R v Henn and Darby
A Member State can ban imports of indecent or obscene material on grounds of public morality, as long as there is no lawful trade in such goods within the state.
Facts
Mr Henn and Mr Darby were convicted in England of importing pornographic films and magazines from the Netherlands, contrary to customs legislation prohibiting the importation of indecent or obscene articles. They argued that the ban was contrary to the Treaty rules on free movement of goods, because UK law on obscenity did not prohibit all such material within the country, so imported goods were treated differently. The House of Lords referred questions to the Court of Justice.
Legal principle
The Court of Justice held that the ban was a quantitative restriction, but that it was justified on grounds of public morality under what is now article 36 of the Treaty on the Functioning of the European Union. In principle, it is for each Member State to determine in accordance with its own scale of values the requirements of public morality in its territory. Although the laws within the United Kingdom differed, taken as a whole they had the purpose of prohibiting the manufacture and marketing of such material, so there was no lawful trade in such goods in the United Kingdom, and the ban was not arbitrary discrimination.
Related cases on free movement of goods
- Commission v Denmark (Danish bottles) Case 302/86, [1988] ECR 4607
- Commission v France (Spanish strawberries) Case C-265/95, [1997] ECR I-6959
- Commission v Germany (Beer purity) Case 178/84, [1987] ECR 1227
- Commission v Ireland (Buy Irish) Case 249/81, [1982] ECR 4005
- Commission v Italy (Art treasures) Case 7/68, [1968] ECR 423
- Commission v Italy (Motorcycle trailers) Case C-110/05, [2009] ECR I-519
- Conegate Ltd v HM Customs & Excise Case 121/85, [1986] ECR 1007
- Deutscher Apothekerverband eV v 0800 DocMorris NV Case C-322/01, [2003] ECR I-14887
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