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INTERNET LAW – Free Movement of Goods within the EU vs. Member States’ Law Restrictions on Mail Orders

admin — Mon, 12 Apr 2010 11:12:59 +0000

The EU Directive on Electronic Commerce, articles 28 and 30, in general terms, purport for a free movement of goods and services among the EU Member States and prohibit quantitative or qualitative restrictions on imports from other Member States. Member States may not legislate to impose barriers or quantitative restrictions on goods or services from other EU countries.

The German law for the protection of young persons (Jugendschutzgesetz) prohibits the sell of unlabelled image storage media (DVDs, videos, cassettes, etc), through mail orders- which include Internet sales,- to children and adolescents. Those sales are allowed if the image storage media has been leveled by the proper authorities as information or educational programs. Image storage media that have not been labeled according to the children’s age, and by the proper government or private regulatory agency, cannot be accessible, transferred, or made available to a child or adolescent through mail orders or over the Internet.

A German company imported image storage media (DVDs and videos) from the United Kingdom (UK) and sold them on the Internet, through mail others and other means. These goods were properly labeled by the UK authorities but they were not labeled by the German’s authorities. A German competitor merchant accused this company of violating the German law for the protection of young persons by selling these imported goods over the Internet. The accused Internet merchant claimed that the goods were properly labeled in UK and that his actions were protected under the EU Directive on E-commerce.
The initial question was whether the principle on free movement of goods within the meaning of article 28 EC precludes the German law prohibiting the sale by mail order of unlabeled image storage media to children and adolescents. Then, the European Court of Justice (ECJ) considered whether, under article 30 EC, the fact that the image storage media had been examined by another Member State and properly labeled still violated the German law.

The ECJ held that the German’s prohibition of selling unlabeled storage media by mail order to children and adolescents does not impose quantitative restrictions on imports within the meaning of article 28 EC. The reason for this decision is based on the fact that the law for the protection of young persons applies indiscriminately to domestic sales and imports. Thus, there is not restriction as long as the law affects both products originating in the state and products originating in other Member States. Further, even if the German court had determined that its law establishes a quantitative restriction on imports within the meaning for Article 28 EC, that prohibition is justified by article 30 EC on the grounds of public morality, public policy, and protection of health of humans; even if the image storage media has been examined and labeled by the authorities of other Member State.

Tags: law theory

Positivist Legal Theory

admin — Tue, 27 Oct 2009 14:27:01 +0000

The question of the character of law is primarily a simple one, although it presents a diversity of argumentation to make it an academic favourite and a thought-provoking topic of debate. Positivism is the term describing the school of legal thought that follows that law is an authoritative, binding, regulatory construct. It holds at its core the idea that law is enacted as an authoritative statement of how society must behave. It rejects the concept of any connection with morality, and suggests that there is no room for subjective consideration of the law – the law is, with no room for negotiation. Positivism has been criticised, particularly in Germany, as a means of affording tyranny and extremism to enter mainstream politics. It is said that the general concept of accepting and enforcing the law by virtue of its status allows unjust laws enforcing prejudice and discrimination respect by virtue of their enactment, placing an indefeasible trust in the legislature. As compared to other legal theories, positivism has gathered a great deal of respect and support across the world, making it one of the most prominent considerations of the nature of law.

Positivism places strength on the rules as they are laid down, on the premise that the process of the legislature is the time for challenge and interpretation. Although this may generally be the case, it does throw up some problems in relation to the practical consequences of certain enactments, which reflect better with experience the level of effectiveness. Another feature of the positivist movement is that rather than be guided by moral considerations, the law can be used in certain circumstances to determine what is right and what is wrong, on the basis of its status as in accordance with or against the law. Again this causes problems that have formed the basis of much academic argumentation in the area.

One of the main criticisms of positivism as a theory came in light of the linguistic considerations of HLA Hart, a leading international legal philosopher. He stated that the positive law is far from fixed in nature, for the simple reason that language is not fixed. For example, the famous scenario offered for this point is a sign in a local park stating ‘no vehicles allowed’. This is by no means a fixed and definitive statement of the law, because ‘vehicles’ can be taken to mean a broad range of things. For the most part it will be fairly obvious what falls within the scope – no cars, vans, trucks or trains would be permitted. But what about skateboards? Bicycles? Are these covered within the definition of vehicles? There is no way of knowing from the text exactly what is intended by the law, so to positivism in this strict sense is flawed. Rather, a more sophisticated approach is required, which allows the law to be read in the light of pragmatic and policy considerations. This makes positivism more palatable as a concept, and strengthens its validity at the heart of legal philosophy.

Positivism is only one in a series of mainstream legal theories which satisfy the rational and logical requirements of academics and practitioners alike. Its intellectual sophistication sets it apart from the more basic natural law theory, although it is by no means an utterly definitive set of beliefs. All in all, this is an area of study that is rapidly developing, producing new and more complex arguments with every empirical text.

Natural Law Theory

admin — Tue, 27 Oct 2009 14:25:09 +0000

In attempting to garner an understanding of the nature of law, early legal philosophers and academics formulated what has come to be known as the natural law theory, and has become a literal cornerstone of the development of modern legal thinking. Although somewhat limited in modern jurisprudential thinking, natural law has had a tremendous impact on our understanding of what law means in society as a baseline from which to build more complex theories. In this article, we will look at some of the major propositions underpinning the concept of natural law, and the corresponding strengths and weaknesses of this fundamental interpretation of the legal function.

Natural law starts with the basic premise that the law is driven by morality, and consequently is affected by it. With a history extending back to Aristotle and other early philosophers, the natural law theory has traditionally linked the law with religion and an innate sense of justice, rather than the more pragmatic approaches of some other theories. Although this might sound rather basic, the principals have been developed and refined through academic debate for centuries ultimately leading to a far more sophisticated theory of the nature of law. The idea that all law is subject to an unwritten code of morality is fundamental to natural law. This also throws up some potential problems in terms of civil regulation. Certain natural law theorists suggest that for a law to be binding on the citizen, it must conform to this sense of natural justice. However, there is clearly no definitive objective concept of morality, which casts doubt over this principle. Additionally, the prospect that a law may be disregarded in favour of some higher sense of morality doesn’t conform in reality, considering the potential implications of consistently disregarding law on the grounds of the subjective concept of justice.

Furthermore on this primitive understanding of natural law, the citizen in contravention to the laws of his state, could attempt to excuse his actions through a justification of ‘immoral’ laws. This would also create a state of disorder, given the natural variation of personal opinions, which would ultimately render society unworkable. For this reason, the natural law scheme has failed to garner modern academic acceptance, of course with a few exceptions.

Natural law has been proposed as a consideration in trying war criminals, on the basis of the retrospectivity principle, i.e. no man can be tried for a crime that was not a crime when he committed it. Many war criminals are merely cogs in the machine of a legal regime, which ultimately permits their actions, however unjustifiable morally. Natural law theories give a basis for challenge on these grounds, whilst avoiding the awkward question of direct legal contravention, which ultimately works to serve justice. In this sense, it is perhaps useful as a canon of interpretation and in determining just and equitable outcomes in ‘difficult’ cases. However, as a wider legal concept, natural law and the proposed intersection between law and morality seems too awkward to reconcile with considered academic legal understandings. Having said that, natural law has provided an excellent starting position for further advanced argumentation, and has provided a platform for critique that has been essential to the development of the more sophisticated ideas held in regard in this modern day.

Tags: justice, law, law theory, natural law, natural law theory

Law and Lawyers Inside » law theory

INTERNET LAW – Free Movement of Goods within the EU vs. Member States’ Law Restrictions on Mail Orders

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