In Case C-159/90,
REFERENCE to the Court
under Article 177 of the EEC Treaty by the High Court of Ireland for a
preliminary ruling in the action pending before that Court between
The
Society for the Protection of Unborn Children Ireland Ltd
and
Stephen Grogan and Others
on the interpretation of Articles 59 to
66 of the EEC Treaty,
THE COURT (Sixth Chamber),
composed of: O.
Due, President, G.F. Mancini, T.F. O' Higgins, J.C. Moitinho de Almeida,
G.C. Rodríguez Iglesias, M. Díez de Velasco (Presidents of Chambers), Sir
Gordon Slynn, C.N. Kakouris, R. Joliet, F.A. Schockweiler, F. Grévisse, M.
Zuleeg and P.J.G. Kapteyn, Judges,
Advocate General: W. Van Gerven,
Registrar: D. Louterman, Principal Administrator,
after
considering the written observations submitted on behalf of:
- the
Society for the Protection of Unborn Children Ireland Ltd, by James O'
Reilly, SC, and Anthony M. Collins, Barrister-at-law, instructed by
Collins, Crowley & Co., Solicitors,
- the defendants in the main
proceedings, represented by Mary Robinson, SC, and Seamus Woulfe,
Barrister-at-law, instructed by Taylor & Buchalter, Solicitors,
-
the Irish Government, by Louis J. Dockery, Chief State Solicitor, acting
as Agent, assisted by Dermot Gleeson, SC, and Aindrias O' Caoimh,
Barrister-at-law,
- the Commission of the European Communities, by
Karen Banks, a member of its Legal Service, acting as Agent,
after
hearing oral argument on behalf of the Society for the Protection of
Unborn Children Ireland Ltd, represented by James O' Reilly, SC, and Shane
Murphy, Barrister-at-law, and the defendants in the main proceedings,
represented by John Rogers, SC, and Seamus Woulfe, Barrister-at-law, the
Irish Government and the Commission at the hearing on 6 March 1991,
after hearing the Opinion of the Advocate General at the sitting on 11
June 1991,
gives the following
Judgment
1 By order dated 5 March 1990, which was
received at the Court on 23 May 1990, the High Court of Ireland referred
to the Court for a preliminary ruling under Article 177 of the EEC Treaty
three questions on the interpretation of Community law, in particular
Article 60 of the EEC Treaty.
2 The questions arose in proceedings
brought by the Society for the Protection of Unborn Children Ireland Ltd
("SPUC") against Stephen Grogan and fourteen other officers of students
associations in connection with the distribution in Ireland of specific
information relating to the identity and location of clinics in another
Member State where medical termination of pregnancy is carried out.
3
Abortion has always been prohibited in Ireland, first of all at common
law, then by statute. The relevant provisions at present in force are
Sections 58 and 59 of the Offences Against the Person Act 1861, as
reaffirmed in the Health (Family Planning) Act 1979.
4 In 1983 a
constitutional amendment approved by referendum inserted in Article 40,
Section 3, of the Irish Constitution a third subsection worded as follows:
"The State acknowledges the right to life of the unborn and, with due
regard to the equal right to life of the mother, guarantees in its laws to
respect, and, as far as practicable, by its laws to defend and vindicate
that right."
5 According to the Irish courts (High Court, judgment of
19 December 1986, and Supreme Court, judgment of 16 March 1988, The
Attorney General (at the relation of the Society for the Protection of
Unborn Children Ireland Ltd) v Open Door Counselling Ltd and Dublin
Wellwoman Centre Ltd [1988] Irish Reports 593), to assist pregnant women
in Ireland to travel abroad to obtain abortions, inter alia by informing
them of the identity and location of a specific clinic or clinics where
abortions are performed and how to contact such clinics, is prohibited
under Article 40.3.3 of the Irish Constitution.
6 SPUC, the plaintiff
in the main proceedings, is a company incorporated under Irish law whose
purpose is to prevent the decriminalization of abortion and to affirm,
defend and promote human life from the moment of conception. In 1989/90
Stephen Grogan and the other defendants in the main proceedings were
officers of students associations which issued certain publications for
students. Those publications contained information about the availability
of legal abortion in the United Kingdom, the identity and location of a
number of abortion clinics in that country and how to contact them. It is
undisputed that the students associations had no links with clinics in
another Member State.
7 In September 1989 SPUC requested the
defendants, in their capacity as officers of their respective
associations, to undertake not to publish information of the kind
described above during the academic year 1989/90. The defendants did not
reply, and SPUC then brought proceedings in the High Court for a
declaration that the distribution of such information was unlawful and for
an injunction restraining its distribution.
8 By a judgment of 11
October 1989 the High Court decided to refer certain questions to the
Court of Justice for a preliminary ruling under Article 177 of the EEC
Treaty before ruling on the injunction applied for by the plaintiff. An
appeal was brought against that judgment and, on 19 December 1989, the
Supreme Court granted the injunction applied for but did not overturn the
High Court' s decision to refer questions to the Court of Justice for a
preliminary ruling. Moreover, each of the parties was given leave to apply
to the High Court in order to vary the decision of the Supreme Court in
the light of the preliminary ruling to be given by the Court of Justice.
