European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The principle of free movement of goods is a fundamental freedom established by the Treaty and must be combined with the fundamental rights which even the Union and the Member States must observe. As an integral part of the general principles of EU law, those fundamental rights correspond to rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms an …

Protection of fundamental rights

The principle of free movement of goods is a fundamental freedom established by the Treaty and must be combined with the fundamental rights which even the Union and the Member States must observe. As an integral part of the general principles of EU law, those fundamental rights correspond to rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and those derived from the constitutional traditions common to the Member States.

Although certain rights are intangible - right to life, prohibition of torture or of inhuman or degrading treatment or punishments -, others accept restrictions, provided that they actually fulfil general interest objectives and do not constitute, with regard to the objective they pursue, a disproportionate and intolerable intervention violating the substance of those rights. 

The protection of fundamental rights such as the freedom of expression and of assembly and association (Art. 10 and 11 ECHR) may justify a restriction to the free movement of goods . Likewise, the precautionary principle, which is expressly mentioned in the Treaty among the rules governing European policy on the environment (Art. 191(2) TFEU), may be the reason for the adoption of restrictive measures in view of the risks incurred, among others, for the health of humans or animals or for the environment. Therefore, where a scientific uncertainty persists as regards real risks to health, a Member State may, in accordance with that principle, prohibit the importation of certain foodstuffs without having to wait until the reality and seriousness of those risks are fully demonstrated, provided that the assessment of the risk is not based on mere assumptions which have not yet been scientifically verified . 

Case C-112/00 Schmidberger [2003] ECR I-5659, LawLex200900000377JBJ.

See Case C-192/01 Commission v Denmark [2003] ECR I-9693, LawLex200900001049JBJ, indicating that the mere finding of the absence of a nutritional need in the population is not enough to justify a prohibition on imports; See, also, Case C-219/07 Nationale Raad van Dierenkwekers en Liefhebbers and Andibel [2008] ECR I-4475, LawLex200900000229JBJ, considering a refusal to include a species on the list of authorized species to be justified; Case C-249/07 Commission v Netherlands, not available in English, rejecting the application of the precautionary principle due to a failure to establish the impossibility to determine with certainty the existence or scope of a potential ecological risk of introduction of exotic species; See, also, regarding the free movement of persons and services: Case C-347/06 ASM Brescia [2008] ECR I-5641, LawLex200900000432JBJ, which approved a national regulation making a difference in treatment to the detriment of undertakings located in another Member State in accordance with the principle of legal certainty.

European Business Law

38. Protection of fundamental rights

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

38. Protection of fundamental rights

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise