Free Movement of Goods

Article 28
1. customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and
  1. exports and of all charges having equivalent effect
  2. What are Goods?
    1. products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions’(7/68 Commission v Italy)
Article 30
1. Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States.
  1. Whatever the rationale, if the charge is made because goods are crossing a border, they will be in breach of art 30 tfeu
    1. Commission v Italy (historical artefacts)
    2. Effect not purpose
    3. Social Foonds -- Diamond WOrkers case....whatever the purpose, any pecuniary charge, whatevr its designation or application which is imposed
      1. unilaterelally on domestic or foreign goods when they cross a frontier and which is not a customs duty in the strict sense, constitutes a CEE
      2. Also, Commission v Italy--- statistical levy
    4. Inspections carried out pursuant to community law are lawful (Commission v Germany)
      1. 3 Exceptions to Article 30
        when the charge is a general system of internal dues applied to imported and domestic products equally
        Internal tax which applied almost esxclusively to imported banans offered indirect protection (Cooperative co fruta)
        they are fees for services rendered to the importer
        must be proportionate, must benefit importer
        charges for mandatory inspections required by EU law
  2. CHEE or Genuine Service?
    1. If a service is required under EU law or international law, the Member State is entitled to charge for providing the service, but it must establish
      1. that the charge is proportionate to the cost of providing the service.
        If not mandatory, i.e. eu permits, then the member state cannot charge any fees
  3. Chee or Internal Tax?
    1. Genuine taxes measures "relating to a system of internal dues applied systematically to categories of products in accordance with objective criteria
      1. irrespective of the origin of the products". (Commision v France (Reprogaphic machines)
    2. Compulsory vet health inspection imposed on oublic interest could not be regarded as a service rendered as it benefitted oublic as a whole (Bresciani)
Article 110 (Discrimanatory Tax provisions)
1. No member state shall impose, directily or indirectly, on the products of other M.S. any internal taxation of any kind in excess of that imposed
  1. directly or indirectly on similar domestic products
    1. Humblot..same regime of tax was applied to imported and domestic cars but due to imported car being more powerful, they were liable to greater tax
      1. INDIRECT DISCRIMINATION
    2. Chemical farmaceutici.. synthetic alcohol taxed higher feremented. objective was to favour alcohol from agriculatural products in ordr to reserve raw
      1. material for more economic uses..held objective justification acceptable to a measure which benefits domestic more than imported
  2. Comm. v Italy, lower taxes on regenerated oils than ordinary, same relief not given to imported products as ITL argued not possible to determine
  3. Comm. v Ireland..more leniency in paying same taxes equates to direct discrimiantion
2. Purpose? to prevent restrictions of art 28-30 being undermined by discrimnatory internal taxation
3. 110(1) prohibits taxes on import in excess of those imposed on similar domestic products
  1. John Walker, is fruit liquor simialr to whisky? objective chareceristics i.e. alcohol content. method of manufacture, consuemer perceptions of product
    1. not simialr therefore 110(2) needs to be examined
  2. Comm v Italy-bananas not simalar to apples as they had diffe objective charecterstics i.e organoleptic and also could not satisfy same consumer needs
4. 110(2) prohibits unequal tax ratings on products that are not similar but are in competition with each other i.e. affording indirect protection
  1. Commision v UK..wine and beer..if one is taxed higher, will consumers substitute it for the other?
    1. what is the degree of cross-elasticisty?
5. Denkavit..if related to a general system of dues applied systematically and with dame criteria for domestic products and imported, then will be lawful
  1. feeding stuffs from denmark
6. if a charge is made upon a product of which there is no similar domes product, then applying art 30 would make little sense..it must come under 110
  1. cooperative...italy did not produce any banana's
7. if a tax refund/ rebate is made in full --art 30----if part refund art 110
IF a mesure is caught under art.30 it is unlawful..if art 110 inquiry as to whther tax discriminates under 110(1) or has protective effect 110(2)
Article 34 (Quota's and MEQR's)
1. Dassonville: all trading rules enacted by member states which have the capability of actually or potentially, directly or indirectly hindering
  1. Intra community trade shall be considered as MEQR's
2. 'Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.'
3. Distinctly applicable
  1. MEQR's are intrepeted quite widely
    1. Commission v italy..registration requirements which were longer, more complicated and costly than that of domestic vehicles were prohibited by art 34
    2. Commission v Ireland..promtion by national govt to buy domestic equated to a 'measure'
    3. Comm. v UK..origin marking requirement allowed customers to assert prejudices..liable to increase production costs:.making it more difficult to sell
    4. Contract put out for tender which required use of certain pipes to comply with irish standard and refusal to accept similar alternatives was an MEQR
    5. (Austrian/german publishers) Price fixing to what domestic publisher has recoomended is an MEQR
  2. (Belgium car dealer case) subject to art 36 and whether it constitutes a means of arbitary discrimination or a disguised restriction on trade
  3. Can apply to a state even if private parties have been the main proponents
    1. Comm. v France..angry french farmers..govt had taken insufficent measures to prevent farmers disrupting imports
4. Indistinctly applicable
  1. foundations laid down in Cassis
    1. Principle 1
      1. if measure falls within one of the mandatory requirements, it may be justifiable
        Public Health
        protection of the consumer
      2. has to be proportionate (Rau) Margarine in cube shaped boxes
        Gilli and Andres..italian vinegar which was not made from fermentation..MS prosecuted...ECJ held labelling will do the trick
    2. Principle 2
      1. If a product is lawfully sold and marketed in one MS, other MS cannot impose any further restrictions
        unless they fall under mandatory requirements or art 36
  2. even if prima facie caught by art 34, it could escape if objectively justifiabe and the effect of the rules were proportionate (B&Q) sunday trading
  3. Keck (Selling arrangements)
    1. resale at a loss
    2. certain selling arrangements are not to be prohibited if they affect in the same manner, in law and fact, the marketing of domestic and imported
      1. Tankstation..national rule that provided for compulsory closing of petrol stations was not caught by art 34
      2. in which a product can be sold..austrian publisher, prizes, crossword....
      3. differntial impact in law and in fact
        even though a measure applies to all, if it impedes market access for imported more than domestic
        Austrian law relating to permanant establishment
  4. comm v italy 2009..prohibiton on motorcylces from towing trailers..although it fell under art 34, it could be justified on grounds of public safety
    1. where in the abcese of harmonisation, it must be proprtionate and/or necessary
      1. up to the national court to ascertain
        national rule can be justified for the protection of the enviroment provided that certain conditions are met.
Article 36: Derrogations
1. Art.34 can be saved if justifiable based on public morality, policy, security, Protection of Health and Life of Humans, Animals and Plants, national
  1. treasures and industrial and commercial property
2. Public morality
  1. ECJ will look to whether imported products were treated more harshly
    1. Henn & Darby..UK ban on both imported and domestic was justifiable
    2. Conegate..Ban on imported product even though state had not banned was clearly not justifiable
3. Public Policy
  1. French argued that minimum retail prices were essential to prevent rioting..ECJ stated that France has not shown that they do not have the resources
    1. Cullett
4. Public Security
  1. Ireland req. importer of petrol to buy 35%of their requirements from state owned refinery at prices fixed by Irish govt to maintain its own oil
    1. refining capacity Held..justifiable as essential to economy but must be proportionate
5. Public Health
  1. ECJ decide whether health claim is sustainable in principle, if uncertainty, member state to decide degree of protection but proportionality (Sandoz)

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