C-34/79

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.

THE COURT

composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart and G. Bosco, Judges

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

is made punishable by the imposition of a Act, 1876, applies Standard A. In financial penalty of three times the value addition, the constituent parts of the of the goods involved or £100, customs territory of the United Kingdom whichever is the greater, and/or have separate laws which are applicable imprisonment for a term not exceeding only in their respective legal districts. two years. Save for the Isle of Man (which applies only Standard A) they apply in differing ways both Standards A and B, as well as These two customs statutes apply to all incorporating other offences which do not fall under either of those standards. constituent parts of the customs territory of the United Kingdom, that is to say, England, Scotland, Wales, Northern The mere possession of articles which Ireland and the Isle of Man. It does not offend against either Standard A or apply to the Channel Islands, which are Standard B by a person in any part of not a part of the United Kingdom. the territory of the United Kingdom is not made a criminal offence.

Two different and distinct criteria are

recognized and applied by several 2. The Facts constituent parts of the customs territory of the United Kingdom when dealing with articles of the kind found in this On 14 October 1975 a lorry arrived at case: the port of Felixstowe in the United Kingdom from Europoort at Rotterdam. In it were a number of boxes containing (a) The first, hereinafter referred to as a large consignment of films and Standard A, relates to the words magazines of a sexually explicit nature. "indecent or obscene". These words The lorry was cleared through customs, are to be given their ordinary the necessary entry for customs purposes dictionary meaning of repulsive, declaring the cargo to consist of mixed filthy, loathsome or lewd, generally goods. Later the Appellant Maurice

United Kingdom. The brochures were sent out by them unsolicited. At the outset of the trial application was made to the trial judge by counsel acting for both appellants to quash the count Examination of the films and magazines which is the subject of this reference on imported on 14 October showed that the grounds that since the accession of they had originated in Denmark, the United Kingdom to the European Germany and Sweden. Communities by reason of section 2 (1) and Schedule I part 1 paragraph 2 of the European Communities Act, 1972, Article 30 of the EEC Treaty operated On 17 May 1977 at Ipswich Crown so as to invalidate section 42 of the Court the appellants were indicted, inter Customs Consolidation Act, 1876, in so alia, with being knowingly concerned in far as it related to goods coming from a the fraudulent evasion of the prohibition Member State and defined by Article 9 of the importation of indecent or of the Treaty. This application was obscene articles contrary to section 42 of rejected. The appellants pleaded "Not the Customs Consolidation Act, 1876, Guilty" to the charge. The application and section 304 of the Customs and was renewed at the end of the case for Excise Act, 1952. the prosecution. It was again rejected.

Both the films (which were of a size ordinarily used in domestic projectors) Both appellants were convicted. On and the magazines depict detailed and 15 July they were sentenced: Henn to explicit sexual activities, including eighteen months' imprisonment, Darby

JUDGMENT OF M. 12. 1979 — CASE 34/79

to two years' imprisonment. They were 2. If the answer to Question 1 is in the further ordered to pay a financial affirmative, does the first sentence of penalty. Article 36 upon its true construction mean that a Member State may Both appellants appealed against their lawfully impose prohibitions on the convictions. The appeals were heard by importation of goods from another the Court of Appeal (Criminal Division) Member State which are of an

1. Is a law of a Member State which 5. If the answer to Question 4 is in the prohibits the import into that State of affirmative, does the fact that the pornographic articles a measure prohibition imposed on the impor- having equivalent effect to a tation of such goods is different in quantitative restriction on imports scope from that imposed by the within the meaning of Article 30 of criminal law upon the possession and the Treaty establishing the European publication of such goods within the Economic Community? Member State or any part of it

REGINA HENN AND DARBY

necessarily constitute a means of Upon hearing the report of the Judge- arbitrary discrimination or a disguised Rapporteur and the views of the restriction on trade between Member Advocate General, the Court decided States so as to conflict with the that a preparatory inquiry was not requirements of the second sentence necessary. of Article 36?

