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

1 . FREE MOVEMENT OF GOODS - DEROGATIONS - GROUNDS OF PUBLIC MORALITY - PROHIBITION ON THE IMPORTATION OF GOODS CONSIDERED TO BE INDECENT OR OBSCENE - PERMISSIBILITY - CONDITION - PROHIBITION ON THE MANUFACTURE AND MARKETING OF THE SAME GOODS ON THE NATIONAL TERRITORY - DIFFERENCES IN THE LAWS IN FORCE IN THE TERRITORY OF THE SAME MEMBER STATE - OVERALL ASSESSMENT

( EEC TREATY , ART . 36 )

2 . INTERNATIONAL AGREEMENTS - AGREEMENTS OF THE MEMBER STATES - AGREEMENTS CONCLUDED PRIOR TO THE EEC TREATY - ARTICLE 234 OF THE TREATY - OBJECT - SCOPE - JUSTIFICATION OF RESTRICTIONS IN INTRA-COMMUNITY TRADE - NOT ACCEPTABLE

( EEC TREATY , ART . 234 )

Summary

1 . A MEMBER STATE MAY NOT RELY ON GROUNDS OF PUBLIC MORALITY WITHIN THE MEANING OF ARTICLE 36 OF THE EEC TREATY IN ORDER TO PROHIBIT THE IMPORTATION OF CERTAIN GOODS ON THE GROUND THAT THEY ARE INDECENT OR OBSCENE WHEN ITS LEGISLATION CONTAINS NO PROHIBITION ON THE MANUFACTURE AND MARKETING OF THE SAME GOODS ON ITS TERRITORY .

THE QUESTION WHETHER SUCH A PROHIBITION EXISTS IN A STATE COMPRISED OF DIFFERENT CONSTITUENT PARTS WHICH HAVE THEIR OWN INTERNAL LEGISLATION CAN BE RESOLVED ONLY BY TAKING INTO CONSIDERATION ALL THE RELEVANT LEGISLATION . ALTHOUGH IT IS NOT NECESSARY , FOR THE PURPOSES OF THE APPLICATION OF ARTICLE 36 , THAT THE MANUFACTURE AND MARKETING OF THE PRODUCTS WHOSE IMPORTATION HAS BEEN PROHIBITED SHOULD BE PROHIBITED IN THE TERRITORY OF ALL THE CONSTITUENT PARTS , IT MUST AT LEAST BE POSSIBLE TO CONCLUDE FROM THE APPLICABLE RULES , TAKEN AS A WHOLE , THAT THEIR PURPOSE IS , IN SUBSTANCE , TO PROHIBIT THE MANUFACTURE AND MARKETING OF THOSE PRODUCTS .

THAT IS NOT THE CASE OF RULES UNDER WHICH SUCH GOODS MAY BE MANUFACTURED FREELY AND MARKETED SUBJECT ONLY TO AN ABSOLUTE PROHIBITION ON THE TRANSMISSION OF SUCH GOODS BY POST , A RESTRICTION ON THEIR PUBLIC DISPLAY AND , IN CERTAIN AREAS , A SYSTEM OF LICENSING OF PREMISES FOR THE SALE OF THOSE GOODS TO CUSTOMERS AGED 18 YEARS AND OVER .

2 . ARTICLE 234 OF THE EEC TREATY MUST BE INTERPRETED AS MEANING THAT AN AGREEMENT CONCLUDED PRIOR TO THE ENTRY INTO FORCE OF THE EEC TREATY MAY NOT BE RELIED UPON IN ORDER TO JUSTIFY RESTRICTIONS ON TRADE BETWEEN MEMBER STATES . THAT PROVISION , WHICH IS INTENDED TO ENSURE THAT THE APPLICATION OF THE TREATY DOES NOT AFFECT EITHER THE DUTY TO OBSERVE THE RIGHTS OF NON-MEMBER COUNTRIES UNDER AN AGREEMENT PREVIOUSLY CONCLUDED WITH A MEMBER STATE , OR THE OBSERVANCE BY THAT MEMBER STATE OF ITS OBLIGATIONS UNDER THAT AGREEMENT , CONCERNS ONLY THE RIGHTS AND OBLIGATIONS ESTABLISHED BETWEEN THE MEMBER STATES AND NON-MEMBER COUNTRIES .

