Freedom to conduct a business or the freedom to receive information and pluralism of the media. Which right prevails?

Judgment of the Court of (Grand Chamber) in Case C-283/11, Sky Österreich

 

Milena Takeva[1]

 

 

The Court of Justice of the European Union was called upon to balance the freedom to conduct a business, protected by Article 16 of the Charter of Fundamental Rights of the European Union against the freedom to receive information and pluralism of the media stated in Article 11 of the Charter. The Court approached this problem within the context of a reference for a preliminary ruling, which, however, took the form of an indirect challenge to certain EU provisions that, in the view of the referring authority, violated the right to property and the freedom to conduct a business.

In the analysis the method of the Court of Justice when balancing diverging or even opposing interests protected by EU law is examined. The analysis is structured as follows. The first three sections are dedicated to the facts and proceeding of the case and the reasoning provided in the Advocate’s General conclusion and the Court’s ruling. The forth section deals with the question of how to balance conflicting fundamental rights and freedoms, protected in the EU legal order under the Charter. The argument of general interests will be analysed emphasizing on the proportionality principle. Attention is brought to the problems steaming to the obligations of Member States to transpose harmonising rules into their national legal order. The conclusions are presented in the final section.

The central question posed by the sending institution of the alleged infringement of the fundamental right of property, recognised by the judicial order of EU law and by the legal structure of the European Court of Human Rights, has been ruled out by the Court of the Union. The Court continues the development set up in FIAMM[2] so to conclude that an economic operator cannot rely on the protection provided in Article 17(1) of the Charter as the latter does not apply to mere commercial interests or opportunities, the uncertainties of which are part of the very essence of economic activity. Thus, the Court of Justice took the view that there was only one fundamental right (the freedom to conduct a business) which needs to be balanced against the freedom to receive information and pluralism of the media.

In the circumstances of the case, the Court concludes that the freedom to conduct a business may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest. That deduction is reflected in the way in which Article 52(1) of the Charter requires the principle of proportionality to be implemented. In that regard, the Court notes that harmonizing directive does not affect the core content of the freedom to conduct a business.

In those circumstances, and in the light of the importance of safeguarding the fundamental freedom to receive information and the freedom and pluralism of the media guaranteed by Article 11 of the Charter, the Court performs its judicial review on the Union act and concludes on the proportionality of the measure. Thus, the limitation of the freedom to conduct a business is necessary and proportionate when balancing of the rights and interests is at issue. The public access to information prevails over a contractual freedom.

In conclusion, an answer is seek whether the Court could apply a neutral and objective formula when it comes to balance the opposing interest in EU law, where one or more fundamental rights and freedom are invoked, whenever a general, non-economic interest is at stake.

 

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Линк към сатията на български език: ПРЕДИЗВИКАТЕЛСТВАТА ПРЕД СЪДА НА ЕС ПРИ БАЛАНСИРАНЕТО НА ОСНОВНИТЕ ПРАВА И СВОБОДИ

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[1] Master in European Law (LL.M), specialisation in European litigation=

[2] Joined Cases C‑120/06 P and C‑121/06 P FIAMM and Others v Council and Commission [2008] ECR I‑6513, paragraph 185 and the case‑law cited.