• In the case of Case C-112/00 Schmidberger v Austria [2003], it was ultimately held that a prima facie restriction on the free movement of goods is not necessarily incompatible with Articles 34 and 35 of the Treaty on the Functioning of the European Union, if there is an objective justification. The objective justification in this case was the protection of fundamental rights, more specifically, the right of protestors to engage in protests.

Facts of the case:

  • The applicant owned a trucking company, and transported goods between Germany and Italy.
  • One day, a number of protestors blocked a road in Austria for 30 hours. The applicant’s trucks needed to use this road as part of the route between Germany and Italy. As a result, the applicant’s trucks could not complete their delivery.
  • Prior to the protests taking place, the protestors sought authorisation for doing so from the Austrian authorities, who allowed the protest and subsequent blockade to take place.
  • The applicant argued that this decision of the Austrian authorities to allow the protests, and thus the blockade was incompatible with the free movement of goods under Articles 34 and 35 of the TFEU.

Issues in Case C-112/00 Schmidberger v Austria [2003]

  • Whether the decision of the authorities to allow the protests to take place was prima facie incompatible with Articles 34 and 35 TFEU.
  • Whether the protestors’ right to protest and partake in free speech could be an objective justification to the authority’s decision.

Held by the Court of Justice in the European Union (CJEU)

  • Theoretically, an authority’s failure to prevent protests which could impinge the free movement of goods could be incompatible with articles 34 and 35 TFEU,

But,

  • The decision was, in this case, compatible with Articles 34 and 35 TFEU, as there was an objective justification for it, on the basis that it was a legitimate interest to protect fundamental rights.

The CJEU specifically stated that:

  1. “The fact that the competent authorities of a Member State did not ban a demonstration which resulted in the complete closure of a major transit route such as the Brenner motorway for almost 30 hours is capable of restricting intra-Community trade in goods, and must therefore be regarded as constituting a measure of equivalent effect to a quantitive restriction which is, in principle, incompatible with Articles 34 and 35 of the TFEU”. [I-5715]
  • “Consequently, the national authorities were reasonably entitled, having regard to the wide discretion which must be accorded to them in the matter, to consider that the legitimate aim of that demonstration could not be achieved in the present case by measures less restrictive of intra-community trade… in the light of those considerations… the authorities… is not incompatible with Articles 34 and 35 of the treaty”. [I-5723]

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