Free Movement of Goods

Question 1

Provision Founding the Customs Union

Answer 1

Art 28 TFEU

Prohibits fiscal and non fiscal restrictions on trade in goods

Question 2

Commission v Italy (Art Treasures) (The Customs Union)

Answer 2

Definition of ‘goods’ for the purpose of art 28 TFEU

Products which can be valued in money and which are capable of forming the subject of commercial transactions

Question 3

Fiscal measures: Provision preventing customs duties and charges

Answer 3

Art 30 TFEU

Question 4

Dilexport

Answer 4

Prohibiton of fiscal measures: Customs Duties and Charges

MSs who breach this provision must repay the charges subject to the standard Union rules on remedies

Question 5

Commission v Italy (Art Treasures) (Prohibition of fiscal measures)

Answer 5

Art 30: Prohibition of customs, duties and charges

Italy introduced tax on art treasures to protect their artistic and archaeological heritage
CJEU implemented an effects-based approach:
The effect of this measure was deter the export of goods, and so therefore it was unlawful
There are no exceptions to Art 30- if Italy had imposed a quantitive measure they may have been able to justify it

Question 6

Fiscal measures: Article prohibiting discriminatory internal taxation

Answer 6

Art 110 TFEU

Question 7

Hansen

Answer 7

Fiscal measures: prohibition of discriminatory internal taxation

Internal taxation of similar products: Direct discrimination

Tax relief was only available to domestic businesses producing spirits
Held to be unlawful unless relief was given to spirits of a similar description coming from elsewhere in the EU

Question 8

Humblot

Answer 8

Fiscal measures: prohibition of discriminatory internal taxation

Internal taxation of similar products: Indirect discrimination

Car tax introduced in France depending on power rating of the car
No french car was rated to fall within the higher charge
Held to be indirectly discriminatory as it encouraged people to buy french over foreign cars

Question 9

Commission v Greece (Car Tax)

Answer 9

Fiscal measures: prohibition of discriminatory internal taxation

Internal taxation of similar products: justification of indirect discrimination

Similar car tax to France, but was introduced as an environmental protection measure
This was held not to be discriminatory or protectionist as the national rule pursued objective which were themselves compatible with the treaties

Question 10

Commission v France (tax on spirits)

Answer 10

Fiscal Measures: prohibition of discriminatory internal taxation

CJEU’s test to find Indirect protection of non-similar products

1. Are the products in competition?
2. If yes, is there any protective effect on other domestic products?

Therefore: Beer/wine/spirits were not similar products as they had different markets, but did have the same comparable use, so were in competition

Question 11

Prohibition of non-fiscal measures: Key treaty provisions

Answer 11

Art 34 TFEU: Imports
Art 35 TFEU: Exports
Parallel to 34
Art 36 TFEU: Justifications
Provides an exhaustive list of exceptions to Art 34 and 35

Question 12

Prohibition of non-fiscal measures: 4 key questions

Answer 12

1. Is the restriction/ measure within the scope of arts 34-36 TFEU?
2. Is the measure a quantitative restriction? (QR)
3. Is it a measure having equivalent effect to a quantitative restriction? (MEE)
4. If the measure is a QR or MEE, could it be justified by an MS?

Question 13

Belgian Waste

Answer 13

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Cases illustrating broad definition of ‘goods’

Waste is goods

Question 14

Bluhme (Q1)

Answer 14

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Cases illustrating broad definition of ‘goods’

Bees were found to be goods- they produce honey which is traded between MSs, so have monetary value

Question 15

Commission v Ireland (Buy Irish)

Answer 15

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Definition of ‘Member states’

Broad view- includes unions under the control of the state:
Private body set up by the Irish government to promote irish goods was held to be part of the MS

Question 16

Schmidberger (Fiscal Measures Q1)

Answer 16

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Acts of private parties

Can come under Arts 34-36 where state has omitted to protect the interests of traders from disruptive action by private bodies

Protest on Austrian motorway blocked key route for moving goods between MSs
However was justified by freedom of expression ORPI

Question 17

Reverse Discrimination

Answer 17

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Measures that wholly discriminate against an MSs own producers

Will not be unlawful as there must be a cross border element for the treaty provisions to be activated

Question 18

Geddo

Answer 18

Prohibition of non-fiscal measures: Q2 Is the measure a QR?

QRs are ‘measures which amount to a total or partial restraint of, according to the circumstances imports, exports or goods in transit
e.g quotas on imports, ban on exports

Question 19

Properties of QRs

Answer 19

Prohibition of non-fiscal measures: Q2 Is the measure a QR?