Parties

IN CASE 121/85

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE HIGH COURT OF JUSTICE FOR A PRELIMINARY RULING IN PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

CONEGATE LIMITED

AND

HM CUSTOMS AND EXCISE

Subject of the case

ON THE INTERPRETATION OF ARTICLES 36 AND 234 OF THE EEC TREATY ,

Grounds

1 BY AN ORDER OF 30 NOVEMBER 1984 , WHICH WAS RECEIVED AT THE COURT ON 29 APRIL 1985 , THE HIGH COURT OF JUSTICE , QUEEN ' S BENCH DIVISION , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 36 AND 234 OF THE EEC TREATY IN ORDER TO ENABLE IT TO ASSESS THE COMPATIBILITY WITH COMMUNITY LAW OF CERTAIN PROVISIONS OF DOMESTIC CUSTOMS LEGISLATION .

2 THOSE QUESTIONS WERE RAISED IN PROCEEDINGS CONCERNING THE SEIZURE BY THE UNITED KINGDOM CUSTOMS AUTHORITIES OF VARIOUS CONSIGNMENTS OF GOODS IMPORTED FROM THE FEDERAL REPUBLIC OF GERMANY BY CONEGATE LIMITED ( HEREINAFTER REFERRED TO AS CONEGATE ). IN THE COURSE OF AN INSPECTION AT THE AIRPORT WHERE THE CONSIGNMENTS ARRIVED , CUSTOMS OFFICIALS DISCOVERED THAT THE GOODS CONSISTED ESSENTIALLY OF INFLATABLE DOLLS WHICH WERE CLEARLY OF A SEXUAL NATURE AND OTHER EROTIC ARTICLES . THEY CONSIDERED THESE GOODS TO BE ' INDECENT OR OBSCENE ' ARTICLES WHOSE IMPORTATION INTO THE UNITED KINGDOM IS PROHIBITED UNDER SECTION 42 OF THE CUSTOMS CONSOLIDATION ACT 1876 .

3 FOLLOWING A COMPLAINT LAID BY THE CUSTOMS AUTHORITIES , THE UXBRIDGE MAGISTRATES COURT ORDERED THE FORFEITURE OF THE GOODS . THAT DECISION WAS UPHELD BY THE SOUTHWARK CROWN COURT . CONEGATE APPEALED BY WAY OF CASE STATED AGAINST THE CROWN COURT ' S DECISION TO THE HIGH COURT , CONTENDING THAT IN THE PARTICULAR CIRCUMSTANCES THE FORFEITURE OF THE GOODS IN QUESTION CONSTITUTED AN INFRINGEMENT OF ARTICLE 30 OF THE EEC TREATY WHICH COULD NOT BE JUSTIFIED ON GROUNDS OF PUBLIC MORALITY WITHIN THE MEANING OF ARTICLE 36 OF THE TREATY .

4 IN SUPPORT OF ITS VIEW , CONEGATE SUBMITTED THAT ALTHOUGH IN ITS JUDGMENT OF 14 DECEMBER 1979 ( CASE 34/79 HENN AND DARBY ( 1979 ) ECR 3795 ) THE COURT RECOGNIZED THAT THE PROHIBITION ON THE IMPORTATION OF GOODS MIGHT BE JUSTIFIED ON GROUNDS OF PUBLIC MORALITY AND THAT IN PRINCIPLE IT WAS FOR EACH MEMBER STATE TO DETERMINE THE REQUIREMENTS OF PUBLIC MORALITY IN ITS TERRITORY , THE OPERATION OF SUCH A PROHIBITION NEVERTHELESS CONSTITUTED A MEANS OF ARBITRARY DISCRIMINATION , WITHIN THE MEANING OF THE SECOND SENTENCE OF ARTICLE 36 , WHERE A LAWFUL TRADE IN THE SAME GOODS EXISTED IN THE MEMBER STATE CONCERNED . CONEGATE ARGUED THAT THAT WAS THE CASE IN THE UNITED KINGDOM WHERE THE MANUFACTURE AND THE MARKETING OF EROTIC ARTICLES WAS NOT SUBJECT TO A GENERAL PROHIBITION , UNLIKE THE PUBLICATION AND MARKETING OF OBSCENE PUBLICATIONS , WHICH WAS AT ISSUE IN THE ABOVE-MENTIONED JUDGMENT OF 14 DECEMBER 1979 .

