Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Keywords

1 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - CONCEPT - PROHIBITION ON IMPORTATION - INCLUSION

( EEC TREATY , ART . 30 )

2 . FREE MOVEMENT OF GOODS - DEROGATIONS - GROUNDS OF PUBLIC MORALITY - DETERMINATION - POWERS OF MEMBER STATES - PROHIBITION ON IMPORTATION OF ARTICLES HAVING AN INDECENT OR OBSCENE CHARACTER - APPLICATION TO WHOLE OF NATIONAL TERRITORY - DIFFERENCES BETWEEN LAWS IN FORCE ON TERRITORY OF A SINGLE MEMBER STATE - NO EFFECT

( EEC TREATY , ART . 36 )

3 . FREE MOVEMENT OF GOODS - DEROGATIONS - ARTICLE 36 OF TREATY - OBJECT OF SECOND SENTENCE

( EEC TREATY , ART . 36 )

4 . FREE MOVEMENT OF GOODS - DEROGATIONS - GROUNDS OF PUBLIC MORALITY - ABSOLUTE PROHIBITION ON IMPORTATION - COMPLETE ILLEGALITY OF INTERNAL TRADE IN THE GOODS IN QUESTION - ARBITRARY DISCRIMINATION - DISGUISED RESTRICTION - NONE

( EEC TREATY , ART . 36 )

5 . INTERNATIONAL AGREEMENTS - DEROGATIONS - AGREEMENTS OF MEMBER STATES - GENEVA CONVENTION , 1923 , FOR THE SUPPRESSION OF TRAFFIC IN OBSCENE PUBLICATIONS - UNIVERSAL POSTAL CONVENTION , RENEWED AT LAUSANNE IN 1974 - INCOMPATIBILITY BETWEEN OBLIGATIONS ARISING FROM THOSE CONVENTIONS AND THOSE ARISING FROM THE EEC TREATY - NONE

( EEC TREATY , ARTS . 36 AND 234 )

Summary

1 . ARTICLE 30 OF THE EEC TREATY APPLIES ALSO TO PROHIBITIONS ON IMPORTS INASMUCH AS THEY ARE THE MOST EXTREME FORM OF RESTRICTION . THE EXPRESSION USED IN ARTICLE 30 MUST THEREFORE BE UNDERSTOOD AS BEING THE EQUIVALENT OF THE EXPRESSION ' ' PROHIBITIONS OR RESTRICTIONS ON IMPORTS ' ' OCCURRING IN ARTICLE 36 . HENCE A LAW OF A MEMBER STATE PROHIBITING ANY IMPORTATION OF PORNOGRAPHIC ARTICLES INTO THAT STATE CONSTITUTES A QUANTITATIVE RESTRICTION ON IMPORTS WITHIN THE MEANING OF ARTICLE 30 OF THE TREATY .

2 . UNDER THE FIRST SENTENCE OF ARTICLE 36 OF THE EEC TREATY IT IS IN PRINCIPLE FOR EACH MEMBER STATE TO DETERMINE IN ACCORDANCE WITH ITS OWN SCALE OF VALUES AND IN THE FORM SELECTED BY IT THE REQUIREMENTS OF PUBLIC MORALITY IN ITS TERRITORY .

EACH MEMBER STATE IS ENTITLED TO IMPOSE PROHIBITIONS ON IMPORTS JUSTIFIED ON GROUNDS OF PUBLIC MORALITY FOR THE WHOLE OF ITS TERRITORY , AS DEFINED IN ARTICLE 227 OF THE TREATY , WHATEVER THE STRUCTURE OF ITS CONSTITUTION MAY BE AND HOWEVER THE POWERS OF LEGISLATING IN REGARD TO THE SUBJECT IN QUESTION MAY BE DISTRIBUTED . THE FACT THAT CERTAIN DIFFERENCES EXIST BETWEEN THE LAWS ENFORCED IN THE DIFFERENT CONSTITUENT PARTS OF A MEMBER STATE DOES NOT THEREBY PREVENT THAT STATE FROM APPLYING A UNITARY CONCEPT IN REGARD TO PROHIBITIONS ON IMPORTS IMPOSED , ON GROUNDS OF PUBLIC MORALITY , ON TRADE WITH OTHER MEMBER STATES .

THE FIRST SENTENCE OF ARTICLE 36 UPON ITS TRUE CONSTRUCTION THUS MEANS THAT A MEMBER STATE MAY , IN PRINCIPLE , LAWFULLY IMPOSE PROHIBITIONS ON THE IMPORTATION FROM ANY OTHER MEMBER STATE OF ARTICLES WHICH ARE OF AN INDECENT OR OBSCENE CHARACTER AS UNDERSTOOD BY ITS DOMESTIC LAWS . SUCH PROHIBITIONS MAY LAWFULLY BE APPLIED TO THE WHOLE OF ITS NATIONAL TERRITORY EVEN IF , IN REGARD TO THE FIELD IN QUESTION , VARIATIONS EXIST BETWEEN THE LAWS IN FORCE IN THE DIFFERENT CONSTITUENT PARTS OF THE MEMBER STATE CONCERNED .