6. If it be the fact that the prohibition II — Summary of the written imposed upon importation is, and a observations submitted to prohibition such as is imposed upon the Court possession and publication is not, capable as a matter of administration of being applied by customs officials 1. Observations ofthe appellants responsible for examining goods at the point of importation, would that fact have any bearing upon the First question answer to Question 5? It is submitted by the appellants that 7. Independently of the questions posed section 42 of the 1876 Act by reason of above, may a Member State lawfully the fact that it contains a total

its Legal Adviser Trevor Townsend, Director of Public Prosecutions Whyte acting as Agent, assisted by Alan and Another (1972) A.C. 849 at page 861 Newman, Barrister-at-Law, submitted Lord Wilberforce observed that as a written observations. result of the Obscene Publications Act,

JUDGMENT OF 14. 12. 1979 — CASE 34/79

1959, instead of a presumed consequence restriction on imports than is strictly of obscenity, a tendency to deprave and necessary and must be the only means corrupt became the test of obscenity and suitable to attain that objective. In became what had to be proved. One particular, a restriction will not be consequence was that the section does justified, however beneficial, if its not hit "articles" which merely shock purpose is merely to lighten the load of however many people. the administration, for example make it easier for the police to enforce domestic laws, unless its absence will impose a burden on the authorities in terms of effort and/or expenditure which is intolerable. It must be shown that there The appellants base their submission that are no effective measures available to there must be shown to exist a clearly attain the objectives desired which do defined public policy or rules of public not hinder intra-Community trade. The morality before a restriction can be said appellants submit that the restriction on to be justified under Article 36 on an the import of articles within Standard A analogy with the case-law of the Court is not necessary to prevent those articles' on Article 48 (see Case 41/74, Van Duyn being sold in the streets or exhibited [1974] ECR 1337). Although it is not publicly. So far as the prevention of pub- necessary for the activities of an organi- lication of articles within Standard B is zation considered socially harmful to be concerned the prohibition in section 42 is made unlawful, if legislation is not too wide as covering a more extensive considered appropriate, the competent range of articles than those falling within authorities of the Member State must Standard B so that section 42 cannot be have a clearly defined standpoint as said to be proportionate to the aim it is regards those activities and have taken sought to achieve. administrative measures to counteract

constituent parts must be examined intention have the effect of being separately to discover whether they discriminatory. justify the exceptions permitted by Article 36 in that particular constituent part. If the argument of the Crown is accepted it might result in restrictive Fifth question measures contrary to Article 30 being preserved or introduced in a constituent part of a Member State like England, In Case 4/75 (REWE-Zentralfinanz whose population is in the region of [1977] ECR 843), the Court held that an 46 000 000 with considerable trade with inspection at the frontier on goods the Community, because the restrictions imported from a Member State might could be justified exceptions under constitute arbitrary discrimination if Article 36 for a much smaller constituent domestic products are not subject to an part with significantly smaller intra- equivalent examination. The different Community trade, such as Scotland with treatment of imported and domestic a population of approximately 5 500 000, products would not be discriminatory if or even a tiny part such as the Isle of effective measures are taken in order to Man with a population of 50 000 and an prevent the distribution of contaminated insignificant trade with the Community. domestic produce and if there was reason to believe on the basis of previous experience that there was a risk of contamination spreading if no inspection was held on importation. Applying that Fourth question test to the material covered by section 42 of the 1876 Act it may be seen that the fact that there is a total prohibition at the frontier and that domestically there is not a total prohibition prima facie The appellants submit that the true constitutes discrimination and since there meaning of Article 36 is that Member is not prohibition domestically it cannot States are permitted to retain restrictions be said that effective measures have been on imports if they are able to frame taken to prevent the distribution of the provisions which are necessary to attain articles concerned. The appellants submit the objectives afforded by that article which do not discriminate between that the fact that the prohibition imposed on the importation of such goods in Member States. In Case 8/74 (Procureur section 42 of the 1876 Act is different in du Roi Benoit & Gustave Dassonville scope from that imposed by the criminal [1974] ECR 837), the Court gave the law domestically constitutes a means of clearest ruling that the second sentence arbitrary discrimination so as to conflict was of overriding effect. It ruled that if the measure constituted a means of with the requirements of the second sentence of Article 36. abritrary discrimination then it is not necessary to consider whether it can be justified as a suitable means of attaining the objective authorized by Article 36. In the second sentence of Article 36 the Sixth question