5 IN THAT RESPECT CONEGATE POINTED OUT THAT THE MANUFACTURE OF THE ARTICLES IN QUESTION IN THESE PROCEEDINGS WAS SUBJECT TO NO RESTRICTION UNDER UNITED KINGDOM LAW , WHILST THE MARKETING OF THE GOODS WAS SUBJECT ONLY TO PROHIBITIONS REGARDING THEIR TRANSMISSION BY POST AND THEIR DISPLAY IN PUBLIC PLACES . OTHER RESTRICTIONS WERE IN FORCE IN CERTAIN OF THE CONSTITUENT PARTS OF THE UNITED KINGDOM . THUS , IN ENGLAND AND WALES THE LOCAL AUTHORITIES MIGHT CHOOSE WHETHER TO LEAVE DISTRIBUTION UNRESTRICTED OR TO LIMIT THE POINTS OF SALE BY ALLOWING DISTRIBUTION ONLY FROM AUTHORIZED SEX SHOPS .

6 THE HIGH COURT TOOK THE VIEW THAT THE DISPUTE RAISED A PROBLEM OF INTERPRETATION OF COMMUNITY LAW . IT THEREFORE STAYED THE PROCEEDINGS AND REQUESTED THE COURT TO GIVE A PRELIMINARY RULING ON THE FOLLOWING QUESTIONS :

' ( 1 ) WHERE CERTAIN ARTICLES ARE SUBJECT TO A NATIONAL ABOSLUTE PROHIBITION ON IMPORTATION INTO A MEMBER STATE FROM ANOTHER MEMBER STATE , ON THE GROUNDS THAT THEY ARE INDECENT OR OBSCENE , IN ORDER TO CONSTITUTE WITHIN THE MEMBER STATE OF IMPORTATION AN ABSENCE OF ' ' LAWFUL TRADE ' ' IN THE ARTICLES IN QUESTION , AS REFERRED TO IN CONSIDERATIONS 21 AND 22 OF THE JUDGMENT OF THE EUROPEAN COURT OF JUSTICE IN CASE 34/79 HENN AND DARBY ( 1979 ) ECR 3795 :

( A ) IS IT SUFFICIENT THAT THESE ARTICLES MAY BE MANUFACTURED AND MARKETED WITHIN THE MEMBER STATE OF IMPORTATION , SUBJECT ONLY TO

( I ) AN ABSOLUTE PROHIBITION ON THEIR TRANSMISSION BY POST

( II)A RESTRICTION ON THEIR PUBLIC DISPLAY AND

( III)A SYSTEM OF LICENSING OF PREMISES FOR THEIR SALE TO CUSTOMERS AGED 18 YEARS AND OVER , IN CERTAIN AREAS OF THE MEMBER STATE AND WHICH LICENSING SYSTEM IN NO WAY AFFECTS THE SUBSTANTIVE LAW ON INDECENCY OR OBSCENITY IN THAT MEMBER STATE ;

OR

( B)IS IT NECESSARY THAT THERE BE AN ABSOLUTE PROHIBITION ON THEIR MANUFACTURING OR MARKETING WITHIN THE MEMBER STATE OF IMPORTATION?

( 2)IF THERE IS A ' ' LAWFUL TRADE ' ' WITHIN A MEMBER STATE OF IMPORTATION IN ARTICLES SUBJECT TO A NATIONAL ABSOLUTE PROHIBITION ON IMPORTATION FROM ANOTHER MEMBER STATE , ON THE GROUNDS THAT THEY ARE INDECENT OR OBSCENE , IS THE MEMBER STATE OF IMPORTATION , IN SUCH CIRCUMSTANCES , JUSTIFIED ON THE GROUNDS OF PUBLIC MORALITY UNDER ARTICLE 36 OF THE EUROPEAN ECONOMIC COMMUNITY TREATY , IN PROHIBITING THE IMPORTATION FROM ANOTHER MEMBER STATE , OF SUCH ARTICLES , ON THE BASIS THAT THEY ARE INDECENT OR OBSCENE , OR DOES SUCH A PROHIBITION CONSTITUTE A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE BTWEEN THE MEMBER STATES?

( 3)DOES THE PROHIBITION ON THE IMPORTATION OF INDECENT OR OBSCENE ARTICLES BY SECTION 42 OF THE CUSTOMS CONSOLIDATION ACT 1876 CONS