9 As it had already indicated in its judgment of 11 October 1989, the
High Court considered that the case raised problems of interpretation of
Community law; it therefore stayed the proceedings and referred the
following questions to the Court of Justice for a preliminary ruling:
"1. Does the organized activity or process of carrying out an abortion
or the medical termination of pregnancy come within the definition of
'services' provided for in Article 60 of the Treaty establishing the
European Economic Community?
2. In the absence of any measures
providing for the approximation of the laws of Member States concerning
the organized activity or process of carrying out an abortion or the
medical termination of pregnancy, can a Member State prohibit the
distribution of specific information about the identity, location and
means of communication with a specified clinic or clinics in another
Member State where abortions are performed?
3. Is there a right at
Community law in a person in Member State A to distribute specific
information about the identity, location and means of communication with a
specified clinic or clinics in Member State B where abortions are
performed, where the provision of abortion is prohibited under both the
Constitution and the criminal law of Member State A but is lawful under
certain conditions in Member State B?"
10 Reference is made to the
Report for the Hearing for a fuller account of the facts of the case, the
course of the procedure and the written observations submitted to the
Court, which are mentioned or discussed hereinafter only in so far as is
necessary for the reasoning of the Court.
Jurisdiction of the Court
11 In its written observations, the Commission states that it is not
clear whether the order referring the questions for a preliminary ruling
was delivered in the context of the main action or in that of the
proceedings for the grant of the injunction.
12 As the Court held in
the judgment in Pardini (Case 338/85 Pardini v Ministero del commercio con
l' estero [1988] ECR 2041, paragraph 11), a national court or tribunal is
not empowered to bring a matter before the Court by way of a reference for
a preliminary ruling under Article 177 of the Treaty unless a dispute is
pending before it in the context of which it is called upon to give a
decision which could take into account the preliminary ruling. Conversely,
the Court of Justice has no jurisdiction to hear a reference for a
preliminary ruling when at the time it is made the procedure before the
court making it has already been terminated.
13 As far as these
proceedings are concerned, if the High Court made the reference to this
Court in the context of the interlocutory proceedings, it should be
observed that the Supreme Court expressly authorized it to vary the
injunction granted in the light of the preliminary ruling to be given by
the Court of Justice. If, on the other hand, the request for a preliminary
ruling was made in the context of the main proceedings, the High Court
will have to give a decision on the substance of the case. This means that
in either case the court making the reference is called upon to give a
decision which could take into account the preliminary ruling.
Consequently, it is entitled to refer questions to the Court under Article
177 of the Treaty and the Court has jurisdiction to entertain them.
14
SPUC, for its part, argues that no question of Community law arises in
these proceedings and that the Court should refuse to give a ruling on the
questions referred. First, the defendants in the main proceedings did not
distribute the information in question in the context of any economic
activity, which precludes the application of the Treaty rules on the
freedom to provide services whose interpretation is sought. Secondly, as
the provision of information took place entirely in Ireland and involved
no other Member State, those provisions of the Treaty cannot apply.
15
In this regard, it is sufficient to observe that the circumstances
referred to by SPUC go to the substance of the national court' s
questions. Consequently, whilst they may be taken into account in
answering those questions, they are not relevant in determining whether
the Court has jurisdiction to rule on the request for a preliminary ruling
(see the judgment in Case 180/83 Moser v Land Baden-Wuerttemberg [1984]
ECR 2539). As a result, it is necessary to proceed to examine the national
court' s questions.
First question
16 In its first question, the
national court essentially seeks to establish whether medical termination
of pregnancy, performed in accordance with the law of the State where it
is carried out, constitutes a service within the meaning of Article 60 of
the EEC Treaty.
17 According to the first paragraph of that provision,
services are to be considered to be "services" within the meaning of the
Treaty where they are normally provided for remuneration, in so far as
they are not governed by the provisions relating to freedom of movement
for goods, capital or persons. Indent (d) of the second paragraph of
Article 60 expressly states that activities of the professions fall within
the definition of services.
18 It must be held that termination of
pregnancy, as lawfully practised in several Member States, is a medical
activity which is normally provided for remuneration and may be carried
out as part of a professional activity. In any event, the Court has
already held in the judgment in Luisi and Carbone (Joined Cases 286/82 and
26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph
16) that medical activities fall within the scope of Article 60 of the
Treaty.
19 SPUC, however, maintains that the provision of abortion
cannot be regarded as being a service, on the grounds that it is grossly
immoral and involves the destruction of the life of a human being, namely
the unborn child.
20 Whatever the merits of those arguments on the
moral plane, they cannot influence the answer to the national court' s
first question. It is not for the Court to substitute its assessment for
that of the legislature in those Member States where the activities in
question are practised legally.
21 Consequently, the answer to the
national court' s first question must be that medical termination of
pregnancy, performed in accordance with the law of the State in which it
is carried out, constitutes a service within the meaning of Article 60 of
the Treaty.
