EU LAW Economic Integration & Free Movement Of Goods

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Created May 22, 2011
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ms516samgi

 

 
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1
Schul 1982
 
Gave the purpose of the internal market:
'the elimination of all obstacles to intra comm...
2
Commission v Italy (Italian Art Case) 1968
 
Gave definition of 'goods':
"By goods...there must be understood products which can be valued...
3
Jagerskiold 1999
 
Goods are generally things you can touch:
They 'possess tangible physical characteristics'
Obvious...
4
Donckelworke 1976
 
Article 29 TFEU
"...as regards free circulation of goods within the Community, products...
5
Van Gend en Loos (1963)
 
postal company charged tariff on importing chemicals. contested it, paid it but then took it...
6
Commission v Italy ( Statistical Levy Case)
 
Gave definition of CEE
“Any pecuniary charge, however small and whatever its designation...
7
Gingerbread Case & Diamantarbeiters
 
Article 30 catches both protectionist and non-protectionist charges
8
A v Ville de Seraing 2006
 
The requirement that the charge must be imposed on goods by reason of the fact that they cross...
9
Comm v Germany 1988
 
the Court
recognised that a charge can be lawful in 3 circumstances:
(a) If it constitutes...
10
Comm v Germany 1988
 
Fees for services:
The payment must be consideration for a genuine service of direct effect...
11
Commission v Belgium (warehousing) 1983
 
the Court noted that Article 30 TFEU will not apply if the national court considers that “the...
12
Bauhuis v Netherlands 1977
 
Fees for inspection:
Where EU legislation requires an inspection to be undertaken by a State,...
13
Comm v Belgium 1984
 
Where EU legislation permits an inspection to be undertaken by a State, the
national authorities...
14
Conditions that must be satisfied so that inspection fees do not constitute a CEE:
Commission...
 
(a) they do not exceed the actual costs of the inspections in connection with
which they...
15
Will a charge that represents the levying of what is genuinely internal taxation constitute...
 
Internal Taxation
It will not.
Kapniki 2000:
“It is settled case law that the essential...
16
Articles 30 TFEU & Article 110 TFEU are Mutually Exclusive:
 
E v Ministero delle France
17
Article 110 TFEU
 
No Member State shall impose, directly or indirectly, on the products of other Member States...
18
How to distinguish between 30 and 110
 
Kapniki Mikhailidis v. IKA, [2000] ECR I-
7145: “It is settled case law that the essential...
19
Does the fact that a MS does not produce a specific product meant that Art 110 TFEU cannot...
 
No: Coop Co Frutta 1987

20
Article 110(1)
Article 110(2)
 
Prohibits discriminatory taxation in respect of goods which are similar
Prohibits protectionism...
21
Comm v France 1980
 
Similar products= 'have similar characteristics and meet the same needs from the point of view...
22
Is there direct discrimination on the ground of origin (nationality)?
 
Direct discrimination can take 3 forms:
-Only the imported product is subject to the tax...
23
Can Direct discrimination taxes be justified?
What is the outcome if they are found to be...
 
NO
MS must equalize the tax paid by the similar products.
24
Is there indirect discrimination on the ground of origin (nationality)?
 
Humbolt 1985 brought back a powerful car, taxed, broke law because this tax only applied to...
25
Can indirect discrimination be justified?
 
yes, objective justification
26
In order for the justification to be made out a number of things have to be proved:
 
In order for the justification to be made out a number of things have to
be proved:
(1)...
27
If the contested taxation is found to be in violation of Art 110(1) then discrimination must...
 
(a) Either equalising the taxes imposed on domestic and imported goods;
or
(b) Extending...
28
Article 110(2) function of it:
 
“The function of the second paragraph of [Article110 TFEU] is to cover, in addition [to the...
29
How does the court decide whether the products are in competition?
 
It is basically using two ‘tests’:
a) The economic test which asks whether there is...
30
What happens is the 2 products are in competition?
 
If the Court finds that the two categories of products are in competition, then it
must...
31
Is there protectionism?
 
Comm v Italy (Bananas )
higher rate of tax on bananas than other fruit such as apples/pears...
32
If the contested tax is found to be in violation of Art 110(2) the MS must do what?

 
If the contested tax is found to be in violation of Article 110(2) TFEU the Member
State...
33
Article 34
 
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited
between...
34
R v Royal Pharmaceutical Society of Great Britain
 
HOWEVER, it should be noted that the Court of Justice has interpreted the
notion of “State”...
35
Commission v. France (Strawberries)
 
Note, also, that the State may have to take responsibility for the action of
individuals...
36
MOREOVER, the statements made by a government official and which are
capable of impeding...
 
Case C-470/03, AGM-COS.MET, [2007] ECR I-2749
37
Art 34, 30 n 110 are mutually exclusive
 
Ianelli:
“However wide the field of application of Article [34] may be, it nevertheless...
38
Art 34 includes 2 fold prohibition:
 
1) QR
2) MEQRs
39
Definition of QR
 
Geddo v Ente 1973
“... measures which amount to a total or partial restraint of, according...
40
Henn v Darby 1980
 
Total Restraint:
“It is clear that this provision [Article 34 TFEU] includes a prohibition...
41
Definition of MEQR
 
Dassonville Formula:
“All trading rules enacted by Member States which are capable of...
42
distinctly applicable measures
 
(measures that are applicable only to non-domestic imports/exports)
Different burden in...
43
indistinctly applicable measures
 
(measures that are applicable to both domestic and non-domestic imports/exports).
Indistinctly...
44
Does art.34 prohibit both indistinctly and distinctly?
 
yes.
45
Cassis de Dijon
 
The case concerned the sale of "cassis de Dijon" (a type of crème de cassis) in Germany by...
46
Mathot 1987
 
reverse discrimination is not prohibited by EU law
47
2 principles arising from cassis de dijon
 
Mutual recognition
14. “.... There is therefore no valid reason why, provided that they...
48
The post-Cassis jurisprudence on indistinctly applicable measures
Many of the cases on indistinctly...
 
