## Facts

- An environmental association organized a demonstration on Austria’s Brenner motorway, a major transit route for goods between Germany and Italy.
- The demonstration, notified under Austrian law, resulted in a complete closure of the motorway to traffic for almost 30 hours.
- Austrian authorities authorized the event and did not prohibit it, relying on constitutional and human-rights protections for freedom of expression and assembly.
- Authorities took mitigating steps, including advance public notice of the closure and designation of alternative routes.
- Eugen Schmidberger, a Tyrolean transport company owner, claimed the closure caused economic loss and that Austria breached EU treaty obligations on the free movement of goods by failing to prevent private obstruction.
- The national appellate court in Innsbruck referred questions to the Court of Justice for a preliminary ruling on compatibility with the free-movement rules and Member State duties to counter serious private interference.

## Issues

1. Whether a Member State’s failure to prohibit a private demonstration that fully blocks a major international transit route for a limited period can constitute a measure having equivalent effect to a quantitative restriction on the free movement of goods.
2. If so, whether the restriction may be justified by protecting fundamental rights to freedom of expression and assembly, and whether allowing the demonstration satisfied proportionality.

## Decision

- The Court held that Austria’s decision not to ban the demonstration, which produced a complete motorway closure for almost 30 hours, was capable of restricting intra-EU trade and amounted to a measure having equivalent effect in principle contrary to free-movement obligations.
- The Court nevertheless ruled that Austria did not breach EU law because protecting freedom of expression and assembly was a legitimate interest capable of justifying a restriction on free movement.
- The Court found the authorities’ response proportionate, given the demonstration’s limited duration and location and the mitigating measures taken, and accepted that national authorities have a wide margin of discretion in balancing these interests.

## Legal Principles

- Member States must take necessary and appropriate measures to secure free movement of goods not only against state barriers but also against serious impediments caused by private individuals, including obstacles to transit.
- State inaction in the face of serious private obstruction can fall within the concept of a measure having equivalent effect to a quantitative restriction on free movement of goods.
- Fundamental rights, including freedom of expression and assembly, are protected as general principles of EU law and may justify restrictions on treaty market freedoms where reconciliation is required.
- Fundamental rights are not absolute; limits are permitted when they pursue legitimate objectives and do not constitute disproportionate interference that impairs the substance of the right.
- A restriction on free movement may be justified if it pursues a legitimate aim and is proportionate, considering suitability, necessity, and whether less restrictive measures could achieve the aim.

## Conclusion

The Court treated Austria’s non-prohibition of a road-blocking demonstration as a trade-restricting measure attributable to the state, but upheld it as a proportionate accommodation of free movement of goods with demonstrators’ fundamental rights to expression and assembly.


Eugen Schmidberger, Internationale Transporte und Planzüge v. Republik Österreich, Case C-112/00, 2003 E.C.R. I-5659 (E.C.J. 2003)