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**A-EU Constitutional > Art 30, 110 and 34 > Flashcards

Art 30, 110 and 34 Flashcards

1
Q

Article 28 TFEU

A

the creation of a customs union

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2
Q

What are the two dimensions of a customs union under Art 28 TFEU?

A

1) abolishment of customs duties between MS and of all charges of equivalent effect
(internal dimension)

2) adoption of common customs tariffs for goods coming from third countries
(external dimension)

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3
Q

What would the backstop arrangement in BREXIT have done?

A

would mean that the UK remains a member of the Customs Union until a new trade agreement is concluded with the EU.

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4
Q

What does Art 30 say?

A

Art 30 prohibits customs duties and all charges having equivalent effect between MS

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5
Q

Custom duties and charges having equivalent effect are distinctly applicable only to imports or exports that cross the national frontier:
This can include regional borders such as in which case?

A

Lancry

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6
Q

Explain case of Lancry

A 
Concerned a French oversees territory which imposed dock dues on all goods was found to have infringed Art 34
It would be inconsistent to hold that it would class as a charge having equivalent effect for other MS but not for the goods of another part of the same state
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7
Q 
Concerned a French oversees territory which imposed dock dues on all goods was found to have infringed Art 34
It would be inconsistent to hold that it would class as a charge having equivalent effect for other MS but not for the goods of another part of the same state
what case?
A

Lancry

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8
Q

What is the definition of a charge having equivalent effect in Statistical Levy?

A

“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

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9
Q

“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
which case

A

Statistical Levy

Art 30

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10
Q

the purpose of the imposition of the charge is irrelevant; statistical levy stated what?
Art 30

A

The purpose of the abolution of customs was to eliminate an obstacles to the movement of such goods, however small, and therefore constitutes a CEE

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11
Q

What are the two exceptions where MS can justify customs duties or charges having equivalent effect?

A

1) where the MS are providing a genuine service to the importer
2) the service has to be directly beneficial
- Belgian Warehousing

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12
Q

there are two exceptions where MS can justify customs duties or charges having equivalent effect,
1) where the MS are providing a genuine service to the importer but the service has to be directly beneficial
-Belgian Warehousing
explain this case

2)where the MS is charging a fee for a health inspection required by EU law

A

Belgium was making importers store their items in warehouses whilst the items went through customs clearance, and charging them for this. CJ held that a charge is a CEE where importers are forced to pay warehouse charges for storing their goods, where they have to store their goods soley for the purpose of customs formalities

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13
Q

Belgium was making importers store their items in warehouses whilst the items went through customs clearance, and charging them for this. CJ held that a charge is a CEE where importers are forced to pay warehouse charges for storing their goods, where they have to store their goods soley for the purpose of customs formalities
what case?

A

-Belgian Warehousing

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14
Q

What does Art 30 apply to?

A

applies to charges that are raised on goods crossing a border

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15
Q

What does Art 110 apply to?

A

TFEU is about internal taxation: tax charges that apply to all products regardless of their origin.

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16
Q

What does Art 110 TFEU prohibit?

A

1) if imported goods are similar to a domestic product, they cannot discriminate against the imported goods (1)
2) if the imported goods are in competition with domestic goods, MS cannot provide indirect protection to the domestic goods through taxation
e. g it prohibits both direct and indirect discrimination

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17
Q

Indirect discrimination can be justified if the Member State can establish that it is making a distinction between products on the basis of objective criteria
This was discussed in which case?

A

Chemical Farmacceutici

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18
Q

What happened in the case of Dark Tabbacco?

A

French tax adjusted the system of taxation in such a way that cigarettes falling within the most favourable tax category come almost exclusively from domestic production, with almost all imported products coming within the least favourable category
This feature is not nullified by the fact a small fraction of imported products comes within the favorable category.
System was found to favour domestic products

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19
Q

French tax adjusted the system of taxation in such a way that cigarettes falling within the most favourable tax category come almost exclusively from domestic production, with almost all imported products coming within the least favourable category
This feature is not nullified by the fact a small fraction of imported products comes within the favorable category.
System was found to favour domestic products

what case?

A

Dark Tabbacco

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20
Q

What did the Court say in Wine and Beer case?

A

that the COJ was critical of MS crystallising consumer habits through taxation to consolidate an advantage to national industries

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21
Q

What is the relationship between Art 30 and Art 110 TFEU?

A

they are mutually exclusive

Article 30 applies to charges imposed on goods crossing a border, while Article 110 TFEU applies to internal taxation.

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22
Q

Article 30 and Article 110 TFEU apply to fiscal measures – measures that are about monetary charges imposed on products
What does Article 34 apply to?