Second and third questions
22 Having regard to the
facts of the case, it must be considered that, in its second and third
questions, the national court seeks essentially to establish whether it is
contrary to Community law for a Member State in which medical termination
of pregnancy is forbidden to prohibit students associations from
distributing information about the identity and location of clinics in
another Member State where medical termination of pregnancy is lawfully
carried out and the means of communicating with those clinics, where the
clinics in question have no involvement in the distribution of the said
information.
23 Although the national court' s questions refer to
Community law in general, the Court takes the view that its attention
should be focused on the provisions of Article 59 et seq. of the EEC
Treaty, which deal with the freedom to provide services, and the argument
concerning human rights, which has been treated extensively in the
observations submitted to the Court.
24 As regards, first, the
provisions of Article 59 of the Treaty, which prohibit any restriction on
the freedom to supply services, it is apparent from the facts of the case
that the link between the activity of the students associations of which
Mr Grogan and the other defendants are officers and medical terminations
of pregnancies carried out in clinics in another Member State is too
tenuous for the prohibition on the distribution of information to be
capable of being regarded as a restriction within the meaning of Article
59 of the Treaty.
25 The situation in which students associations
distributing the information at issue in the main proceedings are not in
cooperation with the clinics whose addresses they publish can be
distinguished from the situation which gave rise to the judgment in
GB-INNO-BM (Case C-362/88 GB-INNO-BM v Confédération du Commerce
Luxembourgeois [1990] I-667), in which the Court held that a prohibition
on the distribution of advertising was capable of constituting a barrier
to the free movement of goods and therefore had to be examined in the
light of Articles 30, 31 and 36 of the EEC Treaty.
26 The information
to which the national court' s questions refer is not distributed on
behalf of an economic operator established in another Member State. On the
contrary, the information constitutes a manifestation of freedom of
expression and of the freedom to impart and receive information which is
independent of the economic activity carried on by clinics established in
another Member State.
27 It follows that, in any event, a prohibition
on the distribution of information in circumstances such as those which
are the subject of the main proceedings cannot be regarded as a
restriction within the meaning of Article 59 of the Treaty.
28
Secondly, it is necessary to consider the argument of the defendants in
the main proceedings to the effect that the prohibition in question,
inasmuch as it is based on a constitutional amendment approved in 1983, is
contrary to Article 62 of the EEC Treaty, which provides that Member
States are not to introduce any new restrictions on the freedom to provide
services in fact attained at the date when the Treaty entered into force.
29 It is sufficient to observe, as far as that argument is concerned,
that Article 62, which is complementary to Article 59, cannot prohibit
restrictions which do not fall within the scope of Article 59.
30
Thirdly and lastly, the defendants in the main proceedings maintain that a
prohibition such as the one at issue is in breach of fundamental rights,
especially of freedom of expression and the freedom to receive and impart
information, enshrined in particular in Article 10(1) of the European
Convention on Human Rights.
31 According to, inter alia, the judgment
of 18 June 1991 in Elliniki Radiophonia Tileorasi (Case C-260/89 Elliniki
Radiophonia Tileorasi v Dimotiki Etairia Pliroforissis [1991] ECR I-2951,
paragraph 42), where national legislation falls within the field of
application of Community law the Court, when requested to give a
preliminary ruling, must provide the national court with all the elements
of interpretation which are necessary in order to enable it to assess the
compatibility of that legislation with the fundamental rights - as laid
down in particular in the European Convention on Human Rights - the
observance of which the Court ensures. However, the Court has no such
jurisdiction with regard to national legislation lying outside the scope
of Community law. In view of the facts of the case and of the conclusions
which the Court has reached above with regard to the scope of Articles 59
and 62 of the Treaty, that would appear to be true of the prohibition at
issue before the national court.
32 The reply to the national court' s
second and third questions must therefore be that it is not contrary to
Community law for a Member State in which medical termination of pregnancy
is forbidden to prohibit students associations from distributing
information about the identity and location of clinics in another Member
State where voluntary termination of pregnancy is lawfully carried out and
the means of communicating with those clinics, where the clinics in
question have no involvement in the distribution of the said information.
Costs
The costs incurred by Ireland and
the Commission of the European Communities, which have submitted
observations to the Court, are not recoverable. Since these proceedings
are, in so far as the parties to the main proceedings are concerned, in
the nature of a step in the proceedings pending before the national court,
the decision on costs is a matter for that court.
On those grounds,
THE COURT,
in reply
to the questions submitted to it by the High Court of Ireland, by order of
5 March 1990, hereby rules:
1. Medical termination of pregnancy,
performed in accordance with the law of the State in which it is carried
out, constitutes a service within the meaning of Article 60 of the Treaty;
2. It is not contrary to Community law for a Member State in which
medical termination of pregnancy is forbidden to prohibit students
associations from distributing information about the identity and location
of clinics in another Member State where voluntary termination of
pregnancy is lawfully carried out and the means of communicating with
those clinics, where the clinics in question have no involvement in the
distribution of the said information.