Community trade such as Standard B. This manifestly could not be the case if public policy or the rules of public First question morality are so clear that they justify the retention of the prohibition. In the view of the United Kingdom Government a total prohibition of imports represents a greater invasion of Seventh question the fundamental principle of free movement of goods than a partial The appellants demonstrate that in so far restraint on imports. Moreover the as English domestic law has followed the wording of Article 36 expressly 1923 Convention it has not consistently recognizes that Article 30 embraces not regarded the definition of "obscene" as only partial but also total prohibitions. being that of Standard A.

REGINA HENN AND DARBY

The term "public morality" does not So far as "public morality" is concerned appear elsewhere in the Treaty. Nor has matters of "indecency and obscenity" fall it been the subject of consideration or within that concept and the content of comment by the Court. Unlike the term the domestic law of the Member State —

"public policy", it is suggested that the and any variation between constituent term "public morality" is comparatively parts of that State — do not affect that self-defining. Like "public policy", question. however, the content of "public morality" must clearly be a matter varying from country to country and indeed time to time. It is thus quite inap- Fourth, fifth and sixth questions propriate for any absolute international standard, and a greater area of discretion must be granted to the Member State than might be appropriate with regard to For the United Kingdom Government, if some of the other, more objective a prohibition on the import of prescribed grounds of derogation. The definition of material is justifiable on grounds of the precise content to be given to the public morality or public policy, that words "indecent and obscene" in the prohibition, though it may discriminate United Kingdom or any of its against trade between Member States, constituent parts can only be for the cannot be said to be a means of arbitrary State and its tribunals. discrimination.

JUDGMENT OF 14. 12. 1979 — CASE 34/79

Secondly, though discrimination or Seventh question restriction may exist where there is a difference in treatment of imported and domestically-produced goods, this will not be the case where the differential The United Kingdom Government treatment can be justified objectively by remains bound to all States which are reference to considerations which apply still party to the Geneva Convention to only to imported goods and are comply with the obligations entered into necessary for the purpose of achieving in that Convention regardless of the the object covered by the ground of identity of the exporting State in any derogation specified in Article 36 on particular case. Article 234 of the Treaty which the Member State relies. The is therefore applicable (cf. Cases 21 to criteria applied internally in the United 24/72 (International Fruit Co. [1972] 2 Kingdom in statutes incorporating the ECR 1219). test of "indecency or obscenity" could thus not be directly transposed to the frontier situation, since they presuppose matter which cannot exist at that point The United Kingdom notified approval — for example public display or sale. of the Lausanne Convention on 23 The obvious adaptation would be to February 1976, that is, after the events in make confiscation at the frontier this case. However, since the importation dependent on whether a breach of an in the present case did not involve the internal law was threatened. It would be postal services, the applicability of Article often difficult and sometimes impossible 234 as regards the Convention is purely to ascertain this with any reasonable hypothetical. degree of certainty; and a customs official would be faced with an inquiry more difficult than that required to deal with domestically produced material — where the question of, for example, 3. Observations ofthe Commission public display or sale would be one of historical fact as opposed to future speculation.

