Familia Press EU Law Summary

Looks Familia?
Looks Familia?

The Significance of Familia Press

In brief, this case revolved around a ban Austria implemented of games and quizzes in 'periodicals' - newspapers and magazines published at regular intervals.

Since no such rule existed in Germany, a German newspaper company claimed that their being rejected by the Austrian government was unlawful and contrary to the right of free movement of goods. After all, the games and competitions were assembled into the newspapers lawfully in Germany.

Familia Press has great significance in establishing that not only will the courts strike down domestic laws on the grounds that they restrict free movement, they will also do so if they are contrary to fundamental rights and freedoms.

The Legal Basis for the Austrian Government's Argument

The Austrian Government first of all argued that prohibiting prizes for games and competitions is a Certain Selling Arrangement (CSA) and applied equally in law and fact to the relevant traders of Austria as it did to those of the other Member States (Keck v Mithouard). Therefore, the Austrian Government claimed, their ban did not fall under Art. 34 TFEU as a measure of equivalent effect to a quantitative restriction (MEE) and so was not contrary to EU law.

In the alternate, the Austrian government claimed that if the ban was in fact an MEE then it was protected by the overriding requirement (allowed by Article 36 TFEU) of maintaining the diversity of the press, arguing that smaller newspapers could not afford to offer lavish prizes and would therefore suffer and perish to those larger ones that could.

The Court's Decision in Familia Press

First of all, the courts made the observation that the restriction against having prizes or games in a Newspaper is not a Certain Selling Arrangement (CSA) as defined in Keck vs Mithouard, but rather a product requirement under the definition set out in Dassonville.

The restriction fulfilled the criteria of hindering actually or potentially, directly or indirectly the free movement of intra-community trade and thereafter was found to be a Measure having Equivalent Effect (MEE) to a quantitative restriction on the free movement of goods. If the ban was to stay, then, a mandatory requirement must be found to be at issue (Cassis de Dijon).

The courts agreed with the Austrian Government that under Art.36 TFEU the ban could be justified by the overriding requirement of maintaining the diversity of the press. As always however, the courts entertained the idea that there were less restrictive measures (brought up by the German press company) such as requiring a simple notice explaining that Austrians would not be entitled to a prize instead of a full ban. Despite these concerns, though, the court never said that the measure failed to satisfy the proportionality test.

Now for the ground-breaking part.

The courts for the first time patently explained that:

"Where a Member State relies on overriding requirements to justify rules which are likely to obstruct the exercise of free movement of goods, such justification must also be interpreted in the light of the general principles of law and in particular of fundamental rights" - line 24.

The Court acknowledged that the ban was contrary to the freedom of expression detailed in Art.10 of the European Convention for the Protection of Fundamental Human Rights and Freedoms (ECHR), but also that it allowed for derogations and that the maintenance of the press was sufficient to satisfy this.

Quite awkwardly then: whilst the Court conceded it was acceptable to restrict free movement in order to protect the fundamental human right of freedom of expression (as the ECJ allowed in Omega and Schmidberger) so that there was less press monopolisation, it also stated that this restriction was simultaneously contrary to the very same fundamental right it was trying to protect i.e. the ban prevented many newspapers from being circulated around Austria and so restricted a lot of 'expression'.

In conclusion,

The court decided it was necessary for the Austrian government to conduct a study on the press market and use the result thereafter to decide for themselves whether or not their measure was proportional to the general aim of maintaining a diverse press.

Remember though, the significance of this case is not so much the content but the way in which the Court dealt with the issue: it raised both the question of whether the measure was contrary to Art.32-34 TFEU and of whether the ban contravened fundamental human rights.

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