Law and Morality: ECJ ruling in laser game ban re-opens moral exception. Article 234 reference

Saturday 23 October 2004 at 8:28 pm | In News | 1 Comment

14 October 2004
The Omega Case C-36/02 decided by the European Court of Justice (ECJ) on 14 October could have extensive ramifications. In 1994 Omega started laser game facilities in Germany where players shoot at each other with laser guns. In other EU countries these games are acceptable but in Germany where human dignity is a constitutional principle the police took an order forbidding Omega from operating the “playing at killing” game on the ground that the act of simulated homicide and the trivialisation of violence engendered were contrary to fundamental values.

As the equipment was lawfully made in the UK the company sought to argue that the order breached its rights under the EU principle of freedom to provide services. The German Supreme Administrative Court found that the game was an affront to human dignity as protected under the German Constitution nevertheless referred to the ECJ under Article 234 on the lawfulness of the prohibition under Community law.

The ECJ found that the protection of human dignity was a principle common to the EU Member States, not least through the application of the European Convention on Human Rights. It was immaterial that Germany should be the only EU State to have given this principle constitutional status; the protection of a fundamental right was a legitimate interest which justified “a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the freedom to provide services.”

From the strict perspective of EU law the Court has affirmed that there is no common market in morality and it is striking how far it is prepared to go. It appears that moral standards and the law have moved on since the 1986 Conegate case (Case 121/85) where the Court held that Britain could not stop the import of inflatable dolls on the grounds of public morality, but the Court’s decision in Omega could re-ignite debates that most would consider closed.
It is possible that the court would reconsider issues such as abortion, which the Court held in Grogan (Case 159/90) was a service within the meaning of Community law, with the consequence that Ireland, where abortion was illegal could not stop its nationals travelling to another EU country where it was lawful.

With the enlargement of the EU it could be that religious and moral principles could come back on the agenda, for example by the activity of the so-called Dutch “abortion ship” that was refused docking in Portugal and Poland earlier this year.

The Advocate General in Omega referred to the “Television Without Frontier Directive” which requires states not to prejudice respect for human dignity, is morality returned to the centre stage of EU law?

Full case report here

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  1. […] It matters not whether Germany is alone in taking this view, because there is arguably “no common market for morality“. But, as the Weblog poster points out, then what about ConegateĀ (where the UK could not […]

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