Limiting Freedom of Assembly Based on Harm to Third Parties : The Balancing of Economic Freedoms and Fundamental Rights in the European Union
This chapter analyzes the limitations that can be imposed on the exercise of freedom of assembly when the burden on third parties also restricts a fundamental economic freedom. This analysis will be put in the wider context of fundamental rights in economic integration processes, but focused on the right to freedom of assembly. In 2006, MERCORSUR was faced with a controversy regarding restrictions on the free movement of goods because protests on important bridges between Argentina and Uruguay blocked traffic. The controversy could not be settled peacefully, and was brought before an ad hoc arbitral panel, pursuant to the Olivos Protocol. The panel analyzed arguments of the parties, one of which was an Argentinean argument based on respect for the right to freedom of assembly of the protesters. This was the first time a fundamental rights argument was brought in a dispute settlement proceeding in MERCOSUR, and it was rejected. Using notions of fundamental rights in economic integration as the general background, and in light of the jurisprudence of the European Court of Justice in the Commission v. France and Schmidberger cases, this paper will assess how clashes with third party interests ought to be addressed, especially, in the MERCOSUR case, in light of the use of defenses before international fora that seem not to correspond to internal practices regarding freedom of assembly