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