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Commercial - From: 1970 To: 1979

This page lists 18 cases, and was prepared on 20 May 2019.


 
 Dickson v Pharmaceutical Society of Great Britain; HL 1970 - [1970] AC 403
 
Brauerei A. Bilger Sohne Gmbh v Heinrich Jehle and Marta Jehle. (Policy of The EEC) R-43/69; [1970] EUECJ R-43/69
18 Mar 1970
ECJ

Commercial
It is possible that an agreement between undertakings, although it does not relate either to imports or to exports between member states within the meaning of article 4(2)(1) of regulation no 17, may affect trade between member states within the meaning of article 85(1) of the eec treaty.
Exclusive supply agreements, the execution of which does not require the goods in question to cross national frontiers, do not relate either to imports or to exports between member states within the meaning of article 4(2)(1) of regulation no 17.
Article 88 of the EEC treaty refers to national rules on jurisdiction and procedure, with the result that the phrase "authorities in member states" which appears both in this provision and in article 9(3) of regulation no 17 includes national courts.
The acknowledged power of the authorities in member states to apply article 85(1) of the eec treaty implies the power to apply paragraph (2) of that article.
An agreement between undertakings which is exempt from notification and which has not been notified is fully effective for so long as it has not been found to be void.
[ Bailii ]
 
Decro-Wall International SA v Practitioners in Marketing Limited [1971] 1 WLR 361; [1971] 2 All ER 216
1971
CA
Buckley LJ
Contract, Commercial
Once the court has concluded that a "reasonable notice" requirement was to be implied into a contract, the question of what notice period was reasonable must be judged as at the time the notice was given.
Buckley LJ also set out the test for fundamental breach, saying: "the . . breach must be such as to deprive the injured party of a substantial part of the benefit to which he is entitled under the contract . . Will the consequences of the breach be such that it would be unfair to the injured party to hold him to the contract and leave him to his remedy in damages".
1 Citers


 
Registrar of Restrictive Trading Agreements v Schweppes Ltd (No. 2) (1971) LR7 RP 336
1971

Stamp J
Commercial

Restrictive Trade Practices Act 1976
1 Citers


 
Procureur du Roi v Benoit and Gustave Dassonville (Judgment) C-8/74
11 Jul 1974
ECJ

European, Commercial
Europa All trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as measures having an effect equivalent to quantitative restrictions. In the absence of a community system guaranteeing for consumers the authenticity of a product's designation or origin, member states may take measures to prevent unfair practices in this connexion, on condition that such measures are reasonable and do not constitute a means of arbitrary discrimination or a disguised restriction on trade between member states. Consequently, the requirement by a member state of a certificate of authenticity which is less easily obtainable by importers of an authentic product which has been put into free circulation in a regular manner in another member state than by importers of the same product coming directly from the country of origin constitutes a measure having an effect equivalent to a quantitative restriction as prohibited by the treaty. An exclusive dealing agreement falls within the prohibition of article 85 when it impedes, in law or in fact, the importation of the products in question from other member states into the protected territory by persons other than the exclusive importer. An exclusive dealing agreement may adversely affect trade between member states and can have the effect of hindering competition if the concessionaire is able to prevent parallel imports from other member states into the territory covered by the concession by means of the combined effects of the agreement and a national law requiring the exclusive use of a certain means of proof of authenticity. For the purpose of judging whether this is the case, account must be taken not only of the rights and obligations flowing from the provisions of the agreement, but also of the legal and economic context in which it is situated and, in particular, the possible existence of similar agreements concluded between the same producer and concessionaires established in other member states. Price differences found to exist between member states are an indication to be taken into account .

 
Cooperatieve Vereniging 'Suiker Unie' Ua And Others v Commission Of The European Communities. (Competition ) C-114/73; [1975] EUECJ C-114/73
16 Dec 1975
ECJ