A

Article 34 TFEU applies to non-fiscal measures – measures that are not of a monetary nature.

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23
Q

What does Article 34 say?

A

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States

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24
Q

a. Article 34 TFEU prohibits quantitative restrictions (QRs) and all measures having equivalent effect to a quantitative restriction (MEEs).

What are quantitive restrictions and measures having equivalent effect?

A

QRs are national measures that impose an import ban or an import quota.

MEEs are measures that do not directly limit the imports of a particular product, but that have the effect of doing so.

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25
Q

In what case did the COJ famously define measures having equivalent effect?

A

Dassonville

26
Q

a. Article 34 TFEU is only applicable to trade between Member States. There has to be a cross-border dimension

What has the courts stance been on this?

A

quite flexible, if there is a potential cross-border impact of a national measure, it is already sufficient to bring the case within Art 34

27
Q

b. Article 34 TFEU does not have horizontal direct effect and cannot be directly relied on against private parties, why?

A

private parties can be challenged through the competition provisions, while State action should be challenged under the free movement provisions.

28
Q

e. The Court of Justice has also held that Member States have to do everything they can to facilitate free movement on their territory. This also means that they may have to take action against private parties who are creating obstacles to free movement:

Which case demonstrates this?

A

Spanish strawberries
but the MS is given a certain discretion to balance the various interests of the parties involved (e.g freedom of expression v freedom of movement)

29
Q

The Court of Justice laid down the test to assess whether a national measure constitutes an MEE in Dassonville:
What was this test?

A

All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions

30
Q

Why did States not like the broad definition given to measures having equivalent effect in Dassonville?

A

it meant they would have to justify a lot of national measures under Art 34 and so this definition restricted the regulatory autonomy of MS

31
Q

Dassonville was quickly followed by a judgement in Cassis de Dijon. What did the Court find in this case?

A

Principle of mutual recognition. If products comply with the rules of one Member State, there is presumption of regulatory equivalence. If there is a double burden this would restrict free movement

32
Q

What case brought about the principal of mutual recognition?

A

Cassis de Dijon

33
Q

In Cassis de Dijon, the Court of Justice also created an additional category of justifications, what?

A

mandatory requirements

34
Q

After Cassis de Dijon, a distinction is made between distinctly applicable and indistinctly applicable MEEs.
what are the difference?

A

Distinctly applicable MEEs: national rules that are directly discriminatory in the sense that they make a direct distinction between domestic and imported products.

Indistinctly applicable MEEs: national rules that do not make a direct distinction between domestic and imported products, but that have the effect of making it more difficult for imported products to be placed on the market e.g a product requirement

35
Q

Dassonville
Cassis di Dijon
then Sunday Trading, what did this do which ultimately led to Keck>

A

According to the Sunday Trading Cases, all national laws that somehow hindered trade could be brought into Article 34 and needed to be justified; this ultimately led to Keck and the idea that negative integration and the liberalisation of trade between MS had gone too far

36
Q

What led to keck

A

he Sunday Trading Cases, all national laws that somehow hindered trade could be brought into Article 34 and needed to be justified; this ultimately led to Keck and the idea that negative integration and the liberalisation of trade between MS had gone too far

37
Q

what did the Court in Keck realise?

A

that something had gone fundamentally wrong and the court needed to return to a more international law reading of Art 34

The Court was very explicit about the fact that it was overruling some of its earlier case law (this is very rare for the Court of Justice!).

38
Q

How did the Court limit the scope of application of Art 34 TEU in Keck?

A

The Court did this by creating a new category of national rules that fell outside the scope of application of Article 34 TFEU: certain selling arrangements (CSAs).

39
Q

In Keck, What were the two conditions that certain selling arrangements had to comply with to fall outside the scope of application of Article 34 TFEU:

A

1) CSAs have to apply to all relevant traders
2) They have to affect in the same manner, in law and in fact, domestic and imported products (no discrimination against imported products is allowed)

if these conditions are satisfied, the selling arrangement does not constitute a breach of Article 34 TFEU and does not have to be justified.
If not, then the selling arrangement automatically constitutes an MEE which has to be justified

40
Q

What are examples of selling arrangements?

A

conditions under which a product can be placed on the market, but that do not affect the physical presentation of the product.
e.g where a product can be sold, when, who and what the price can be

41
Q

What case distinguishes between selling arrangements and product requirements?

A

Familiapress

42
Q

Case of Familiapress

A

an Austrian rule that prohibited prize contests in magazines. Product requirements are always MEEs and will have to be justified.

43
Q

what is the Keck test focused on?