Are inherently discriminatory and so therefore automatically in violation of art 34 and 35 TFEU
CAN be justified on one of the grounds in art 36

Question 20

Dassonville

Answer 20

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

MEE: ‘all trading rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially intra-state trade’
Motive of MS is irrelevant- effects based
No actual evidence needed that there has been a restriction of market access

Question 21

Distinctly Applicable MEEs

Answer 21

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Create an unequal, discriminatory burden on imported products
Examples:
Promoting domestic products
Marks of origin
Price fixing
Additional requirements for imports/exports

Question 22

Indistinctly Applicable MEEs

Answer 22

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Place a dual burden on both imported and domestic products, but places a greater burden on imports
Producers in other states will then have to comply with both home, and other MSs rules

Question 23

Cassis de Dijon (Q3)

Answer 23

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?
Indistinctly applicable MEEs

Clarified that art 34 can apply to national rules that make no distinction between domestically produced and imported goods
Rationale: MS measures should be limited by reasonableness, and should not hinder trade. Observance of principle of mutual recognition.

Question 24

Groenveld

Answer 24

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?
Indistinctly applicable MEEs

Do not arise in the case of export restrictions- must always show discrimination here

Question 25

Equal Burden Rules

Answer 25

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? Impose equal burden on both imported and domestic products Some of these rules do not interfere with market access, and so therefore are not MEEs

Question 26

Keck

Answer 26

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? Test for if equal burden rules are MEEs SELLING ARRANGEMENTS may be found to be OUTIDE the scope of Art 34 if: 1. Provisions apply to all traders 2. They apply in the same way in law and fact to both sets of traders Note: CJEU distinguished between selling arrangements and product rules/conditions (on a case by case basis) Restrictions amounting to product rules and conditions cannot be justified by Keck

Question 27

Punto Casa

Answer 27

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? Restrictions on when goods may be sold are Selling arrangements for the purposes of Keck

Question 28

Commission v Greece

Answer 28

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? Restrictions on where of by whom goods may be sold are selling arrangements for the purposes of Keck

Question 29

Doc Morris

Answer 29

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? The fact that sales are made over the internet is a selling arrangement for the purposes of Keck

Question 30

De Agostini

Answer 30

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? Advertising restrictions are selling arrangements for the purposes of Keck

Question 31

Belgapom

Answer 31

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? Price controls are selling arrangements for the purposes of Keck

Question 32

Mars

Answer 32

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? Product rules/conditions which do not come under the justification in Keck include: Rules that lay down requirements to be met by goods such as those relating to their presentation

Question 33

Familiapress

Answer 33

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? Product rules/conditions which do not come under the justification in Keck include: Prize competitions that bear on the actual content on the products

Question 34

Schwarz

Answer 34

Prohibition of non-fiscal measures: Q3 Is the measure an MEE? Product rules/conditions which do not come under the justification in Keck include: Packaging requirements

Question 35

R v Henn and Darby

Answer 35

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS under Art 36? Art 36: Public morality Prohibition on imports of pornography

Question 36

Bluhme (Q4)

Answer 36

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS? Art 36: Protection of health and life of humans, animals or plants Restriction of import of bees justified to protect the habitat of the indigenous species

Question 37

Donner

Answer 37

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS under? Art 36: The protection of industrial or commercial property Restriction on distribution of replica goods justified on grounds of protection of copyright

Question 38

Non-Fiscal Measures: application of overriding reasons of public interest (ORPIs)

Answer 38

Apply ONLY to non-discriminatory and indistinctly applicable rules Evidence based: burden of proof on MS List non-exhaustive

Question 39

Cassis de Dijon (Q4)

Answer 39

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS? First ORPIs developed: Obstacles to free movement must be accepted where those provisions may be recognised as being necessary in order to satisfy mandatory requirements relating in particular to: 1. the effectiveness of fiscal supervision 2. the protection of public health 3. the fairness of commercial transactions 4. the defence of the consumer

Question 40

Commission v Denmark (recycled bottles)

Answer 40

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS? ORPIs protection of the environment

Question 41

Cinetheque

Answer 41

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS? ORPIs Protection of national culture

Question 42

Schmidberger (ORPIs)

Answer 42

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS? freedom of expression

Question 43

Commission v Portugal (tinted windows)

Answer 43

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS? ORPIs Fight against crime

Question 44

Commission v Italy (motorcycle trailers)

Answer 44

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS? ORPIs Transport Safety

Question 45

Proportionality

Answer 45

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS? A measure CANNOT be justified by Art 36 or an ORPI if it is not proportionate

Question 46

Commission v UK (dim dip lights)

Answer 46

Prohibition of fiscal measures: If a harmonisation measure is introduced, this will override or preempt national rules, and so therefore Art 34-36 will not apply (less likely under the new approach to harmonisation and the use of minimum harmonisation)