European, Commercial
1. There is no reason at all why the commission should not make a single decision covering several infringements of articles 85 or 86 of the EEC treaty, even if some of the undertakings to which it is addressed are unconnected with some of these infringements, provided that the decision permits each addressee to obtain a clear picture of the complaints made against it.
2. Community institutions are under a duty to send an undertaking to which a decision is addressed a copy of that decision in the language of the member state to which this undertaking belongs.
If this requirement is fulfilled, the fact that the commission also sent an undertaking copies of the decision in other languages is not such as to call into question its validity.
3. For the purpose of determining the persons to whom a decision, which finds that there has been an infringement of articles 85 or 86 of the treaty, applies, only the operative part of this decision must be considered, provided that it is not open to more than one interpretation.
4. The concept of a 'concerted practice' refers to a form of coordination between undertakings, which, without having been taken to the stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition, practical cooperation between them which leads to conditions of competition which do not correspond to the normal conditions of the market, having regard to the nature of the products, the importance and number of the undertakings as well as the size and nature of the said market.
Such practical cooperation amounts to a concerted practice, particularly if it enables the persons concerned to consolidate established positions to the detriment of effective freedom of movement of the products in the common market and of the freedom of consumers to choose their suppliers.
These criteria of 'coordination' and 'cooperation' laid down by the case-law of the court, which in no way require the working out of an actual plan, must be understood in the light of the concept inherent in the provisions of the treaty relating to competition that each economic operator must determine independently the policy which he intends to adopt on the common market including the choice of the persons and undertakings to which he makes offers or sells.
Although it is correct to say that this requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it does however strictly preclude any direct or indirect contact between such operators, the object or effect whereof is either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or contemplate adopting on the market.
If an economic operator accepts the complaints made to him by another operator in connexion with the competition to which the products manufactured by the former operator expose the latter, the conduct of the operators concerned amounts to a concerted practice.
The fact that a vendor aligns his price on the highest price charged by a competitor is not necessarily evidence of a concerted practice but may be explained by an attempt to obtain the maximum profit.
5. When article 85(1) not only prohibits agreements, decisions or practices having regard to their object but also to their actual effects in the field of competition, it implies that these effects must be considered in the context in which they take place, that is to say in their surrounding economic and legal circumstances within which they may, together with other factors, have a comulative effect on competition.
In order to determine whether an agreement is caught by article 85(1) it cannot therefore be severed from this context; in particular, the existence of similar contracts may be taken into consideration to the extent to which these kinds of contracts are in general likely to restrict free trade.
6.(A) the fact that a trade representative contract, which imposes upon the representative a prohibition of competition, complies with the national law governing this contract or that this law even imposes a similar prohibition is not determinative when considering whether such a contract is not caught by article 85 or 86.
(B) nevertheless if an agent sells in the name and for the account of a producer or association of producers he may in principle be treated as an auxiliary organ forming an integral part of the latter's undertaking, who must carry out his principal's instructions and thus, like a commercial employee, forms an economic unit with this undertaking.
In these circumstances incompatibility with article 85 or article 86 is not simply due to the fact that the principal forbids such an auxiliary to trade without his consent in products which might compete with his own products.
(C) as purchases from a 'trade representative' are in fact direct purchases from his principal the fact that the latter forced wholesalers to apply to its representatives and not to itself can neither be an abuse nor evidence thereof.
(D) even if an agent is called a 'trade representative' under the terms of the agreement which he has entered into with his principal, he cannot be regarded as an auxiliary organ forming an integral part of his principal's undertaking : 1. If the said agreement confers upon the agent or allows him to perform duties which from an economic point of view are approximately the same as those carried out by an independent dealer, because they provide for the agent accepting the financial risks of the sales or the performance of contracts entered into with third parties, or 2. If the agent is a large business house which at the same time as it distributes products for the account of the principal undertakes as an independent dealer a very considerable amount of business on the market for the product in question.
Therefore a clause prohibiting competition entered into between such an agent and his principal may be an agreement between undertakings which is prohibited under article 85.
If such a clause is inserted at the insistence of an undertaking occupying a dominant position, it may in the circumstances referred to in 1 above be an abuse under article 86.
(E) clauses prohibiting competition imposed by an undertaking occupying a dominant position on trade representatives may constitute an abuse, if foreign competitors find that there are no independent operators who can market the product in question on a sufficiently large scale, and are in practice forced to apply to the said undertaking's trade representatives if they wish to sell this product in the latter's sales territory, or if the said undertaking enlarges the scope of the prohibition of competition to such an extent that it no longer corresponds to the nature of the legal and economic relationship in question.
7. For the purpose of determining whether a specific territory is large enough to amount to 'a substantial part of the common market' within the meaning of article 86 of the treaty the pattern and volume of the production and consumption of the said product as well as the habits and economic opportunities of vendors and purchasers must be considered.
Article 86 of the treaty refers in each case to the position occupied by the undertaking concerned on the common market as the time when the latter acted in a way which is alleged to amount to an abuse.
In order to determine in the case of a complaint made against an undertaking under this article whether a specific area is a substantial part of the common market it is therefore only necessary to compare the statistical data relating to this area with the corresponding data relating to the common market as it was when the facts giving rise to these proceedings existed; any subsequent enlargement of the common market cannot be taken into consideration.
8. If an economic operator adopts a system of loyalty rebates leading to the application of different net prices to two customers who bought the same amount from the said operator if one of them purchased from another producer as well, such a system amounts to 'applying dissimilar conditions to equivalent transactions with other trading parties' within the meaning of article 86(c).
9. If a producer adopts a system of loyalty rebates which gives producers having their places of business in other member states no chance or restricts their opportunities of competing with goods sold by the said producer, such a system amounts to 'limiting markets to the prejudice of consumers' within the meaning of article 86(b).
10. There is no reason why the commission and the court should not accept as evidence of an undertaking's conduct correspondence exchanged between third parties, provided that the content thereof is credible to the extent to which it refers to the said conduct.
11. For the purpose of fixing the amount of the fine under article 15(2) of regulation no 17 regard shall be had to the gravity and duration of the infringement, so that particular account has to be taken of the legislative background and economic context of the conduct to which exception is taken, the nature of the restrictions of competition as well as the number and size of the undertakings concerned.
12. If a producer, acting independently, may be justified in endeavouring to prevent the sugar, which he has sold at a relatively low price for denaturing, from being sold at too low a price on the market for human consumption, the objectives of article 39 of the treaty do not however in any way require that he pursues this aim by means of concerted practices.
Nevertheless, if he does so, the concerted practices cannot come within the scope of the second exception specified in the first sentence of article 2(1) of regulation no 26.
13. There is nothing in regulation no 1009/67 to justify the assertion that this price is also 'guaranteed' to producers for sugar which they supply to other producers other than the intervention agencies referred to in article 9 of the said regulation.
14. It follows from the wording of article 17(1) of regulation no 1009/67 that community institutions are not required to introduce a system of export refunds and still less to fix the amount thereof in such a way that if sugar producers export they obtain this intervention price.
[ Bailii ]

