All European countries engage in fairly strict censorship and classification of films, videos and DVDs, basically because freedom of expression is a largely unprotected right. German law requires that all videos and DVDs that may be sold to children and young people must be authorized and appropriately labelled by an officially recognized public authority or voluntary organization.
The judgment in Case C-244/06 Dynamic Medien Vertriebs GmbH v. Avides Media AG concerned the sale in German of Japanese "Anime" DVDs by a German company, Avides Media, over the internet. The DVDs offered for sale by Avides Media came from the United Kingdom (where the choice is greater) and had been vetted by the British censors but not by the German authorities. Dynamic Medien, a competitor of Avides Media, brought proceedings in the German courts to prevent Avides Media from offering for sale DVDs that had not been vetted and marked by the German authorities.
The German court asked the Court of Justice whether the principle of free movement of goods laid down in Article 28 EC precludes the German law prohibiting the sale by mail order of DVDs and videos that are not labelled as having been vetted by the German authorities as to their suitability for young people. The German court also asked whether the German prohibition could be justified under Article 30 EC.
The Court of Justice held, in the first place, that the German rules constitute a measure having equivalent effect to quantitative restrictions within the meaning of Article 28 EC, which in principle is incompatible with the obligations arising from that article unless it can be objectively justified.
The Court recalled that 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 and are, on that basis, prohibited by Article 28 EC (see, inter alia, Case 8/74 Dassonville, paragraph 5, Case C-420/01 Commission v. Italy, paragraph 25, and Case C-143/06 Ludwigs-Apotheke, paragraph 26).
The German measures in question were not deigned to regulate trade between Germany and other member States. But the Court also recalled the important issue is the effect of those measures may have on intra-EC trade. By virtue of that factor, absent any harmonization of national legislation, obstacles to the free movement of goods which are the consequence of applying, to goods coming from other member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods constitute measures of equivalent effect (such as those relating to designation, form, size, weight, composition, presentation, labelling or packaging), even if those rules apply to all products alike, unless their application can be justified by a public-interest objective taking precedence over the requirements of the free movement of goods (see, Case 120/78 Rewe-Zentral ('Cassis de Dijon'), paragraphs 6, 14 and 15; Case C-368/95 Familiapress, paragraph 8; and Case C-322/01 Deutscher Apothekerverband, paragraph 67). The Court has also treated as measures having equivalent effect, prohibited by Article 28 EC, national provisions making a product lawfully manufactured and marketed in another member State subject to additional controls, save in the case of exceptions provided for or allowed by Community law (see, Case C-390/99 Canal Satélite Digital, paragraphs 36 and 37, and Case C-14/02 ATRAL, paragraph 65).
It was debated before the Court whether the German rules on censorship were selling arrangements within the meaning laid down by the Court in its judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard, paragraph 16. The Court concluded in this case that the German rules on censorship do not constitute a selling arrangement within the meaning of Keck and Mithouard and the subsequent cases. It recalled that in paragraph 15 of its judgment in Case C-391/92 Commission v Greece that rules restricting the marketing of products to certain points of sale, and having the effect of limiting the commercial freedom of economic operators, without affecting the actual characteristics of the products referred to, constitute a selling arrangement. Therefore, the need to adapt the products in question to the rules in force in the member State in which they are marketed prevents the German requirements from being treated as selling arrangements (see Canal Satélite Digital, paragraph 30). That is the case, inter alia, with regard to the need to alter the labelling of imported products (see, Case C-33/97 Colim, paragraph 37, and Case C-416/00 Morellato, paragraphs 29 and 30).
The Court then considered whether the German measures could be justified as being necessary to protect young people, being an objective linked to public morality and public policy recognized as grounds for justification in Article 30 EC.
The Court held that the German measures were so justified.
It recalled that the protection of the rights of the child is recognized by various international instruments which the Member States have cooperated on or acceded to, such as the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations and entered into force on March 23rd 1976, and the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on November 20th 1989 and entered into force on 2nd September 1990. The Court has already pointed out that those international instruments are among those concerning the protection of human rights of which it takes account in applying the general principles of Community law (see, inter alia, Case C-540/03 Parliament v Council, paragraph 37). Under Article 17 of the Convention on the Rights of the Child, the States Parties recognize the important function performed by the mass media and are required to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. Article 17(e) provides that those States are to encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.
The Court pointed out that the protection of the child is also enshrined in the Charter of fundamental rights of the European Union, Article 24(1) of which provides that children have the right to such protection and care as is necessary for their well-being (see, Parliament v Council, paragraph 58).
Nevertheless, the Court recalled that the German system of the examination of the DVDs and videos must be proportionate in the sense that it must be readily accessible, can be completed within a reasonable period, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see, Case C-344/90 Commission v France, paragraph 9, and Case C-95/01 Greenham and Abel, paragraph 35). It concluded that while it seemed prima facie that the German system was proportionate, the national court must examine whether it is in fact proportionate.