Excise Act, 1952, with the provisions of Second question law operative in the various constituent parts of the United Kingdom territory The Commission submits that the

reveals that the importer of pornographic position is as stated by Mr Advocate articles is subject to more onerous General Warner in his opinion in the restrictions than persons within the above-mentioned Case 30/77. The Commission concludes that Article 36 United Kingdom, in at least two respects. permits a Member State to prohibit the (i) Under the customs legislation mere importation of goods from another possession of articles offending Member State which the first Member against Standard A is made an State considers are of an indecent or offence, whereas the same is not the obscene character provided that the case within the United Kingdom. means adopted are justified for the (ii) With the exception of the Isle of attainment of the objective of safe- Man, the sale per se of articles guarding public morality, or an objective offending against Standard A is not of public policy, and that the prohibition prohibited, except under the Scottish does not constitute a means of arbitrary Burgh Police (Scotland) Act, 1892, discrimination or a disguised restriction on trade between Member States within section 380 (3), which lays down comparatively minor penalties for the meaning of that article. infringement; under the customs legislation, importation for the Third question purpose of sale of articles offending The Commission submits that in against Standard A is made an determining the proper basis for the offence which attracts heavy invocation of grounds of public policy or penalties. public morality for the purposes of Article 36, assistance may be gleaned However, the Commission would submit from Case 30/77. In this regard the that in the circumstances of the present Commission remarks that if one case the difference in penalties imposed transposes this reasoning the to by customs legislation and those imposed imperatives of Article 36, then recourse by the other provisions of the criminal by a national authority to the concept of law does not affect the free movement of public policy would be permissible in goods. In the view of the Commission, circumstances where a fundamental

require customs officers to make the same distinction between mere possession and possession for public action which Fourth question police officers are obliged to make for The Commission submits that a the purposes of the criminal law. It is appropriate to point out that the prohibition on the importation of goods, difference in treatment which applies to otherwise justified on the grounds of the goods in question on importation, as public morality or public policy, and contrasted with that which applies when imposed with that purpose, will they are found within the national nevertheless not fall within the exception territory, may stem, not from matters of specified in Article 36 of the Treaty if it administrative convenience, but from the constitutes a means of arbitrary discrim- nature of the policy which the United ination or a disguised restriction on Kingdom Government feels constrained trade, or if the same objectives could be to carry out. It is possible that in circum- achieved by measures which do not stances such as those which govern the restrict intra-Community trade so much. present case, the nature of the policy requirements of a Member State may demand a rigorous control at its border, in order to prevent indecent or obscene articles, which would endanger its policy, Fifth question entering its territory, whereas the threat to its policy posed by indecent or The Commission draws an analogy with obscene articles already within its the abovementioned Case 4/75, and territory may pose a danger of a lesser submits that a prohibition imposed on order. the importation of such goods which is different in scope from that imposed by The Commission therefore concludes

Seventh question Accession provides that Article 234 of the Treaty shall apply, for the new Member States, to agreements or Conventions concluded before accession.

Accordingly, if the provisions of the Convention were found to conflict with In the view of the Commission, the Community law, so far as the free restrictions on the free movement of movement of goods between Member goods, so far as intra-Community trade States is concerned, Community law is concerned, provided for in the would be applicable. Conventions above mentioned would

almost certainly fall within the exceptions to Articles 30 and 34 provided for by Article 36.

Treaty. So far as the United Kingdom is opinion at the hearing on 25 October concerned, Article 5 of the Act of 1979.

JUDGMENT OF 14. 12. 1979 — CASE 34/79

Decision

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.

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 publication is justified on the ground that it is in the interests of science, literature, art or learning or other objects of general concern.

9 The mere possession, for non-commercial purposes, of articles which offend against either Standard A or Standard is not a criminal offence in any part of the United Kingdom.