Packaging Requirements
Case 261/81, Rau, [1982] ECR 3961
C-470/93, Mars, [1995] ECR I-1923
Product...
49
HOWEVER, there have also been a number of cases which concerned indistinctly
applicable...
 
Cases 60 & 61/84, Cinetheque, [1985] ECR 2605
Case 145/88, Torfaen, [1989] ECR 3851
50
Advantages of Cassis:
 
• National regulatory autonomy respected + retention of cultural identity
• Experimentation...
51
PROBLEMS with the Court’s case-law post-Cassis
 
1. Race to the bottom?
2. Reduction in consumer protection and other non-economic interests?...
52
The diffculties prior to keck
The case law-paw prior to keck- equal burden rules in or out?
 
Oebel 1981: (out)
prohibited delivery of bakery products between 10 p.m. and 5.45...
53
The problems
 
 Inconsistency between the various rulings of the Court  Uncertainty  Mechanical...
54
Question: What is the purpose of Article 34 TFEU?
 
Is Article 34 TFEU intended to liberalise inter-state trade? OR Is Article 34 TFEU intended...
55
What are market circumstances rules?
 
are those concerning who sells a product; when a product can be sold; where...
56
Dassonville and Cassis de Dijon are sufficiently broad so as to include within the...
 
 Should market circumstances rules be included within the scope of Article 34 TFEU? ...
57
The Keck formula?
 
Keck, Para. 16: “However, contrary to what has previously been decided, the application...
58
what 2 categoris of rules is keck based on?
 
• Measures imposing product requirements (dealt under Cassis) • Measures regulating...
59
The two categories of rules and presumptions & the burden of proof: It is clear that...
 
Keck seems to have provided a clear division of regulatory competence: the producing...
60
what is a selling arrangement?
 
• No definition provided by the ECJ • The Court recently summarised its case-law on...
61
Examples of rules which have been considered by the Court to be regulating selling arrangements
 
 National rules on the times and places at which goods could be sold (Joined Cases C-69...
62
At times the classification of a national measure (indistinctly applicable MEQR or certain...
 
 Case C-368/95, Familiapress, [1997] ECR I-3689. 11. ...even though the relevant...
63
PROBLEMS WITH KECK
 
• The Court did not specify which of its previous case-law was overruled (“contrary...
64
The problem with dynamic selling arrangements
 
Static selling arrangements: rules relating to the hours at which shops may be open,...
65
THE APPLICATION OF THE SECOND KECK CONDITION
 
Condition II of Keck: “Does not affect in the same manner, in law and in fact, the marketing...
66
Moving awa from keck and towards a market access test? 3 cases 1st case
 
Commission v. Italy (mopeds) [2009]
Article 258 TFEU action brought by Commission...
67
2nd case:
Aklagaren v. Mickelsson and Roos
, Judgment of 4 June 2009, not yet...
 
Facts: This was an Article 267 TFEU reference which was made by a Swedish court to the ECJ...
68
3rd case:
Ker-Optika
, Judgment of 2 December 2010, not yet reported
 
Facts: This was an Article 267 TFEU reference which was made by a Hungarian court to the...
69
Contrast paras. 16 & 17 of Keck with para. 51 of Ker-Optika
 
Para. 16 of Keck: By contrast, contrary to what has previously been decided, the...
70
Once it is decided that a national measure is caught by Article 34 TFEU because it is...
 
 The Treaty Derogations (Article 36 TFEU)  The mandatory requirements (recognised,...
71
qrs and distinctly applicable meqrs may be justified only under what?
 
art 36 tfeu derogations
72
indistinctly applicable meqrs may be justified under what?
 
art 36 tfeu derogations and the madatory requirements
73
when determining whether a measure is justified, it is not suffiicient to point to a lefitimate...
 
proved that the measure is proportionate
74
the article 36 derogations
 
The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports,...
75
In order for a national measure (a QR or an MEQR) to take precedence over the free movement...
 
 It must serve one (or more) of the important interests that are included on the Article...
76
POINTS TO REMEMBER:
 
• The Court has interpreted Article 36 TFEU strictly • The burden of proof is on the...
77
1. THE ARTICLE 36 TFEU PROVISO
 
“Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination...
78
2. PROPORTIONALITY
 
The Court has long emphasised that the measures taken by the Member States must not only...
79
The principle of proportionality comprises essentially two tests:
 
• A test of suitability • A test of necessity - One important part of the “necessity”...
80
3. ARTICLE 36 TFEU VS. POSITIVE HARMONISATION
 
 NOTE!!!!!!!!!! A Member State can invoke the Article 36 TFEU derogations only in the...
81
4. THE DEROGATIONS AND THE COURT’S CASE-LAW
 
• The Article 36 TFEU list of derogations is EXHAUSTIVE:  Public morality  Public...
82
public morality:
 
henn v darby
conegate
83
public policy
 
Narrow interpretation in the context of goods: Case 177/83, Ringelhan, [1984] ECR...
84
public security
 
Case 72/83, Campus Oil, [1984] ECR 2727 “the aim of ensuring a minimum supply of...


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