3 . THE SECOND SENTENCE OF ARTICLE 36 OF THE EEC TREATY IS DESIGNED TO PREVENT RESTRICTIONS ON TRADE BASED ON THE GROUNDS MENTIONED IN THE FIRST SENTENCE OF THAT ARTICLE FROM BEING DIVERTED FROM THEIR PROPER PURPOSE AND USED IN SUCH A WAY AS EITHER TO CREATE DISCRIMINATION IN RESPECT OF GOODS ORIGINATING IN OTHER MEMBER STATES OR INDIRECTLY TO PROTECT CERTAIN NATIONAL PRODUCTS .

4 . IF A PROHIBITION ON THE IMPORTATION OF GOODS IS JUSTIFIABLE ON GROUNDS OF PUBLIC MORALITY AND IF IT IS IMPOSED WITH THAT PURPOSE THE ENFORCEMENT OF THAT PROHIBITION CANNOT , IN THE ABSENCE WITHIN THE MEMBER STATE CONCERNED OF A LAWFUL TRADE IN THE SAME GOODS , CONSTITUTE A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE CONTRARY TO ARTICLE 36 OF THE EEC TREATY .

5 . IN SO FAR AS A MEMBER STATE AVAILS ITSELF OF THE RESERVATION RELATING TO THE PROTECTION OF PUBLIC MORALITY PROVIDED FOR IN ARTICLE 36 OF THE EEC TREATY , THE PROVISIONS OF ARTICLE 234 OF THAT TREATY DO NOT PRECLUDE THAT STATE FROM FULFILLING THE OBLIGATIONS ARISING FROM THE GENEVA CONVENTION , 1923 , FOR THE SUPPRESSION OF TRAFFIC IN OBSCENE PUBLICATIONS AND FROM THE UNIVERSAL POSTAL CONVENTION ( RENEWED AT LAUSANNE IN 1974 , WHICH CAME INTO FORCE ON 1 JANUARY 1976 ).

Parties

IN CASE 34/79

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HOUSE OF LORDS FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THEM BETWEEN

REGINA

AND

MAURICE DONALD HENN AND JOHN FREDERICK ERNEST DARBY

Subject of the case

ON THE INTERPRETATION OF ARTICLES 30 AND 36 OF THE TREATY , BEARING IN MIND THE NATIONAL AND CONVENTIONAL PROVISIONS PROHIBITING THE IMPORTATION OF ARTICLES WHICH ARE OF A PORNOGRAPHIC CHARACTER .

Grounds

1 BY ORDER OF 22 FEBRUARY 1979 , RECEIVED AT THE COURT OF JUSTICE ON 1 MARCH 1979 , THE HOUSE OF LORDS , PURSUANT TO ARTICLE 177 OF THE EEC TREATY , REFERRED TO THE COURT A NUMBER OF QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 30 , 36 AND 234 OF THE TREATY . THESE QUESTIONS HAVE ARISEN IN THE CONTEXT OF CRIMINAL PROCEEDINGS AGAINST THE APPELLANTS WHO , ON 14 JULY 1977 , WERE CONVICTED AT IPSWICH CROWN COURT OF A NUMBER OF OFFENCES . ONLY ONE OF THE CHARGES BROUGHT AGAINST THE APPELLANTS IS RELEVANT TO THE PRESENT REFERENCE - THAT OF BEING ' ' KNOWINGLY CONCERNED IN THE FRAUDULENT EVASION OF THE PROHIBITION OF THE IMPORTATION OF INDECENT OR OBSCENE ARTICLES , CONTRARY TO SECTION 42 OF THE CUSTOMS CONSOLIDATION ACT , 1876 , AND SECTION 304 OF THE CUSTOMS AND EXCISE ACT , 1952 . ' '

2 THE ARTICLES INVOLVED IN THE CHARGE AGAINST THE APPELLANTS FORMED PART OF A CONSIGNMENT OF SEVERAL BOXES OF OBSCENE FILMS AND MAGAZINES WHICH HAD BEEN BROUGHT INTO THE UNITED KINGDOM ON 14 OCTOBER 1975 BY A LORRY WHICH ARRIVED AT FELIXSTOWE BY FERRY FROM ROTTERDAM . THE CHARGE RELATED TO SIX FILMS AND SEVEN MAGAZINES , ALL OF DANISH ORIGIN .

