Key facts of the case:

Reference for a preliminary ruling: Oberlandesgericht Innsbruck - Austria.

Free movement of goods - Restriction resulting from actions of individuals - Obligations of the Member States - Decision not to prohibit a demonstration by environmental protesters which resulted in the complete closure of the Brenner motorway for almost 30 hours - Justification - Fundamental rights - Freedom of expression and freedom of assembly - Principle of proportionality.

Outcome of the case:

119. In the light of all the foregoing considerations, I am of the opinion that the Court should give the following answers to the questions raised by the Oberlandesgericht Innsbruck:

• Community law requires an action for reparation to be available against the State when a plaintiff can establish that he has suffered loss or damage attributable, by a direct causal link, to a sufficiently serious breach of a rule of Community law intended to confer rights on the individual;
• such loss or damage includes loss of the opportunity to make a profit where all the other conditions for reparation are met;
• national rules which preclude a claim for reparation on the basis of such loss or damage, or which make it impossible or excessively difficult for a plaintiff to establish the existence or extent of such loss or damage, may not be applied;
• however, where in the absence of such rules the plaintiff is unable to establish the existence of such loss or damage, it is not necessary for the national court hearing the claim to consider the other Community-law aspects;
• reparation must be commensurate with the loss or damage sustained but may, if the pecuniary equivalent cannot be determined with accuracy, be calculated on an appropriate flat-rate basis;
• a failure by a Member State to indicate in national legislation that Treaty provisions having direct effect must be observed cannot constitute a breach of Community law;
• the specific aim pursued by an authorised political demonstration is of no relevance when determining whether the fact that a Member State's authorities permitted it to go ahead constitutes a sufficiently serious breach of Community law for the Member State to incur liability;
• in the light of the facts of the present case as made available to the Court, the national court would be entitled to find that the authorisation did not constitute a sufficiently serious breach of Community law for the State to incur liability towards any persons sustaining loss or damage directly caused by the demonstration.
• for the purpose of allowing citizens to exercise their rights to freedom of expression and assembly
• of a demonstration which would block one of a number of major transit routes through the Alps for a period of 28 hours on a single occasion
• when adequate steps were taken in advance to ensure that disruption of the flow of goods traffic, whilst sufficient to ensure that the demonstration was not deprived of its intended effect, was not excessive for that purpose