Free Movement of goods Flashcards
(13 cards)
fiscal barriers to trade
2 types
-custom duties (and charges having equivalent effect)- prohibited by article 30 TFEI
-and discriminatory taxation- prohibited by art 110 TFEU
customs duty prohibitation
-custom duty- a tax levied on imports and exports (commission v italy 1968)
- charges with equivalent effect- any pecuniary charge which is imposed unilaterally on domestic and foreign goods by reason of tthe fact that they cross a frontier- commission v levy
-also prohibited when movement of goods is within one MS- Rene Lancry 1994
prohibition on discriminatory taxation
-the rules prohibiting custom duties would be rendered ineffective is MS were able to charge taxation on products from other MS
-art 110-
(1) no MS shall impose on the products of other MS any internal taxation of any kind in execess of that imposed on similar domestic goods (prohibition against discriminatoy tax)
(2) no MS shall impose on the products of other MS any internal taxation of such nature as to afford indirect protection of other products (prohibition against protective taxation)
discriminatory taxation art 110(1)
2 issues-
1. what constitutes a similar good
-similar goods- where they have the same characteristics and meet the same consumer needs- commission v Denmark 1986
- what constitutes a tax in excess of that applied to domestic goods
-cant be in excess beacuse the terms on which products are texaed directly discriminates against imported goods so infringes article
protective taxation art 101(2)
-targets forms of taxation that are aimed at protecting domestic products against competing imports
-whether products are competing depends on whether they meet actually or potentially equivalent customer needs- commission v UK 1980
-covers all competing products not just similar products
distinguishing customs duties and discriminatory taxes
general distinction- a tax must be discriminatory or protective in effects
-general test- that the internal tax is borne by domestic and imported good alike- CO Futta
-Inyerzuccheri v Ditta Rezzano 1977- question whether tax on sales of sugar benefitting domestic sugar manufacturrers was tax or charge having equivalent effect to a custom
-decided that something that looked like an internal tax could amount to a customs duty if the conditions were fulfilled-
1. had the sole purpose of financing activities for the specific advantage of the taxed domestic product
2. the taxed product and the domestic product benefitting were the same
3. the charges imposed on the domestic product wee made good in full
quantitative restrictions: basic principles
the treaty prohibits straightforward quantative restrictions as well as measures equivalent in effect to QR
-prohibited by art 34 (imports) and 35 TFEU (exports)
-art 36 TFEU- a set of justifications for MS maintaining specific QRs and MEERQRs
quantative restrictions- measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit- Geddo v Ente Nazionale Risi 1973
measures equivalent to QR
definition- discriminatory measures and all trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra community trade- Procuerer du Roi 1974
-confirmed in cassis 1979 (product requirements met the test set out of hindering intra-community trade)
however if the barrier has a legitimate objective justification, it would be considered to fulfill a mondatory requirement exempting it from article 34
derogation and exemptions
2 main types for national rules deeed to have infringed art 34 and 35
- there are also derogation under art 36 of the treaty
art 34 and 35 shall not prevent prohibitions or restrictions on imports, exports or goods in transit if can be justified on grounds of public morality, public policy or security, the protection of health and life of humans, animals or plats, the protection of nationa treasure….
-however justifactions can not be used for arbitrary discrimination or a disguised restriction on trade between MS
-there are also mandatory requirements created in the cassis case
fiscal supervision, protection of public health, fairness of commercial transaction, defence of the consumer
also
-envirnmental protection- Commission v Denmakr 1988
-health and safety of wrokers- Oebel 1981
…
how will the courts apply the derogations under art36
- establish whether the justification is relevant to the measure
- establish whether the measure is a proportionate restriction of the free movement rules
- establish whether the measure is an arbitrary discrimination or a disguised protectionist (cannot be justified if so)
how do the courts apply mandatory requirements created by cassis
- establish whether the justification is relevant to the measure
- establish whether the measure is a proportionate restriction of the free movement rules
- if the measure is directly discriminatory, there is no avaialablity of this justification- Publivia 1991
exception to the discriminator requirement- is where the measure concerns environmental policy relating to the movement of waste production- commission v belgium 1992
quantitatibe restrictions: the rule in Keck
-the breadth of the definition in Dassonville (MEEGRs) rules that a vast area of national administration practise and regulation is opened up to suprantaional scrutiny
-however the possibility of justification moderated the potentially broad reaching effects of Dassonville
-Keck 1993- the courts reviewed the scope of the Dassonville principle, where the court decided to exempt what were termed national rules concerning selling arrangement from the scope of the Dassonville rule
- the 2 conditions that are an exempted selling arrangement neede to meet were
1.they applied to all traders and
2. that they did not have a disparate factual impact on domestic and imported products (but can still be justified via art 36 or by showing that it constitutes a mondatory requirement under cassis)
-exemption was extendable from selling arrangements to product use requirements
-however where product use requirements limited marekt acess entirely for imported products, the measure will be caught by art 34- Mickelsson and roos 2009