 
 Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The "Diana Prosperity"); HL 1976 - [1976] 1 WLR 989; [1976] 2 Lloyd's Rep 621; [1976] 3 All ER 570
 
Sa Fonderies Roubaix Wattrelos v Societe Nouvelle Des Fonderies A. Roux Et Societe Des Fonderies Jot R-63/75; [1976] EUECJ R-63/75
3 Feb 1976
ECJ

Commercial

[ Bailii ]
 
Societe Terrapin (Overseas) Ltd. v Societe Terranova Industrie Ca Kapferer and Co R-119/75; [1976] EUECJ R-119/75; [1976] 2 ECR 1039
22 Jun 1976
ECJ

European, Intellectual Property, Commercial
The court discussed the doctrine of exhaustion of rights: ". . . the proprietor of an industrial or commercial property right protected by the law of a member state cannot rely on that law to prevent the importation of a product which has lawfully been marketed in another member state by the proprietor himself or with his consent."
1 Citers

[ Bailii ]

 
 Trendtex Trading Corporation v Central Bank of Nigeria; CA 1977 - [1977] 1 QB 529; [1976] 3 All ER 437; [1976] 1 WLR 868

 
 Procureur de la Republique de Besancon v Les Sieurs Bouhelier and others; ECJ 3-Feb-1977 - R-53/76; [1977] EUECJ R-53/76; C-53/76
 
De Beste Boter and Others v Balm C-99/76
11 May 1977
ECJ

European, Commercial
Article 18 of regulation no 1259/72 as amended by regulation no 1237/73 must be interpreted as meaning that even where the successful tenderer does not himself carry out processing it is necessary to establish that the processed products comply with the conditions laid down in article 6(1)(c) of the regulation and that they have been produced within the period prescribed before the deposit may be released. The system regarding the processing deposit laid down by regulation no 1259/72 rests on a proper legal basis and was adopted in accordance with the opinion of the management committee concerned; as the forfeiture of the deposit is not in the nature of a penalty for non-fulfilment of an independent obligation, the system does not exceed what is appropriate and necessary to attain the objective desired.