JUDGMENT OF 14. 12. 1979 — CASE 34/79

10 The relevant provisions concerning the importation of pornographic articles are section 42 of the Customs Consolidation Act, 1876, and section 304 of the Customs and Excise Act, 1952. They apply throughout the United Kingdom. Put shortly, they provide that indecent or obscene articles are liable for forfeiture and destruction upon arrival in the United Kingdom and that whoever attempts fraudulently to bring such articles into the United Kingdom shall be guilty of an offence. The seventh schedule to the Customs and Excise Act, 1952, provides a procedure for testing before a court the liability of goods to forfeiture.

"2. If the answer to Question 1 is in the affirmative, does the first sentence of Article 36 upon its true construction mean that a Member State may lawfully impose prohibitions on the importation of goods from another Member State which are of an indecent or obscene character as

understood by the laws of that Member State?

REGINA HENN AND DARBY

3. In particular:

(i) is the Member State entitled to maintain such prohibitions in order to prevent, to guard against or to reduce the likelihood of breaches of the domestic law of all constituent parts of the customs territory of the State?

(ii) is the Member State entitled to maintain such prohibitions having regard to the national standards and characteristics of that State as demonstrated by the domestic laws of the constituent parts of the customs territory of that State including the law imposing the prohibition, notwithstanding variations between the laws of the constituent parts?"

JUDGMENT OF M. 12. 1979 — CASE 34/79

other Member State of articles which are of an indecent or obscene character

as understood by its domestic laws and that 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.

Fourth, fifth and sixth questions

18 The fourth, fifth and sixth questions are framed in the following terms:

"4. If a prohibition on the importation of goods is justifiable on grounds of public morality or public policy, and imposed with that purpose, can that prohibition nevertheless amount to a means of arbitrary discrimination or a disguised restriction on trade contrary to Article 36?

20 According to the second sentence of Article 36 the restrictions on imports referred to in the first sentence may not "constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States".

21 In order to answer the questions which have been referred to the Court it is appropriate to have regard to the function of this provision, which is designed to prevent restrictions on trade based on the grounds mentioned in the first sentence of Article 36 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. That is not the purport of a prohibition, such as that in force in the United Kingdom, on the importation of articles which are of an indecent or obscene character. Whatever may be the differences between the laws on this subject in force in the different constituent parts of the United Kingdom, and notwithstanding the fact that they contain certain exceptions of limited scope, these laws, taken as a whole, have as their purpose the prohibition, or at least, the restraining, of the manufacture and marketing of publications or articles of an indecent or obscene character. In these circumstances it is

permissible to conclude, on a comprehensive view, that there is no lawful trade in such goods in the United Kingdom. A prohibition on imports which may in certain respects be more strict than some of the laws applied within the United Kingdom cannot therefore be regarded as amounting to a measure designed to give indirect protection to some national product or aimed at creating arbitrary discrimination between goods of this type depending on whether they are produced within the national territory or another Member State.

25 Article 234 provides that the rights and obligations arising from agreements concluded before the entry into force of the Treaty between one or more Member States on the one hand, and one or more third countries on the other, are not to be affected by the provisions of the Treaty. However, to the extent to which such agreements are not compatible with the Treaty, the Member State concerned is to take all appropriate steps to eliminate the incompatibilities established.

26 It appears from a comparison of the foregoing considerations with the provisions of the Conventions to which the House of Lords refers that the observance by the United Kingdom of those international Conventions is not likely to result in a conflict with the provisions relating to the free movement of goods if account is taken of the exception made by Article 36 in regard to any prohibitions on imports based on grounds of public morality.

27 The answer to the seventh question should therefore be that, 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 Treaty, the provisions of Article 234 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).

REGINA HENN AND DARBY

Costs

28 The costs incurred by the Government of the United Kingdom and by the Commission, which have submitted observations to the Court, are not recoverable.

3. 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.

OPINION OF MR WARNER — CASE 34/79

4. 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 Treaty, the provisions of Article 234 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).

Kutscher O'Keeffe Touffait

Mertens de Wilmars Pescatore Mackenzie Stuart Bosco

Delivered in open court in Luxembourg on 14 December 1979.