EU LAW Economic Integration & Free Movement Of Goods

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Schul 1982
Gave the purpose of the internal market:'the elimination of all obstacles to intra comm trade...merge the national markets into single market...'
Commission v Italy (Italian Art Case) 1968
Gave definition of 'goods':"By goods...there must be understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions"
Jagerskiold 1999
Goods are generally things you can touch:They 'possess tangible physical characteristics'Obvious Example: Comm v P'ment & Council Tabacco Ad)Not so obvious eg: Campus Oil 1984
Donckelworke 1976
Article 29 TFEU"...as regards free circulation of goods within the Community, products entitled to 'free circulation' are definitively and wholly assimilated to products originating in Member States".
Van Gend en Loos (1963)
postal company charged tariff on importing chemicals. contested it, paid it but then took it to court and relied on Art 30 which prohibits CDs and CEEs. Held that they were allowed to rely upon it, landmark case because it gave rise to the direct effect...
Commission v Italy ( Statistical Levy Case)
Gave definition of CEE“Any pecuniary charge, however small and whatever its designation and mode of application,which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross afrontier and which is not a customs duty...
Gingerbread Case & Diamantarbeiters
Article 30 catches both protectionist and non-protectionist charges
A v Ville de Seraing 2006
The requirement that the charge must be imposed on goods by reason of the fact that they cross a frontier - the charging even must be the importation/ exportation of goods from/to another Member State. Art 30 applies to charges levied at the frontier....
Comm v Germany 1988
the Courtrecognised that a charge can be lawful in 3 circumstances:(a) If it constitutes payment for genuine administrative services rendered to theimporter/exporter, of a sum in proportion to the service (“fees for services”)(b) If it constitutes...
Comm v Germany 1988
Fees for services:The payment must be consideration for a genuine service of direct effect to the importer or exporter-must not be consideration for a service which benefits the public as a whole
Commission v Belgium (warehousing) 1983
the Court noted that Article 30 TFEU will not apply if the national court considers that “the charge in question is the consideration for a service actually rendered to theimporter and is of an amount commensurate with that service”.
Bauhuis v Netherlands 1977
Fees for inspection:Where EU legislation requires an inspection to be undertaken by a State, thenational authorities can impose a charge in order to cover the costs of thatmandatory inspection
Comm v Belgium 1984
Where EU legislation permits an inspection to be undertaken by a State, thenational authorities cannot recover any fees charged from the traders
Conditions that must be satisfied so that inspection fees do not constitute a CEE:Commission v. Germany, [1988]
(a) they do not exceed the actual costs of the inspections in connection withwhich they are charged(b) the inspections in question are obligatory and uniform for all the productsconcerned in the EU(c) they are prescribed by EU law in the general interest...
Will a charge that represents the levying of what is genuinely internal taxation constitute a charge having an equivalent effect?
Internal TaxationIt will not. Kapniki 2000:“It is settled case law that the essential feature of a charge having equivalent effect to acustoms duty which distinguishes it from an internal tax is that the former is borne solely by aproduct which crosses...
Articles 30 TFEU & Article 110 TFEU are Mutually Exclusive:
E v Ministero delle France
Article 110 TFEU
No Member State shall impose, directly or indirectly, on the products of other Member States anyinternal taxation of any kind in excess of that imposed directly or indirectly on similar domesticproducts.Furthermore, no Member State shall impose on the...
How to distinguish between 30 and 110
Kapniki Mikhailidis v. IKA, [2000] ECR I-7145: “It is settled case law that the essential feature of a charge having equivalent effect to a customsduty which distinguishes it from an internal tax is that the former is borne solely by a product whichcrosses...
Does the fact that a MS does not produce a specific product meant that Art 110 TFEU cannot apply?
No: Coop Co Frutta 1987
Article 110(1)Article 110(2)
Prohibits discriminatory taxation in respect of goods which are similarProhibits protectionism in the taxation of goods which are in competition
Comm v France 1980
Similar products= 'have similar characteristics and meet the same needs from the point of view of consumers'.