 
Re Ravenseft Properties Ltd's Application [1978] 1 QB 52
1978

Mocatta P
Landlord and Tenant, Commercial
A restriction in terms of the 1976 Act was not accepted merely by the agreement with the landlord. The tenant, in taking the lease, did not restrict a pre-existing freedom to trade on the demised premises, but rather obtained a new, but limited, freedom to trade there.
Restrictive Trade Practices Act 1976
1 Citers


 
United Brands Company and United Brands Continentaal BV v Commission of the European Communities C-27/76; [1978] EUECJ C-27/76; [1978] ECR 207
14 Feb 1978
ECJ

European, Commercial
Europa The opportunities for competition under article 86 of the treaty must be considered having regard to the particular features of the product in question and with reference to a clearly defined geographic area in which it is marketed and where the conditions of competition are sufficiently homogeneous for the effect of the economic power of the undertaking concerned to be able to be evaluated. For the product to be regarded as forming a market which is sufficiently differentiated from other fruit markets it must be possible for it to be singled out by such special features distinguishing it from other fruits that it is only to a limited extent interchangeable with them and is only exposed to their competition in a way that is hardly perceptible. The dominant position referred to in article 86 relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers. In general a dominant position derives from a combination of several factors which, taken separately, are not necessarily determinative. A trader can only be in a dominant position on the market for a product if he has succeeded in winning a large part of this market. However an undertaking does not have to have eliminated all opportunity for competition in order to be in a dominant position. An undertaking's economic strength is not measured by its profitability ; a reduced profit margin or even losses for a time are not incompatible with a dominant position, just as large profits may be compatible with a situation where there is effective competition. The fact that an undertaking's profitability is for a time moderate or non-existent must be considered in the light of the whole of that undertaking's operations. The fact that an undertaking forbids its duly appointed distributors to resell the product in question in certain circumstances is an abuse of the dominant position since it limits markets to the prejudice of consumers and affects trade between member states, in particular by partitioning national markets.
Europa An undertaking in a dominant position for the purpose of marketing a product - which cashes in on the reputation of a brand name known to and valued by the consumers - cannot stop supplying a long- standing customer who abides by regular commercial practice, if the orders placed by that customer are in no way out of the ordinary. Such conduct is inconsistent with the objectives laid down in article 3 (f) of the treaty, which are set out in detail in article 86, especially in paragraphs (b) and (c), since the refusal to sell would limit markets to the prejudice of consumers and would amount to discrimination which might in the end eliminate a trading party from the relevant market. If the occupier of a dominant position, established in the common market, aims at eliminating a competitor who is also established in the common market, it is immaterial whether this behaviour relates to trade between member states once it has been shown that such elimination will have repercussions on the patterns of competition in the common market. The policy of differing prices enabling UBC to apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage is an abuse of a dominant position. Charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied may be an abuse of a dominant position within the meaning of subparagraph (a) of article 86 ; this excess could, inter alia, be determined objectively if it were possible for it to be calculated by making a comparison between the selling price of the product in question and its cost of production, which would disclose the amount of the profit margin.
Europa "… the charging a price which is excessive because it has no reasonable relation to the economic value of the product supplied would be an abuse.
This excess could, inter alia, be determined objectively if it were possible for it to be calculated by making a comparison between the selling price of the product in question and its cost of production, which would disclose the amount of the profit margin; …
The questions therefore to be determined are whether the difference between the costs actually incurred and the price actually charged is excessive, and, if the answer to this question is in the affirmative, whether a price has been imposed which is either unfair in itself or when compared to competing products."
1 Cites

1 Citers

[ Bailii ]
 
Regina v Thompson, Johnson and Woodiwiss (Judgment) C-7/78
23 Nov 1978
ECJ

European, Commercial
Europa In the system of the EEC treaty means of payment are not to be considered as goods falling within the terms of articles 30 to 37 of the treaty. These provisions do not therefore apply to (a) silver alloy coins which are legal tender in a member state, (b) gold coins such as krugerrands which are produced in a non- member country but which circulate freely within a member state. A ban on the export from a member state of silver alloy coins, which have been but are no longer legal tender in that state and the melting down or destruction whereof on national territory is forbidden, which has been adopted with a view to preventing such melting down or destruction in another member state, is justified on grounds of public policy within the meaning of article 36 of the treaty because it stems from the need to protect the right to mint coinage which is traditionally regarded as involving the fundamental interests of the state.

 
Hoffmann-La Roche v Commission C-85/76; [1979] EUECJ C-85/76; [1979] ECR 461
13 Feb 1979
ECJ

