INDIVIDUAL DISSENTING OPINION OF JUDGE PETTITI

(Translation)

In addition to the observations put forward in the joint dissenting opinion, I wish to make the following comments.

Freedom of expression is the mainstay of the defence of fundamental rights. Without freedom of expression, it is impossible to discover the violation of other rights.

In this field the States have only a slight margin of appreciation, which is subject to review by the European Court . Only in rare cases can censorship or prohibition of publication be accepted. This has been the prevailing view in the American and European systems since 1776 and 1789 (cf. First Amendment, United States Constitution; case-law of the supreme courts of the United States , Canada , France , etc.).

This is particularly true in relation to commercial advertising or questions of commercial or economic policy, in respect of which the State cannot claim to defend the general interest because the interests of consumers are conflicting. In fact, by seeking to support pressure groups - such as laboratories -, the State is defending a specific interest. It uses the pretext of a law on competition or on prices to give precedence to one group over another. The protection of the interests of users and consumers in the face of dominant positions depends on the freedom to publish even the harshest criticism of products. Freedom must be total or almost total, except where an offence is committed (for example misleading advertising) or where an action is brought for unfair competition, but in those circumstances the solution is not censorship but criminal prosecution or civil proceedings between the undertakings. The arsenal of laws caters for the punishment of misleading advertising.

The limitation of the freedom of expression in favour of the States’ margin of appreciation, which is thereby given priority over the defence of fundamental rights, is not consistent with the European Court ’s case-law or its mission. Such a tendency towards restricting freedoms would also run counter to the work of the Council of Europe in the field of audio-visual technology and trans-frontier satellites aimed at ensuring freedom of expression and protecting the rights of others including those of users and consumers of communication media.

The problem is all the more serious because often the States which seek to restrict the freedom use the pretext of economic infringements or breaches of economic legislation such as anti-competition or anti-trust provisions to institute proceedings for political motives or to protect "mixed" interests (State - industrial) in order to erect a barrier to the freedom of expression (the Eastern block countries provide numerous examples, but the States of the Council of Europe follow this practice too). The economic pressure which groups or laboratories can exert should not be underestimated. In certain cases this pressure has been such that it has delayed the establishment of the truth and therefore put back the prohibition of a medicine or substance dangerous for the public health.

The economic press of numerous member States publishes each day articles, millions of copies of which are circulated, containing criticism of products in terms a hundred times stronger than those in question in the markt intern case. It is this freedom accorded to that press which ensures the protection of the public at large.

INDIVIDUAL DISSENTING OPINION OF JUDGE DE MEYER

(Translation)

In addition to the observations contained in the joint dissenting opinion [18] , I consider it to be necessary to make the following comments.

1.   It is questionable whether the "aim" of the interference contested by the applicants was sufficiently "legitimate" to justify that interference, because in fact the measure was designed not to protect "rights of others" in the strict sense, but rather to defend mere commercial interests.

2.   Ultimately the Court undertook "a re-examination of the facts and all the circumstances" of the case by adopting, in paragraphs 34 to 37 of the judgment, the disputed assessment of the national courts.