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 Lutticke v H-The imported product is taxed at a higher rate than the domestic and imported goods Haahr Petroleum 1997-If different methods are used for calculating...
Can Direct discrimination taxes be justified?What is the outcome if they are found to be directly discriminatory?
NOMS must equalize the tax paid by the similar products.
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 foreign cars.Held, that a special tax imposed upon cars which exceeded a certain fiscal rating was contrary to Art.95 EEC when the only cars affected by the special...
Can indirect discrimination be justified?
yes, objective justification
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 tobe proved:(1) The national interest relied on must be unconnected with the originof the product(2) The national interest must pursue an objective recognised by theEU as legitimate(3)...
If the contested taxation is found to be in violation of Art 110(1) then discrimination must be eliminated by:
(a) Either equalising the taxes imposed on domestic and imported goods; or(b) Extending a benefit enjoyed by domestic goods to imported goods.
Article 110(2) function of it:
“The function of the second paragraph of [Article110 TFEU] is to cover, in addition [to the firstparagraph], all forms of indirect tax protection in the case of products which, without being similarwithin the meaning of the first paragraph, are nevertheless...
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 cross-elasticity of demand.b) Other factors are taken into account
What happens is the 2 products are in competition?
If the Court finds that the two categories of products are in competition, then itmust consider whether the impugned tax system protects the domestic product (i.e.there is protectionism).
Is there protectionism?
Comm v Italy (Bananas ) higher rate of tax on bananas than other fruit such as apples/pears products not similar because of different characteristics but products were in competition the higher tax on bananas afforded indirect protection to home-grown...
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 MemberState must remove the protective effect from its taxation scheme.What is required is that the protectionism enjoyed by the domestic goods must beremoved so that the tax...
Article 34
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibitedbetween Member States. Directly effective Ianelli 1977but only vertically directly effective Vlaamse, ; Art 34 n 35 TFEU concern only public measures and...
R v Royal Pharmaceutical Society of Great Britain
HOWEVER, it should be noted that the Court of Justice has interpreted thenotion of “State” broadly so that not only the central government or theauthorities of a Member State are bound by Article 34 TFEU, but also bodieswhich regulate the conduct...
Commission v. France (Strawberries)
Note, also, that the State may have to take responsibility for the action ofindividuals who have been disrupting the application of Article 34 TFEU,even though the activity of the individuals is not itself caught by Article 34TFEU. In such cases, the...
MOREOVER, the statements made by a government official and which arecapable of impeding imports of goods from other Member States may beattributable to his Member State
Case C-470/03, AGM-COS.MET, [2007] ECR I-2749
Art 34, 30 n 110 are mutually exclusive
Ianelli:“However wide the field of application of Article [34] may be, it nevertheless does not includeobstacles to trade covered by other provisions of the Treaty ... obstacles which are of a fiscal nature orhave equivalent effect and are covered by...
Art 34 includes 2 fold prohibition:
1) QR2) MEQRs
Definition of QR
Geddo v Ente 1973“... measures which amount to a total or partial restraint of, according to thecircumstances, imports, exports or goods in transit”.
Henn v Darby 1980
Total Restraint:“It is clear that this provision [Article 34 TFEU] includes a prohibition on imports inasmuch as this is the most extreme form of restriction”.completely banned the porn coming in, was contrary but they could reject as a public morality...
Definition of MEQR
Dassonville Formula:“All trading rules enacted by Member States which are capable of hindering, directlyor indirectly, actually or potentially, intra-Community trade are to be considered asmeasures having an effect equivalent to quantitative restrictions”NOTE:...
distinctly applicable measures
(measures that are applicable only to non-domestic imports/exports)Different burden in law + Different burden in fact=Distinctly applicable measure=Direct discrimination on the ground of origin of the products(= direct discrimination against imported...
indistinctly applicable measures
(measures that are applicable to both domestic and non-domestic imports/exports).Indistinctly applicable measures are ones that, prima facie, do not favor domestic producers over importers, and whose effects are equal on both.Same burden in law + Different...
