Society for the Protection of Unborn Children (Ireland) Ltd ...

Facts

• The Society for the Protection of Unborn Children (Ireland) Ltd (SPUC) sought an injunction in Ireland to prevent student associations from distributing information about abortion services legally available in the United Kingdom.
• At the relevant time, abortion was illegal in Ireland.
• The student associations in Dublin disseminated details on the location and identity of UK clinics where abortions could be legally obtained.
• SPUC argued that the dissemination of this information facilitated access to abortion and thus breached Irish law.

Issues

1. Whether the distribution of information about abortion services lawfully available in another Member State constituted a service within the meaning of Article 59 TFEU.
2. Whether Member States could restrict the movement of information regarding services lawfully provided in another state under the protections of fundamental rights.
3. Whether activities ancillary to service provision, such as information dissemination, fall within the scope of Article 59 TFEU.

Decision

• The ECJ held that distributing information about the location and identity of clinics providing abortion services abroad did not constitute a service under Article 59 TFEU.
• It found that the student associations were not directly involved in providing abortion services and received no financial reward, so their actions were outside the Treaty provisions on services.
• The Court recognised Member States' right to protect fundamental rights, including the right to life, but stated Article 59 TFEU's scope does not extend to activities not directly related to providing services.
• The ECJ clarified that restricting information dissemination would not prevent women from traveling to obtain lawful abortions elsewhere, but only make access to information more difficult.

Legal Principles

• The free movement of services under Article 59 TFEU applies only to activities directly involved in providing services, not to ancillary acts such as information dissemination.
• There is a legally significant distinction between providing a service and enabling access to it.
• Restrictions by Member States on the dissemination of information related to lawful services in other states must be justified and should not excessively hinder the free movement of information.
• The Court reaffirmed that fundamental rights protection remains within Member States' competence when activities do not directly constitute provision of services under EU law.

Conclusion

The ECJ in SPUC v Grogan clarified that Article 59 TFEU applies only to direct provision of services, not to ancillary information-sharing, and confirmed that Member States retain discretion to regulate such information where fundamental rights are implicated.