European, Commercial, Natural Justice
ECJ Observance of the right to be heard is required in all proceedings in which sanctions, in particular fines or penalty payments, may be imposed as a fundamental principle of community law. It must be respected even if the proceedings in question are administrative proceedings.
In the matter of competition and in the context of proceedings for a finding of infringements of articles 85 or 86 of the treaty, observance of the right to be heard requires that the undertakings concerned must have been afforded the opportunity to make known their views on the truth and relevance of the facts and circumstances alleged and on the documents used by the commission in support of its claim that there has been an infringement.
The obligation on the commission under article 20 (2) of regulation no 17 to observe professional secrecy must be reconciled with the right to be heard. By providing undertakings from whom information has been obtained with a guarantee that their interests, which are closely connected with observance of professional secrecy, are not jeopardized, that provision enables the commission to collect on the widest possible scale the requisite data for the fulfilment of its task of supervision without the undertakings being able to prevent it from doing so ; the commission may not however use, to the detriment of an undertaking in proceedings for a finding of an infringement of the rules on competition, facts or documents which it cannot in its view disclose if such a refusal of disclosure adversely affects that undertaking's opportunity to make known effectively its views on the truth or implications of those facts or documents or again on the conclusions drawn by the commission from them.
Europa
If a product could be used for different purposes and if these different uses are in accordance with economic needs, which are themselves also different, there are good grounds for accepting that this product may, according to the circumstances, belong to separate markets which may present specific features which differ from the standpoint both of the structure and of the conditions of competition. However this finding does not justify the conclusion that such a product together with all the other products which can replace it as far as concerns the various uses to which it may be put and with which it may compete, forms one single market. The concept of the relevant market in fact implies that there can be effective competition between the products which form part of it and this presupposes that there is a sufficient degree of interchangeability between all the products forming part of the same market in so far as a specific use of such products is concerned.
The dominant position referred to in article 86 of the treaty relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers. Such a position does not preclude some competition, which it does where there is a monopoly or a quasimonopoly, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it so long as such conduct does not operate to its detriment.
Very large market shares are highly significant evidence of the existence of a dominant position. Other relevant factors are the relationship between the market shares of the undertaking concerned and of its competitors, especially those of the next largest, the technological lead of the undertaking over its competitors, the existence of a highly developed sales network and the absence of potential competition.

Europa The concept of abuse is an objective concept relating to the behaviour of an undertaking in a dominant position which is such as to influence the structure of a market where, as a result of the very presence of the undertaking in question, the degree of competition is weakened and which, through recourse to methods different from those which condition normal competition in products or services on the basis of the transactions of commercial operators, has the effect of hindering the maintenance of the degree of competition still existing in the market or the growth of that competition.
An undertaking which is in a dominant position on a market and ties purchasers - even if it does so at their request - by an obligation or promise on their part to obtain all or most of their requirements exclusively from the said undertaking abuses its dominant position within the meaning of article 86 of the treaty, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the said undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say discounts conditional on the customer's obtaining all or most of its requirements from the undertaking in a dominant position.
Obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to deprive the purchaser of or restrict his possible choices of sources of supply and to deny other producers access to the market.

Europa The abuse of a dominant position and the restriction of competition as attributes of the contracts in question are not avoided by the so-called'' english'' clause contained in them whereby the purchasers undertake to notify the undertaking in a dominant position of any more favourable offer made to them by competitors and are free, if that undertaking does not adjust its prices to the said offer, to obtain their supplies from competitors. In these circumstances a clause of this kind is such as to enable the undertaking in a dominant position to realize an abuse of that dominant position.
The effect of fidelity rebates is to apply dissimilar conditions to equivalent transactions with other trading parties in that two purchasers pay a different price for the same quantity of the same product depending on whether they obtain their supplies exclusively from the undertaking in a dominant position or have several sources of supply.
1 Citers

[ Bailii ]
 
Gefluegelschlachterei Freystadt Gmbh and Co Kg v Hauptzollamt Hamburg-Jonas R-23/79; [1979] EUECJ R-23/79
27 Sep 1979
ECJ

Commercial
ECJ 1. Paragraph I of the protocol on German internal trade and connected problems, annexed to the EEC Treaty, is intended to relieve the federal republic of Germany of the obligation to apply the rules of community law to german internal trade. It accords a special status to the german democratic republic as territory which does not form part of the community but which is not a non-member country vis-a-vis the federal republic of Germany.
For a transaction to form part of german internal trade within the meaning of the protocol, it is necessary, and at the same time sufficient, that the goods are put into free circulation in the german democratic republic without having been in free circulation in a third country after having left the territory of the federal republic of Germany.
2. The concept of export within the context of the community provisions concerning export refunds for agricultural products subject to the common organization of the markets must be interpreted as meaning that it does not refer to trade forming part of german internal trade within the meaning of the protocol on german internal trade.
[ Bailii ]
 
Regina v Maurice Donald Henn and John Frederick Ernest Darby C-34/79
14 Dec 1979
ECJ

European, Crime, Commercial
Europa 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. 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. 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. 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. 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).
1 Cites

1 Citers


 
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