A

market access
rules that prevent or that make it more difficult for imported products to get access to the national market are indirectly discriminatory and do not satisfy the second Keck proviso which would bring it out the scope of Art 34
(therefore it is not clear how much Keck provides a regulatory safe zone for MS)

44
Q

What was the post-kick battle about?

A

the Member States wanted the concept of selling arrangement to include as many national measures as possible

45
Q

What did Advocate General Jacobs in Leclerc-Siplec (C-412/93) say about Art 34?

A

a. The problem with this approach was that Article 34 TFEU did not have a de minimis threshold – even national rules which had a minor impact on trade between Member States were caught by Article 34 TFEU. AG Jacobs appeared to raise the threshold for breaching Article 34 TFEU to “substantial hindrance”
the argument that the Court’s focus should be more on the impact of national measures rather than the type seemed sensible.

46
Q

a. The problem with this approach was that Article 34 TFEU did not have a de minimis threshold – even national rules which had a minor impact on trade between Member States were caught by Article 34 TFEU. AG Jacobs appeared to raise the threshold for breaching Article 34 TFEU to “substantial hindrance”
the argument that the Court’s focus should be more on the impact of national measures rather than the type seemed sensible.

who said this in which case?

A

Advocate General Jacobs in Leclerc-Siplec

47
Q

discussion about the scope of the concept of selling arrangements became important again in a series of cases on restrictions on use. The Member States – for obvious reasons – argued that restrictions on use should be classified as selling arrangements.
Micklesson and Ross
case?

A

, where the national regulations for the designation of navigable waters and waterways have the effect of preventing users of personal watercraft from using them for the specific and inherent purposes such regulations have the effect of hindering the access to the domestic market in question

48
Q

, where the national regulations for the designation of navigable waters and waterways have the effect of preventing users of personal watercraft from using them for the specific and inherent purposes such regulations have the effect of hindering the access to the domestic market in question
which case

A

Micklesson and Ross

49
Q

What was the outcome rule from Micklesson and Ross?

A

rules that prevent or greatly restrict the use of a product make it more difficult for this product to get access to the market and, as such, constitute an MEE

in theory, creating an independent test for restrictions on use

50
Q

The Court has developed 4 different tests to identify a restriction of Art 34 TFEU depending on the category of national measure: what are they?

A

product requirements are always an MEE

Selling arrangements have to be assessed under Keck provisios

Restrictions on use have to prevent or greatly restrict the use of a product (market access) to constitute an MEE

All other national rules are assessed under Dassonville

51
Q

Mandatory requirements are an additional category of justifications created by the Court of Justice in Cassis de Dijon. Why is this?

A

because the derogations in Article 36 TFEU are exhaustive.
therefore the Court felt that it was necessary to reflect social and technological developments in the type of justifications that were available to Member States.

52
Q

how can a. Distinctly applicable measures – or directly discriminatory measures be justified?

A

can only be justified on the basis of Treaty derogations.

53
Q

what are the most important mandatory requirements? (3)

A

consumer protection and environmental protection

54
Q

what happened in the case of Cassis Di Dijon

A

Coudnt be sold because the spirit drink Cassis Dikon didn’t flufil the requirements of alcohol which had to be around 32% not 20%. German government claimed that this minimum alchol content aims to protect consumers from goods with lac of quality. HOWEVER CJEU concluded that this argument is not good enough as there is no proof that the quality of this goods decrease

55
Q

: the protection of fundamental rights (or human rights) constitutes an independent source of justifications covered by the concept of public policy in Article 36 TFEU
what does this mean?

A

Member States have to respect fundamental rights when they restrict free movement.

56
Q

What article states that The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties
(harmonisation)

A

Art 26 TFEU

57
Q

Article 26 TFEU (harmonisation) states what?

A

that The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties

58
Q

What does Art 114 TFEU state?

A

that The EP and the Council, shall, acting in accordance with the ordinary legislative procedure , adopt measures for the approximation of the provisions laid down by law, regulation or administrative action which have as their object the establishment and functioning of the internal market

59
Q

What case goes with Art 114 TFEU?

A

Tobacco Advertising

A measure adopted on the basis of Art 114: a treaty must genuinally have as its object the improvement of the conditions for the establishment and functioning of the internal market

60
Q

What was the case of Tobacco advertising about in relation to Art 114 TFEU

A

a measure adopted on the basis of Art 114: a treaty must genuinally have as its object the improvement of the conditions for the establishment and functioning of the internal market

61
Q

What is Article 35

A

quantitative restrictions on exports, and all measures having equivalent effects shall be prohibited between MS

**A-EU Constitutional (10 decks)

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