Financial Barriers

Applicable Law...
1. TFEU Art.28
  1. "The union shall be based upon a customs union which shall cover all trade in goods and which shall involve the prohibition between MS of customs duties on imports and exports and of all charges having equivalent effect and the adoption of a common customs tariff in relations with third countries"
    1. Requires creation of a customs union between MS and removal of existing customs duties and CHEE's between MS, and also requires adoption of a CCT for goods imported into the customs union from third countries
2. TFEU Art.29
  1. "Products coming from a third country shall be considered to be in free circulation in a MS if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that MS, and if hey have not benefited from a total or partial drawback of such duties or charges"
    1. Goods from third countries which have paid CCT on entry to the customs union are now treated as though they originated in EU
3. TFEU Art.30
  1. "Customs duties on imports and exports and charges having equivalent effect shall be prohibited between MS. This prohibitions shall also apply to customs duties of a fiscal nature"
    1. Prohibits new customs duties and CHEE's on imports and exports
Customs Duties
1. National tax/levy imposed on imported/exported goods as part of a national customs and excise regime
2. Doesn't apply to domestically produced and consumed goods
3. Imposed goods move between MS (cross a frontier)
4. All unlawful. No justification. Must be removed
CHEE's
1. Definition
  1. Commission v Italy (Statistical Levy) Case 24/68 - "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 a frontier...constitutes a charge having equivalent effect...even if it is not imposed for the benefit of the state, it is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with the domestic product"
    1. Purpose doesn't matter at all. If there's a charge for crossing a frontier it is a CHEE and unlawful
      1. Commission v Italy (Art Treasures) Case 7/68
      2. Social Fun for Diamond Workers Case 2&3/69
      3. Commission v Luxembourg (Gingerbread) Case 2&3/62
  2. Characteristics (from case law)
    1. 1. Any pecuniary charge
      1. 2. Whatever its designation or mode of application
        3. Imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier
        4. Amount of charge is irrelevant
        5. Even if not for the benefit of the state - purpose/beneficiaries/destination of charge are irrelevant
        6. Imposed by reason that goods cross frontier, BUT time and place of imposition is not relevant: charge need not be levied at the border to be a CD or CHEE. Frontier could be regional
    2. Once held to come within Art.30 it is prima facie unlawful
      1. Commission v Germany 18/87 - CofJ held certain charges will NOT come within scope of Art.30
        Charge made for the provision of a genuine administrative/commercial service to the importer/exporter
        Charge levied for a mandatory inspection imposed by EU or international law
        Charge which is not in fact a CHEE but an internal tax falling within the scope of internal taxation (Art.110)
        TFEU Art.110 - "No MS shall impose, directly or indirectly, on the products of other MS any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products
        Charge can't be a CHEE and an internal tax, it's one or the other
        If it is a CHEE and not listed as one of the exceptions, it is unlawful. If it is an internal tax it may be lawful
        How to distinguish between the two?
        Denkavit Case 132/78 - Charge can escape classification as CHEE if relates to a general system of internal taxation applied systematically and in accordance with the same criteria to domestic products and imported products alike
        Ask - Is the charge: imposed on domestic and imported goods in the same way? at the same time (stage of production and marketing)? at the same rate? according to the same criteria? If so.... more likely to be internal tax not CHEE
        Marimex SpA v Italian Minister of Finance Case 29/72 - Charge imposed on domestic and imported meat in respect of veterinary inspections required by Italian legislation. Held: CHEE - imported and domestic meat inspected by different bodies applying different criteria
        Commission v Germany 18/87 - Charge is not a CHEE provided: 1) doesn't exceed actual cost of the inspection (Bauhuis 46/76), 2) inspection is obligatory and uniform for all the products concerned in the Union, 3) it is prescribed by EU law in general interests of the union, 4) promotes FMOG by neutralising obstacles which could arise from national inspections adopted in accordance with Art.36
        Commission v Belgium (Warehousing) Case 132/82
        Commission v Italy (Statistical Levy) Case 24/68

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Financial Barriers

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