Omega Spielhallen- und Automatenaufstellungs-GmbH v. Oberbürgermeisterin der Bundesstadt Bonn, Case C-36/02, CJEU (First Chamber), 14 October 2004

Prohibition of economic activities as being contrary to the fundamental values laid down in the Constitution. Restriction of the freedom to provide services for reasons of public order.

Art. 49 EC Treaty

Art. 46 EC Treaty

Art. 28 EC Treaty

1. Community law does not preclude an economic activity consisting of the commercial exploitation of games simulating acts of homicide from being prohibited on grounds of protecting public order by reason of the fact that such activity violates human dignity guaranteed under the national Constitution.

2. The Community legal order undeniably strives to ensure respect for human dignity as a general principle of law. There can therefore be no doubt that the aim of protecting human dignity is compatible with Community law, it being immaterial in that respect that, in a Member State, the principle of respect for human dignity enjoys a particular status as an independent fundamental right.

3. Since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies 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.

4. Measures restricting the freedom to provide services may be justified on public policy grounds only if they are necessary for the protection of the interests which they are intended to guarantee and only in so far as those goals cannot be attained by less restrictive measures. In that respect, it is not indispensable for the restrictive measure issued by the national authorities to correspond to a conception shared by all Member States as regards the way in which the fundamental right or legitimate interest in question is to be protected.

5. The concept of «public order» in the Community context, particularly as justification for a derogation from the fundamental principle of the freedom to provide services, must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without any control by the Community institutions. As a consequence, public order may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society.

(In the present case, the Bonn police authority had issued an order against a German company, forbidding it from the operation of a “laserdrome” by means of the services supplied by a British company, since it encroached upon fundamental values prevailing in public opinion and enshrined in Article 1 of the German Constitution).