Omega Spielhallen v Bonn was a case which was presented before the European Court of Justice (ECJ) and which involved a German firm and German authorities. This case constitutes a good illustration of how European law works and of the interaction between State Courts and European institutions. Also, it was a case of prime importance for Human Rights in the Community since the ECJ ruled that fundamental human rights, whether they arise from the Constitutions of the Member States or from provisions of the ECHC, can limit the freedom to provide services. The firm Omega was producing combat games which gave the users the opportunity to "play at killing" with lasers. The Bonn police saw this activity as a threat to public secturity and prohibited it. However, the firm objected against this provision and the case was brought before the German Federal Court. The main argument of this Court was that the game was an affront to human dignity as guaranteed by the first Article of the German Constitution. However, it decided to refer a question to the European Court of Justice, because the prohibition of 'laserdome' was not compaticle with fundamental freedoms guaranteed by the EC Treaty, such as the freedom to provide services and the free movement of goods. This issue was raised because Omega was buying material to assemble the laser from a British company, which, after this prohibition was 'prevented from providing services' to a consumer, from another Member State. The Court asked; 'to what extent the restriction which the referring court has found to exist is capable of affecting the freedom to provide services and the free movement of goods, which are governed by different Treaty provisions ?'. The ECJ eventually confirmed that the protection of fundamental rights justifies, a restriction upon fundamental freedoms. The Community legal order's priority is to to ensure respect for human dignity as a general principle of law. This case sheds light on the relationship between Federal and European institutions.
Firstly, it illustrates an aspect of the role of the European Court of Justice, whicb is, being an assistant to the national court, when asked to give a 'preliminary ruling'. The ECJ is at the top of the hierarchy of Community law; it is the last Court to which the case is presented, the Federal Court needs its judgment in order to close the case.
Then, this case pinpoints one of the ECJ's main missions: to ensure the uniform interpretation and application of Community Law throughout the Community. In fact, it proves how a State Court can refer a question to the ECJ to clarify certain points on which Community Law is not specific. The two main points were : either prohibiting an economic activity to preserve human rights was compatible with Community Law and if the Community believed in the need for a general conception of law in order to restrict the freedom to provide services in Member States. In fact, the prohibition issued by the Bonn police was justified since Omega constituted a danger to public policy in Germany, but the Federal Court realized that judicial review was necessary before applying a derogation on Article 49 EC, since the circumstances which may justify recourse to this derogation vary from one Member State to another. Omega Spielhallen v Bonn is an example of good harmony between the Court of Justice and German courts, since the German Constitutional right to Human dignity was pleaded by the German authorities and was upheld by the Court. Finally a few precedents are cited in this case: even though there is no doctrine of stare decisis in the ECJ, the Court does follow its previous decisions in most cases. The Court cites precedents when they support its reasoning, they are not binding. Case law of the European Court is essential for the development of the Community Law.
In the Schmidgerger case, for instance, human rights prevailed when in conflict between with free circulation. Individuals were given the right to protest on an Austrian highway, blocking traffic. The cases Custom and Excise v Schindler, Laara v Kihlakunnansyyttaja and Questore di Verona v Zenatti, all dealt with the conflict between human rights and the freedom to provide services guaranteed by the Community Law. In each case, the ECJ privileged the protection of the citizens' rights, over the interests of the businesses. The case for study: Omega v Bonn, was also symbolical decision in the field of Human Rights for the European Union and it illustrates the balance between State and Community Law.
At its origins, Community law did not guarantee the individual rights of citizens. However, after WWII, the Member States realized the importance of the concept of Human Rights and by 1955, all of the original members of the EEC, except France, had ratified the European Convention of Human Rights (ECHR). Today, fundamental rights form an integral part of the general principles of law in the Union and the Courts ensure their observance, no matter their provenance. Therefore, the ECJ declared in Omega v Bonn, that it is 'immaterial' whether a fundamental Human right is guaranteed by a national Constitution or by the Community legal order as a general principle of law, because the law of the Union would protect that right whatever its source.
Because of this clarification, the Omega v Bonn case shows the extent to which fundamental rights are guaranteed by Community law, as well as the close link between consitutionally protected norms in the Member States and the general principles of the Community.
