C-159/90 SPUC v Grogan [1991] ECR I-4685

• The Irish Constitution contains a ‘right to be born’ for foetuses, so that abortion in Ireland is illegal.

• Student groups supplied information on how to go to the UK to get an abortion and were prosecuted. They argued that the EC established fundamental rights to free movement to obtain services, as well as freedom to gain information about them.

  • I.e. Two fundamental rights (one national, one supranational) were in conflict.

• ECJ accepted that abortion was a service within Article 50 EC and people were free to travel to obtain it, BUT said that the link between the groups providing information and the actual service-providers (i.e. abortion clinics in UK) were so tenuous, that the groups’ activities could not be said to come within the treaty article permitting free movement of people to obtain services.

  • I.e. the provision of leaflets by the group did not constitute free provision of services.

• The court therefore avoided the political issue. 

AG Van Gerven (DIFFERENT approach to ECJ)

• Abortion is a service within Article 50. The article includes (case law) the right to go abroad to receive services.

  • However he says that this must include the right to receive info/advertising about services abroad, or the right to go to other MSs to receive services would be severely restricted.

• He concludes that “national rules which, albeit not discriminatory, may, overtly or covertly, actually or potentially, impede intra-Community trade in services fall in principle within the scope of Articles 59 and 60 EEC. I say 'in principle' advisedly, because such national rules may nevertheless be compatible with those Treaty provisions where they are justified by imperative requirements of public interest”.

• Here, using ECHR/proportionality reasoning he found that it was not unlawful to impose a prohibition on info.