Can a company rely on human rights law when the government restricts how it can market its products?

This article discusses the possibility of a company to rely on human rights law against government restrictions, with reference to a preliminary ruling of the Court of Justice of the European Union.

In the case of Neptune Distribution SNC v. Ministre de l’Économie et des Finances (Minister for Economic Affairs and Finance), a dispute arose at a French court between Neptune Distribution, a company distributing natural sparkling mineral waters and the Ministry of Economic Affairs and Finance. The dispute arose following the service of a formal notice to Neptune Distribution to remove some indications from its labels and advertising.

In the context of that dispute, a request for a preliminary ruling by the Court of Justice of the European Union ("CJEU") was made, concerning the interpretation of EU law on nutrition and health claims made on food and the impact of this interpretation to human rights. Neptune relied to the EU Charter of Fundamental Rights, arguing that its freedom to conduct a business (Article 16) and freedom of expression and information (Articles 10 and 11) were violated.

The CJEU held Neptune Distribution rights were not violated and held, amongst others, the following:

"63. In that regard, it must be recalled that the freedom of expression and information is enshrined in Article 11 of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties.

64. That freedom is also protected in accordance with Article 10 of the ECHR, which applies, inter alia, as is clear from the case-law of the European Court of Human Rights, to the circulation by an entrepreneur of commercial information in particular in the form of an advertising slogan (see European Court of Human Rights judgments in Casado Coca v. Spain, 24 February 1994, Series A no. 285‑A, §§ 35 and 36, and Krone Verlag GmbH & Co. KG (No. 3) v. Austria, no. 39069/97, ECHR 2003-XII, §§ 19 and 20).

65. Since the freedom of expression and information laid down in Article 11 of the Charter has, as is clear from Article 52(3) thereof and the Explanations Relating to the Charter as regards Article 11, the same meaning and scope as the freedom guaranteed by the ECHR, it must be held that that freedom covers the use by a business, on packaging, labels and in advertising for natural mineral waters, of claims and indications referring to the sodium or salt content of such waters.

66. Furthermore, it must be observed that the freedom to conduct a business protected, in accordance with Article 16 of the Charter, must be considered in relation to its social function (see, to that effect, judgment in Deutsches Weintor, C‑544/10, EU:C:2012:526, paragraph 54).

67. The prohibition on the displaying on the packaging, labels and in the advertising for natural mineral waters of any claim or indication referring to the fact that such waters have a low sodium content which may mislead the consumer as to that content is an interference with the freedom of expression and information of the person carrying on that business and with his freedom to conduct that business.

68. While those freedoms may nevertheless be limited, any limitation on their exercise must, in accordance with Article 52(1) of the Charter, be provided for by law and respect the essence of those rights and freedoms. Furthermore, as is clear from that provision, subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others."

In light of the above, it should be emphasised that, although in that particular case the Court did not find a violation, it was made clear that businesses are protected by and can rely on the Charter of Fundamental Rights of the European Union. Therefore, it seems that companies may be able under specific circumstances to raise human rights arguments.

Nevertheless, when the Court is examining such argument, the determination of the validity of the contested provisions shall be carried out in accordance with the need to reconcile the requirements of the protection of those various fundamental rights protected by the EU legal order, and striking a fair balance between them.

If your business is facing legal restrictions that you believe are disproportionate or harmful to your operations, consider seeking legal advice.

This article has been written by Chara Palekythriti, Lawyer - Legal Consultant ©

Disclaimer: This article is for informative purposes only and does not constitute legal advice, opinion or otherwise.