Does art.34 prohibit both indistinctly and distinctly?
Cassis de Dijon
The case concerned the sale of "cassis de Dijon" (a type of crème de cassis) in Germany by an importer and retailer (Rewe). Crème de cassis is a blackcurrant liqueur produced in France containing 15% to 20% alcohol by volume. The German government had...
Mathot 1987
reverse discrimination is not prohibited by EU law
2 principles arising from cassis de dijon
Mutual recognition14. “.... There is therefore no valid reason why, provided that they havebeen lawfully produced and marketed in one of the Member States,alcoholic beverages should not be introduced into any other Member State;the sale of such products...
The post-Cassis jurisprudence on indistinctly applicable measuresMany of the cases on indistinctly applicable measures concern packaging andpresentation requirements.
Packaging RequirementsCase 261/81, Rau, [1982] ECR 3961C-470/93, Mars, [1995] ECR I-1923Product RequirementsCase 407/85, Drei Glocken, [1988] ECR 4233
HOWEVER, there have also been a number of cases which concerned indistinctlyapplicable rules on market circumstances (“selling arrangements”)
Cases 60 & 61/84, Cinetheque, [1985] ECR 2605Case 145/88, Torfaen, [1989] ECR 3851
Advantages of Cassis:
• National regulatory autonomy respected + retention of cultural identity• Experimentation at national level• Wider consumer choice• Easier and quicker adaptation to technological change• No excessive centralisation (No “Euro-products”)•...
PROBLEMS with the Court’s case-law post-Cassis
1. Race to the bottom?2. Reduction in consumer protection and other non-economic interests? – Toomuch emphasis on negative integration and, often, as a result of this, completederegulation3. Perhaps, over-intrusion of EU law into national regulatory...
The diffculties prior to keckThe 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 a.m. was challenged. that these rules did not infringe the rules against discrimination under Art.7. Nor did they breach the rules preventing indirect restrictions...
The problems
 Inconsistency between the various rulings of the Court  Uncertainty  Mechanical application of the Dassonville formula  Danger of supranational law encroaching on traditional rules, habits and uses of Member State law  Increased...
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 to encourage the unhindered pursuit of commerce in the individual Member States, as some traders would argue? This question was posed by Advocate General...
What are market circumstances rules?
are those concerning who sells a product; when a product can be sold; where a product can be sold; and how (e.g. with a gift) a product can be sold.
Dassonville and Cassis de Dijon are sufficiently broad so as to include within the scope of Article 34 TFEU market circumstances rules, What are the questions posed from this statement?
 Should market circumstances rules be included within the scope of Article 34 TFEU?  Do they impede the achievement of the aim of Article 34 TFEU?  What is the aim of Article 34 TFEU?
The Keck formula?
Keck, Para. 16: “However, contrary to what has previously been decided, the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly...
what 2 categoris of rules is keck based on?
• Measures imposing product requirements (dealt under Cassis) • Measures regulating selling arrangements (marketing circumstances) (dealt under Keck) • NB. If a measure falls in neither of these two categories, it is only assessed under...
The two categories of rules and presumptions & the burden of proof: It is clear that the rationale for the Keck formula is based in part upon the distinction between dual-burden rules and equal-burden rules:
Keck seems to have provided a clear division of regulatory competence: the producing State makes the initial choices about the level of regulation of product requirements; while the importing State makes the initial choice for...
what is a selling arrangement?
• No definition provided by the ECJ • The Court recently summarised its case-law on what can be considered a selling arrangement in Case C-71/02, Karner, [2004] ECR I-3025, para. 38: “Provisions concerning inter alia the place...
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 & 258/93, Punto Casa, [1994] ECR I-2355 and Joined Cases C-418-421/93, 460-462/93, 464/93, 9-11/94, 14-15/94, Semeraro Casa, [1996] ECR I-2975) ...
At times the classification of a national measure (indistinctly applicable MEQR or certain selling arrangement) may prove difficult
 Case C-368/95, Familiapress, [1997] ECR I-3689. 11. ...even though the relevant national legislation is directed against a method of sales promotion, in this case it bears on the actual content of the products, in so far as the...