3 THE APPELLANTS APPEALED AGAINST THEIR CONVICTION TO THE COURT OF APPEAL OF ENGLAND AND WALES . THAT COURT DISMISSED THEIR APPEALS BY JUDGMENT OF 13 JULY 1978 . ON 9 NOVEMBER 1978 THE HOUSE OF LORDS GRANTED BOTH APPELLANTS LEAVE TO APPEAL . ON 29 JANUARY 1979 , AFTER HEARING THE APPELLANTS , THE HOUSE OF LORDS DECIDED THAT IT WAS NECESSARY TO REFER TO THE COURT OF JUSTICE , IN ACCORDANCE WITH ARTICLE 177 OF THE TREATY , THE QUESTIONS SET FORTH IN THE ORDER SEEKING A PRELIMINARY RULING .

4 THE APPELLANTS CONTENDED THAT THE UNITED KINGDOM HAD NO CONSISTENT POLICY OF PUBLIC MORALITY IN REGARD TO INDECENT OR OBSCENE ARTICLES . IN THAT RESPECT THEY POINTED TO DIFFERENCES IN THE LAW APPLIED IN THE DIFFERENT CONSTITUENT PARTS OF THE UNITED KINGDOM . THEY CONTENDED FURTHERMORE THAT A COMPLETE PROHIBITION OF THE IMPORTATION OF INDECENT OR OBSCENE ARTICLES RESULTED IN THE APPLICATION TO IMPORTATION OF STRICTER RULES THAN THOSE WHICH APPLIED INTERNALLY AND CONSTITUTED ARBITRARY DISCRIMINATION WITHIN THE MEANING OF ARTICLE 36 OF THE TREATY .

5 ACCORDING TO THE AGREED STATEMENT OF LAW ACCOMPANYING THE ORDER SEEKING THE PRELIMINARY RULING , IT IS TRUE THAT , IN THIS FIELD , THE LAWS OF THE DIFFERENT PARTS OF THE UNITED KINGDOM , THAT IS TO SAY , ENGLAND AND WALES , SCOTLAND , NORTHERN IRELAND AND THE ISLE OF MAN , DIFFER FROM EACH OTHER AND THAT EACH IS DERIVED FROM A NUMBER OF DIFFERENT SOURCES , SOME OF WHICH ARE TO BE FOUND IN THE COMMON LAW AND OTHERS IN STATUTE .

6 ACCORDING TO THE SAME STATEMENT , THE VARIOUS LAWS OF THE UNITED KINGDOM RECOGNIZE AND APPLY TWO DIFFERENT AND DISTINCT CRITERIA . THE FIRST , REFERRED TO IN THE STATEMENT AS ' ' STANDARD A ' ' , RELATES TO THE WORDS ' ' INDECENT OR OBSCENE ' ' WHICH APPEAR IN THE CUSTOMS LEGISLATION AND IN CERTAIN OTHER LEGISLATION AND ARE ALSO USED TO INDICATE THE AMBIT OF THE ENGLISH COMMON LAW OFFENCE OF ' ' OUTRAGING PUBLIC DECENCY ' ' . THESE WORDS CONVEY , ACCORDING TO THE STATEMENT , A SINGLE IDEA , THAT OF OFFENDING AGAINST RECOGNIZED STANDARDS OF PROPRIETY , ' ' INDECENT ' ' BEING AT THE LOWER END OF THE SCALE , AND ' ' OBSCENE ' ' AT THE UPPER END .

7 THE SECOND CRITERION , REFERRED TO IN THE STATEMENT AS ' ' STANDARD B ' ' , RELATES TO THE WORD ' ' OBSCENE ' ' AS USED ALONE IN THE OBSCENE PUBLICATIONS ACTS , 1959 AND 1964 , ( WHICH APPLY TO ENGLAND AND WALES ONLY ) AND IN DESCRIBING THE AMBIT OF CERTAIN COMMON LAW OFFENCES IN ENGLAND AND WALES , SCOTLAND AND NORTHERN IRELAND . ACCORDING TO THE STATEMENT , THIS WORD APPLIES TO A MORE RESTRICTED CLASS OF MATERIAL , NAMELY THAT WHICH TENDS TO ' ' DEPRAVE AND CORRUPT ' ' THOSE EXPOSED TO THE MATERIAL .

8 THE OBSCENE PUBLICATIONS ACTS , 1959 AND 1964 , CREATE CERTAIN OFFENCES IN REGARD TO THE PUBLICATION OF OBSCENE ARTICLES BUT EXCLUDE FROM THEIR FIELD OF APPLICATION ' ' OBSCENE ARTICLES ' ' , AS DEFINED THEREIN , IF THEIR PUB