Flashcards in 2 - Free Movement of Good 1: Articles 28-30 and 110 TFEU Deck (54):
What does Article 26(2) TFEU say?
- internal market shall comprise an area
- without internal frontiers
- in which the free movement of goods, persons, services and capital is ensured
- in accordance with the provisions of the Treaties
What are the 4 freedoms in Article 26(2) TFEU?
- free movement of 1) goods 2) persons 3) services 4) capital
- they are the essential characteristics of the internal market
which case defined the "goods" referred to in Article 26(2) TFEU?
Commission v Italy (Italian Art)
- "products which can be valued in money + which are capable of forming commercial transactions"
what was the main object of the treaties in this context?
- removal of obstacles
- to the free circulation of goods between Member sTATES
What are the 2 principles abided in by customs unions?
1. free trade areas where goods pass between countries without restrictions
2. system for charging of a "common customs tarriff" on goods coming in to the free trade area
Which article TFEU states that TFEU provides for the creation of a customs union that comprises 2 principles?
Article 28(1) TFEU
what does Article 30 TFEU prohibit?
- Prohibits customs duties and charges having equivalent effect
What does Article 110 TFEU prohibit?
- Discriminatory taxation
What do Articles 34, 35, and 36 TFEU prohibit?
- Quantitative restrictions and all measures having equivalent effect (a. 34/35)
- and permissible derogations from this prohibition (a36)
which of the TFEU articles relate to barriers to trade between member states that are of a pecuniary nature?
- article 30 and 110
- 30 = prohibits charges that are levied simply because goods have crossed the frontier of the Member State
- 110 = regulates charges that are livid as a system of internal taxation within the Member State
what are the prohibits in article 30 and 110 TFEU designed to do?
- to remove hidden obstacles to trade between Member states of a non-pecuniary nature
what does article 30 TFEU actually say?
- customs duties on imports and exports
- and charges having equivalent effect shall be prohibited between Member States.
- This prohibition shall also apply to customs duties of a fiscal nature’
what was the first case to establish that Treaty articles are capable of direct effect? what did it say?
- Van Gend En Loos
- concerned article 12 EEC which prohibited increases in customs duties by MS
- VGEL was entitled to invoke Article 12 in a national court to argue that a customs duty imposed on this product was not permissible.
what is the "thrust" of article 30 TFEU and what does this mean?
- to prohibit customs duties between MS
- this is a TARIFF, however small that specifies rate of duty to be paid by the importer to the Stae
- solely for the reason that the goods are being exported to that state.
why does article 30 TFEU extend to charges that have equivalent effect?
- because prohibition against customs duties would still be illusory if it were possible for countries to impose charges
- on imported goods that are not strictly 'classifiable' as customs duties but which achieve the same effect.
where is the most comprehensive definition of CEE's found?
- Commission v Italy
levy imposed by italy on all imports / exports
- for the purpose of collecting accurate statistical material relating to trade patterns
what is the definition of CEE in Commission v Italy "statistical levy"
- "any pecuniary charge,
- which is imposed unilaterally on domestic or foreign goods
- by reason of the fact that they cross a frontier
- and which is not a customs duty in the strict sense
what are the issues that are irrelevant for identifying a CEE?
- size of charge, designation, mode of application, that charge is not imposed for the benefit of the state,
- that charge is not discriminatory, not protective in effect, that product is not in competition
why did court of justice in "Statistical Levy" seek to justify strict approach of identifying CEEs?
- because any pecuniary charge imposed on goods by reason of the fact that they cross the frontier
- constitutes an obstacle to the free movement
which case illustrates the strictness of the fact that the prohibition on CEEs do not permit any exceptions?
Sociaal Fonds voor de Diamantarbeiders v Chougol Diamond Co
- at same time as statistical levy
- court of justice held that charge on diamonds imported into Belgium was CEE even though clearly NOT protectionist in nature.
can a charge designated as a customs duty or CEE be lawful?