• The Court did not specify which of its previous case-law was overruled (“contrary to what was previously decided”) • The Court did not provide a clear definition of the term “selling arrangements” • The distinction between product...
The problem with dynamic selling arrangements
Static selling arrangements: rules relating to the hours at which shops may be open, the length of time for which people may work, or the type of premises in which certain goods may be sold. • Non-static or dynamic selling arrangements...
Condition II of Keck: “Does not affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States” Joined Cases C-34-36/95, De Agostini¸[1997] ECR I-3843 Case C-405/98, Gourmet,...
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 against Italy. Question whether Italian rules which prohibited mopeds, motorcycles, tricycles and quadricycles from towing a trailer, were contrary to Article...
2nd case:Aklagaren v. Mickelsson and Roos, Judgment of 4 June 2009, not yet reported
Facts: This was an Article 267 TFEU reference which was made by a Swedish court to the ECJ in the course of criminal proceedings brought by the Swedish Public Prosecutor’s Office against Mr Mickelsson and Mr Roos for failure to comply with a Swedish...
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 ECJ in the course of proceedings between Ker-Optika (a company selling contact lenses via its Internet site) and the South Transdanubian Regional Directorate of...
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 application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly...
Once it is decided that a national measure is caught by Article 34 TFEU because it is either a QR or an MEQR, the next issue is whether it is justified. what are the 2 types of justification?
 The Treaty Derogations (Article 36 TFEU)  The mandatory requirements (recognised, for the first time, in Cassis de Dijon)
qrs and distinctly applicable meqrs may be justified only under what?
art 36 tfeu derogations
indistinctly applicable meqrs may be justified under what?
art 36 tfeu derogations and the madatory requirements
when determining whether a measure is justified, it is not suffiicient to point to a lefitimate non-economic aim which is acheived through the same measure it must also be what?
proved that the measure is proportionate
the article 36 derogations
The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals...
In order for a national measure (a QR or an MEQR) to take precedence over the free movement of goods and thus not become inapplicable even though it imposes an obstacle to the free movement of goods, it must satisfy 3 requirements:
 It must serve one (or more) of the important interests that are included on the Article 36 TFEU list (e.g. public health or public morality)  It must be proportionate  It must not constitute a means of arbitrary discrimination or a disguised restriction...
• The Court has interpreted Article 36 TFEU strictly • The burden of proof is on the national authorities to demonstrate that their measures are suitable and necessary to give effective protection to the interest(s) on which they rely from the...
“Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”. Purpose of this proviso: Compare ..... Case 34/79, Henn and Darby,...
The Court has long emphasised that the measures taken by the Member States must not only genuinely serve the purpose for which they are intended but they must also be proportionate to the risk presented by the import, with the burden of proving proportionality...
The principle of proportionality comprises essentially two tests:
• A test of suitability • A test of necessity - One important part of the “necessity” limb is the question whether there are any other less restrictive means of producing the same result (the most usual example are cases involving a reliance...
 NOTE!!!!!!!!!! A Member State can invoke the Article 36 TFEU derogations only in the absence of Union legislation, provided that the harmonisation occupies the field to the exclusion of Member State competence (Case 190/87, Moorman, [1988]...
• The Article 36 TFEU list of derogations is EXHAUSTIVE:  Public morality  Public policy  Public security  Protection of health and life of humans, animals or plants  Protection of national treasures possessing artistic, historic...
public morality:
henn v darbyconegate
public policy
Narrow interpretation in the context of goods: Case 177/83, Ringelhan, [1984] ECR 3651, the Court made it clear that “public policy” does not include considerations of consumer protection. Only relied on successfully once: Case 7/78, Thompson,...
public security
Case 72/83, Campus Oil, [1984] ECR 2727 “the aim of ensuring a minimum supply of petroleum products at all times was to be regarded as transcending purely economic considerations”. “It should be stated ... that petroleum products, because...

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