see to that effect,   inter alia  , Case 12/86   Demirel   [1987] ECR 3719, paragraph 28).
77.  The case thus raises the question of the need to reconcile the requirements of the protection of fundamental rights in the Community with those arising from a fundamental freedom enshrined in the Treaty and, more particularly, the question of the respective scope of freedom of expression and freedom of assembly, guaranteed by Articles 10 and 11 of the ECHR, and of the free movement of goods, where the former are relied upon as justification for a restriction of the latter.
78.  First, whilst the free movement of goods constitutes one of the fundamental principles in the scheme of the Treaty, it may, in certain circumstances, be subject to restrictions for the reasons laid down in Article 36 of that Treaty or for overriding requirements relating to the public interest, in accordance with the Court's consistent case-law since the judgment in Case 120/78   Rewe-Zentral   ( "Cassis de Dijon "  ) [1979] ECR 649.
79.  Second, whilst the fundamental rights at issue in the main proceedings are expressly recognised by the ECHR and constitute the fundamental pillars of a democratic society, it nevertheless follows from the express wording of paragraph 2 of Articles 10 and 11 of the Convention that freedom of expression and freedom of assembly are also subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under those provisions and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect, Case C-368/95   Familiapress   [1997] ECR I-3689, paragraph 26, Case C-60/00   Carpenter   [2002] ECR I-6279, paragraph 42, and Eur. Court HR, Steel and Others v. The United Kingdom judgment of 23 September 1998,   Reports of Judgments and Decisions   1998-VII, § 101).
80.  Thus, unlike other fundamental rights enshrined in that Convention, such as the right to life or the prohibition of torture and inhuman or degrading treatment or punishment, which admit of no restriction, neither the freedom of expression nor the freedom of assembly guaranteed by the ECHR appears to be absolute but must be viewed in relation to its social purpose.  Consequently, the exercise of those rights may be restricted, provided that the restrictions in fact correspond to objectives of general interest and do not, taking account of the aim of the restrictions, constitute disproportionate and unacceptable interference, impairing the very substance of the rights guaranteed (see, to that effect, Case C-62/90   Commission   vGermany   [1992] ECR I-2575, paragraph 23, and Case C-404/92 P   X   v   Commission   [1994] ECR I-4737, paragraph 18).
81.  In those circumstances, the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests.
82.  The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary 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.
84.  By comparison with the points of fact referred to by the Court at paragraphs 38 to 53 of the judgment in   Commission   v   France  , cited above, it should be noted, first, that the demonstration at issue in the main proceedings took place following a request for authorisation presented on the basis of national law and after the competent authorities had decided not to ban it.