Commercial Speech and Freedom of Expression in EU Law: A Paradigm of a Sliding Scale of Review for the European Court of Justice?

• Autores: Dimitrios Doukas
• Localización: European law review, ISSN 0307-5400, Nº 6, 2019, págs. 741-766
• Idioma: inglés
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• Resumen

  • Despite the recognition of equivalence of art.11 EUCFR and art.10 ECHR, the CJEU’s case law falls behind the standards of protection afforded by the ECtHR to commercial speech. It lacks a systematic or consistent scrutiny of interferences with commercial speech in the light of freedom of expression and the media, as it overall assumes that commercial speech makes no (significant) contribution to public discourse and constitutes a threat to pluralism. This comparative analysis of the case law of the ECtHR with that of the CJEU provides a taxonomy of standards, which the CJEU should apply to restrictions on commercial speech from a fundamental rights perspective, whether these interfere with free movement or result from internal market legislation. Such standards are to build upon the ECtHR’s case law, which has produced a fully-fledged set of standards of scrutiny on a sliding scale, depending on the right involved, the medium used and the contribution, if any, of commercial speech to pluralism. The CJEU may even go further and apply more robust or nuanced standards, not least because it is predominantly concerned with economic matters.