A charge designated as a customs duty or a CEE is unlawful regardless of the purpose of the charge. There are no defences that may be invoked by the Member State seeking to levy the charge.
will all charges on imports be classified as customs duties or CEEs?
- not all charges on imports will be classified as customs duties or CEEs for the purpose of Article 30. In Commission v Germany (Case 18/87)  ECR 5427, the Court of Justice observed that a charge will not fall within Article 30 in certain situations
what are the 3 scenarios in Commission v Germany that state a charge will not fall within Article 30 in certain situations?
1. relates to general system of internal dues
2. constitutes payment for a service rendered to the economic operator of a sum in proportion to the service
3. attaches to inspections carried out to fulfil obligations imposed by Community law
why does the charge in Commission v Germany not fall within Article 30?
- because it is an internal tax
- so will be governed by Article 110 instead
- cannot be governed by both articles because of the result of Lattice case
- CEEs + internal taxation are governed by 2 systems, mutually exclusive
what did the court of justice accept in the statistical levy case?
- that its approach to customs duties and CEEs did not preclude a charge forming consideration (payment)
- for a specific service actually rendered to the importer and in proportion to that service from being lawful.
which case echoed the need for the importer to specifically benefit>
- Bresciani v Amministrazione Italiana
what are the details of the case of Bresciani v Amministrazione Italiana
- levy which was charged to cover cost of compulsory vet inspections on animal products (raw cow hide) entering Italy.
- Court of Justice held that the inspections had been imposed in the general interest of public health
- so not regarded as service to the importer.
- Consequently, the levy was a CEE.
- Cost of the inspections should be met by the general public (they benefit)
What happened in the case of Commission v Belgium "customs warehouse"?
- service must be provided at the request of the importer.
- This case involved charges on goods deposited in customs warehouses situated in the interior of Belgium.
- held that a charge for the temporary storage of goods in the warehouses at the request of the importer was not a CEE as this was a charge for a service.
What did the Bresciani case establish? What is the leading case of what was held?
- a charge to cover the cost of an inspection that was imposed unilaterally by a Member State in its own national interest = CEE.
- charge imposed by a Member State to cover the costs of an inspection is not a CEE where the inspection was required by EU law in order to promote the free movement of goods.
- Leading case is Commission v Germany "animal inspections"
what are the 4 requirements in Commission v Germany of charges not to constitute a CEE?
1. charge mustnt exceed actual costs of inspections
2. inspections = obligatory + uniform for all relevant products
3. inspections prescribed by EU law in general interest of union
4. inspections must promote the free movement of goods by neutralising objects that could have arisen from unilateral inspection measures.
what are the 2 main points of Article 110 TFEU re discriminatory internal taxation?
- no member state shall: 1) impose internal taxation in excess of that imposed on similar domestic products
2) impose on the products of other MS internal taxation of a nature to give indirect protection to other products
WHY does article 30 prohibit customs duties and CEEs? is it sufficient?
- to ensure that goods that cross frontiers in the Union do not suffer from a competitive disadvantage compared to domestic goods
- would be insufficient by itself because a Member State could impose internal fiscal barriers to trade like internal tax rates
Which case was article 110 regosnied by the court of justice of having direct effect?
Alfons LUTTICKE GmbH v Hauptzollamt
how did the CoJ define a tax that is regulated by Article 110 in Commission v France ("reprographic machinery")?
- relates to a general system of internal dues applied systematically to categories of products
- in accordance with objective criteria irrespective of the origin of the products
Why is it important to distinguish between a charge that is prohibited under Article 30 and a tax that is subject to Article 110?
- because the court of justice has held that the provisions were mutually exclusiveness
- also because a.30 and a.110 have different effects
will a charge that falls within Article 30 ever be lawful? why?
- strict approach taken by CoJ to customs duties and CEEs
- mean that a charge which falls within Article 30 will simply be unlawful
- regardless of whether it is discriminatory or protectionist
what are the main differences between "Statistical Levy" and "Reprographic Machinery"?
