Flashcards in BPP Study Manual Ch7 - Free Movement of Goods 1 Deck (39):
What treaty article sets out the EU principle of free movement of goods?
What are the four freedoms?
free movement of goods, services, persons and capital
How is 'goods' defined? In what case?
- 'Italian Art Case'
- products that 'can be valued in money and which are capable, as such, of forming the subject of commercial transactions'
What is a customs union?
1) free trade area: no imposition of restrictions between countries
2) common customs tariff: imposed on goods entering the area from outside
Which treaty provision allows generally for the creation of a EU customs union?
s8 (1) TFEU
What EU provisions concern barriers to trade between MS?
1) 30 TFEU - prohibition of customs duties and charges having equivalent effect
2) 110 TFEU - prohibition of discriminatory taxation
What EU provisions attempt to remove 'hidden' barriers to trade between MS?
34, 35 and 36 TFEU - prohibition of quantative restrictions and all measures having equivalent effect, and derogations from this provision
What case proved Article 30 TFEU had direct effect? What is Article 30 about?
- Van Gend En Loos
- 30 TFEU prohibits customs barriers between MS
Define a customs duty.
a charge of any size levying a duty to be paid by the importer to the state solely because the goods are being imported into that state
How important is the purpose of a customs charge?
- in the Italian Art case, an Italian tax on exports to prevent the loss of artistic heritage was illegal
What is a CEE?
a Charge with the Equivalent Effect of a customs duty
In what case did the CJ define CEEs?
the Statistical Levy case against Italy
- pecuniary charge, however small,
- regardless of designation and mode of application,
- imposed unilaterally on goods because they cross a border
- even if the charge is non-protectionist
What does pecuniary mean?
of or relating to money
Give a case where a non-protectionist CEE was struck down.
Sociaal Fonds voor de Diamantarbeiders
What defences can a MS mount if they wish to levy a customs charge?
none - article 30 is an absolute prohibition
When might a charge on imports not constitute a customs duty or a CEE? From what case?
- Commission v Germany
1) if the charge relates to a general system of internal dues applied equally to domestic and imported goods
2) if the charge is payment for a service rendered that is of benefit to the exporter or importer
3) if the charge is for inspections carried out to fulful obligations under EU law
Why are internal dues exempt from article 30?
- they are an internal tax rather than a customs barrier
- Dansk Denkavit ApS
What did the CJ rule in the Statistical Levy case in relation to charges for services rendered?
- any benefit to traders from the charge was too general and hard to assess so it could not be seen as benefitting importers and exporters
- it was therefore seen as a CEE
What did the CJ decide in Bresciani in relation to services rendered?
- health inspections on raw cowhides were for the benefit of public health not for the benefit of the importer
- charge was therefore a CEE
What test developed from the Customs Warehouses case in relation to CEE?
a charge is not a CEE when:
1) it is consideration for services rendered
2) it is of benefit to the importer, and
3) the amount charged is commensurate with the cost of the service provided
What are the requirements from Commission v Germany for an inspection charge to not be a CEE if the inspection is imposed by EU law?
1) charge must not exceed actual cost of inspection
2) inspection must be obligatory and uniform for all relevant products in the Union
3) inspections must be prescribed by EU law in the general interest of the Union
4) inspections must promote the free movement of goods, eg by neutralising obstacles that could have arisen from unilateral inspection methods
What are rules for inspections imposed by international law? From what case?
- Commission v Netherlands
- same as for inspections imposed by EU law
Why is article 110 TFEU necessary?
- prevents internal fiscal barriers
- therefore stops MS from replacing import taxes with internal taxes on imported products
What gives article 110 TFEU direct effect?
Define taxes that are regulated by 110 TFEU.
general system of internal dues applied systematically an in accordance with the same criteria to domestic products and imported products alike
Does 110 TFEU prevent internal taxation policies?
1) it does not discriminate against imported products
2) it is not protectionist
How do you distinguish between a CEE and an Article 110 tax?
a CEE is born solely by imports but a tax is borne by both imports and domestic products
What was the CJ's conclusion in the Commission v France (Repographic Machinery) case?
- 99% of the products came from outside France
- but a tax that fell on the products was applied equally and was part of a general system of internal dues
- therefore a genuine tax
What is the test for 'similarity' of goods for article 110(1) TFEU?
- whether, at the same stage of production or marketing, the products had similar CHARACTERISTICS - and - MET THE SAME NEEDS from the point of view of consumers
How are 'characteristics' and 'needs' decided in the Rewe-Zentrale test for similarity?
- characteristics are decided from an objective viewpoint
- needs are determined from the viewpoint of consumers
Describe direct discrimination against similar goods under 110(1) TFEU. What case shows this?
- Commission v Italy (Regenerated Oil)
- tax system that overtly treats the imported goods less favourably than the similar domestic ones
What is indirect discrimination against similar imported goods? From what case?
- Nadasdi and Nemeth
- where a tax system has the effect of discriminating against imported goods in practice
Give an example case where a country was found to be indirectly discriminating against a similar imported product. What happened?
- differential tax imposing increasing tax based on engine size
- no French manufacturers of cars with engine sizes above the bottom tax rung
- tax therefore discriminated against foreign importers and was protectionist
- depends on the purpose of the tax though
Does 110 TFEU prevent tax systems where only imported products fall within the highest category?
- Commission v Greece
- not if the reason for the tax categories is non-discriminatory and non-protectionist eg social policy, industrial policies etc
What set out the test for products which are not similar under 110(2) TFEU? What is the test?
- the Spirits case
- goods that are not similar but are nonetheless in competition, even partial, indirect or potential, with certain products from the importing country
- eg French tax on cereal-based spirits held to be unfair because they were in competition with (but dissimilar to) fruit-based spirits.
If a member state does not produce a similar product to the one being imported, can Article 110 be applied? What case governs this?
- Yes: Cooperativa Co-Frutta
- Italian tax on bananas when there was no equivalent tax on fruit grown in Italy
- CJ accepted bananas were not similar to other table fruits
- tax breached 110(2) because tax was part of a general system of dues and tax had a protective effect
What is the remedy if 110(1) TFEU has been breached?
MS must equalise the tax regime in respect of the similar product