Keywords

Summary



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 ).