JOINT DISSENTING OPINION OF JUDGES GÖLCÜKLÜ, PETTITI, RUSSO, SPIELMANN , DE MEYER, CARRILLO SALCEDO AND VALTICOS

(Translation)

I.

In the field of human rights, it is the exceptions, and not the principles, which "[are] to be interpreted narrowly" [1] .

This proposition is especially true in relation to the freedom of expression.

That principle constitutes "one of the essential foundations" of a democratic society [2] , "one of the basic conditions for its progress and for the development of every man" [3] ; "it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb ..." [4] .

"Due regard being had to the importance of freedom of expression in a democratic society" [5] , any interference with it must correspond to a "pressing social need", "be proportionate to the legitimate aim pursued" and be justified on grounds which are not merely "reasonable", but "relevant and sufficient" [6] .

In the present case these conditions, which the Court has affirmed on several occasions in previous judgments, were not satisfied.

In any event, in the light of the criteria which the Court has applied hitherto, the "necessity" of the measures taken against the applicants was not "convincingly established" [7] .

It is just as important to guarantee the freedom of expression in relation to the practices of a commercial undertaking as it is in relation to the conduct of a head of government, which was at issue in the Lingens case. Similarly the right thereto must be able to be exercised as much in the interests of the purchasers of beauty products as in those of the owners of sick animals, the interests at stake in the Barthold case. In fact, freedom of expression serves, above all, the general interest.

The fact that a person defends a given interest, whether it is an economic interest or any other interest, does not, moreover, deprive him of the benefit of freedom of expression.

In order to ensure the openness of business activities [8] , it must be possible to disseminate freely information and ideas concerning the products and services proposed to consumers. Consumers, who are exposed to highly effective distribution techniques and to advertising which is frequently less than objective, deserve, for their part too, to be protected, as indeed do retailers.

In this case, the applicants had related an incident which in fact occurred, as has not been contested [9] , and requested retailers to supply them with additional information. They had exercised in an entirely normal manner their basic right to freedom of expression.

This right was, therefore, violated in their regard by the contested measures.

II.

Having said this, we consider it necessary to make three further observations in relation to the present judgment.

We find the reasoning set out therein with regard to the "margin of appreciation" of States [10] a cause for serious concern. As is shown by the result to which it leads in this case, it has the effect in practice of considerably restricting the freedom of expression in commercial matters.

By claiming that it does not wish to undertake a re-examination of the facts and all the circumstances of the case [11] , the Court is in fact eschewing the task, which falls to it under the Convention [12] , of carrying out "European supervision" [13] as to the conformity of the contested "measures" "with the requirements" of that instrument [14] .

On the question of the need to "weigh the competing interests at stake" [15] , it is sufficient to note that in this case the interests which the applicants sought "legitimately" to protect [16] were not taken into consideration at all [17] .