Avis juridique important

Judgment of the Court of 4 October 1991. - The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others. - Reference for a preliminary ruling: High Court - Ireland. - Freedom to provide services - Prohibition on the distribution of information on clinics carrying out voluntary terminations of pregnancy in other Member States. - Case C-159/90. European Court reports 1991 Page I-04685 Swedish special edition Page 00019 Finnish special edition Page I-00445

Summary Parties Grounds Decision on costs Operative part

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1. Preliminary rulings - Reference to the Court - Need for a preliminary ruling in view of a case pending before the national court - Condition for exercising the power to make a reference - Jurisdiction of the national court must not have been exhausted

(EEC Treaty, Art. 177)

2. Freedom to provide services - Services - Concept - Medical termination of pregnancy - Covered

(EEC Treaty, Art. 60)

3. Freedom to provide services - Services - Concept - Non-economic activity - Excluded - Prohibition by a Member State in which the medical termination of pregnancy is forbidden of the distribution of information about the possibilities of using for that purpose providers of services lawfully operating in another Member State - Information distributed by a group unconnected with the providers of services - Prohibition not contrary to Community law

(EEC Treaty, Arts 59 and 60)

1. 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.

2. 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.

3. The provision of information on an economic activity is not to be regarded as a provision of services within the meaning of Article 60 of the Treaty where the information is not distributed on behalf of an economic operator but constitutes merely a manifestation of freedom of expression.

As a result, 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.

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.

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.

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.

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.

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.

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.

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.