1. CEE will be charged by reason of goods crossing the frontier - in contrast a tax governed by Article 110 is an internal due
2. CEE is imposed unilaterally either by article 110, applies irrespective of origin of the products
what happened in the case of Danish Ministry of Agriculture?
Court of Justice held that Article 30 TFEU covered ‘any charge levied on the occasion or by reason of importation specifically affecting an imported product to the exclusion of a similar domestic product’.
- contrasted with Bresciani
Bresciani v Amministrazione Italiana delle Finanze?
- Levy which was charged to cover the cost of compulsory veterinary inspections on animal products entering Italy.
- The animal products in this case had been raw cow hides.
- The Court of Justice held that the inspections had been imposed in the general interest of public health and so they could not be regarded as a service to the importer. Consequently, the levy was a CEE.
Commission v Belgium "customs warehouse`"?
- service must be provided at the request of the importer
- charges on goods deposited in customs warehouses in belgium
- charge for temporary storage of goods in warehouses at the request of importer = not a CEE, as this was a charge for a service.
What did Bresciani establish?
- charge to cover cost of an inspection where that inspection was imposed unilaterally by a MS
- in its own national interest
- is a CEE
- charge imposed by a Member State to cover the costs of an inspection is not a CEE where the inspection was required by EU law in order to promote the free movement of goods
Commission v Netherlands - what happened?
- inspections required by international treaties
- court of justice held that a charge for an inspection was not a CEE
- where the obligation to inspect had been imposed on all MS by an international treaty which was designed to encourage the free movement of goods.
what does Article 30 TFEU prohibit?
- prohibits customs duties and CEEs
- to ensure that goods cross frontiers in the Union do not suffer from competitive disadvantage compared.
what are the 4 requirements for a CEE?
1. mustn't exceed actual costs of inspections
2. obligatory and uniform charges
3. must be prescribed by EU law in general interest of EU?
4. inspection must promote free movement of foods - neutralising obstacles.
what did Commission v Netherlands find?
- charge imposed by a Member State to cover the costs of an inspection is not a CEE
- where the inspection was required by EU law in order to promote the free movement of goods
which article has less of an impact than article 30 on MS autonomy?
internal tax which is governed by Article 110 will be permissible, as long as it does not discriminate against imports under Article 110(1) and is not protectionist under Article 110(2). Therefore, Article 110 has much less of an impact than Article 30 on the autonomy of the Member States to determine their own taxation policies.
which 2 cases can CEE be compared to?
1. statistical levy
2. reprographic machinery
what is a tax governed by Article 110?
- a tax which is governed by article 110 applies irrespective of original of he products
- may apply to imported gods in a way that is different from domestic products.
what happened in Dansk Denkavit ApS v Danish Ministry of Agric?
Article 30 TFEU (as it is now) covered ‘any charge levied on the occasion or by reason of importation specifically affecting an imported product to the exclusion of a similar domestic product’.
- court concluded that a charge livid to fund the cost of checking samples of imported foodstuffs containing additives was not a CEE
What can Dansk Denkavit ApS v Danish Ministry of Agric be contrasted with?
court held in this case that the charge was a CEE
irrelevant that the domestic products suffered a similar burden through other charges as these other charges were not applied according
what happened in Reprographic Machinery?
charge which is applied systematically to categories of products irrespective of the origin of the products will be governed by Article 110 TFEU even where domestic production of the goods is, in practice, negligible or non-existent.
The case concerned a levy on reprographic machinery such as offset printing machines, microfiche scanners and photocopiers. Only 1% of the reprographic equipment put into the French market was produced in France. The remaining 99% was imported. The
Article 110(1) TFEU?
prohibits discriminatory taxation in regard to the imported goods and similar domestic goods.
Article 110(2) TFEU?
prohibits Member States from using taxation to protect domestic goods that, though not similar to the imported goods, are in competition with them. Each provision is discussed in turn