EU - Free Movement of Goods - LGS 9

Question 1

Art 3(3) and Art 26(2)

Answer 1

Prohibit Tarriff and Non-Tarriff Barriers.

Question 2

What are tarrif barriers?

Answer 2

Duty charges or others imposed at the border

Internal tax that discriminates against imports.

Question 3

What are non Tariff reastrictions / quantitative restrictions

Answer 3

Quotas or embargos on trade movement.

Question 4

Commission v Uk

Answer 4

UK could not require ll cars in UK had Dip-dim headlights

Question 5

Tariff Barriers

Statutory Authority

Answer 5

Arts 28-30 TFEU duties and charges having equivalent effecct; or

Art. 110 Discriminatory provisions of internal taxation regimes

Question 6

Art 29 TFEU

Answer 6

Once a product is imported to the EU and CCT - Common Customs Tarrif is paid, duct is then in free circulation.

Question 7

Art 30 TFEU

Answer 7

Customs duties on imports and and exports and charges having equivalent effect shall be rohibited between member states.

Question 8

Authority for Art 30

Answer 8

Ven Gend En Loos - Established vertical direct effect .

Question 9

Definition of CHEE

Answer 9

Commission v Italy

Any charge on any goods crossing a frontier which is not a customs duty in the strict sense

Question 10

Sociaal Fonds Voor de Diamantarbeiders

Answer 10

Belgian Diamonds levy- established that the purpose of the charge is irrelevant., only its effect.

Question 11

San Giorgio

Answer 11

No derogations available for Art 30, only for non tariff barriers.

Question 12

Commission v Belgium

Answer 12

Charges for services at the border are heavily scrutinised, service must be direct and specific benefit to trader.

Question 13

Commission v Italy

Answer 13

Purpose behid statistica data levy did not provide direct or proportionate benefit therefore a CHEE

Question 14

Art 110 TFEU

Answer 14

No member state shall impose internal taxation in excess of that on similar domestic products or provide indirect protection to other products.

Question 15

Lutticke (Luticka) (2)

Answer 15

Art 110 has vertical direct effect.

Art 30 and art 110 are mutually exclusive.

Question 16

Tax regimes do not have to be identical

Answer 16

art 113 - mimum standards of duty and VAT set, but taxation policy must be consented too by states.

Question 17

Art 110 para 1

Art 110 para 2

Answer 17

Prohibits discriminatory taxaton on similar products

Prohibits discrimination on competing products (interchageable ones) providing indirect protection of domestic goods.

Question 18

Similar products?

What criteria?

Answer 18

John Walker -

Objective caracteristics, whether they are interchangeable.

Question 19

Commission v Denmark

Answer 19

Wines from grapes and fruit alike were similar products

Question 20

art 110(1) prohibits Direct and indirect discrimination what authorities for each?

Answer 20

Direct: Outokumpu Oy - domestic electricity cheaper than imported.

Indirect: Humblot (Humblow) seemingly objective criteria was used to support domestic car manufacturers.

Question 21

Exception to art 110 prohibitions

Answer 21

Objective Justification, not giving protection to domestic product.

Commission V Greece - road tax sa objectively justifiable for environmental policy, and proportionate and a proportionate measure.

Question 22

Commission v France (Sweet Wines)

Answer 22

questionable - supporting wine production from poor areas was objectively justifiable measure despite favouring domestic production.

Question 23

Competing products

Answer 23

Commission v UK wine and beer could be competing products, therefore UK’s duty which favoured domestic beer had to be equalised.

However - Commission v Belgium - production cost difference of Wine and Beer meant that equalisation of VAT meant the products would not allow them to compete any way, therefore was not protectionist.

Commission v Sweden - similar - no difference between wine and beer price before or after taxation, despite wine having higher rate.

Question 24

Quantative Restrictions/ MEQRs and CHEEs

Answer 24

art 34 and 110 mutually exclusive

Art 34 has vertical but no horizontal direct effect . N.b. can include a semi public body excerscising public powers.

Question 25

semi public body subject to art 34

Answer 25

Apple and Pears case: quango promoting national fruit.

Commission v Ireland: the buy irish campaign

French Strawberries Case: State may be liable if it fails to control activities of individuals.

Question 26

Quantitative restrictions

Answer 26

Geddo - partial or total restraint on goods in transit.

Newcastle Disease: complete ban on french poultry following disease outbreak was a breach.

Rosengren & Others - satisfied art 36 derogation.

Question 27

MEQR

Answer 27

Dassonville - requirement that importers producee certificate of origin was a MEQR in breach of art 34 as hindered trade.

French Farmers - french failure stop farmers roadblocks against strawberry imports amounted to an MEQR

Question 28

Distinctly or Indisticly applicable MEQR?

Answer 28

Distinctly appliccable: explicitily treat goods differently according to origin.

Indistinctly applicable: apply equally to all products, regardless of origin ut have restrictive effect on interstate trade such as those banning certain ingredients or characteristics common to foreign goods.

Question 29

Distinctly applicable case

(3) points

Answer 29

Buy irish campaign - promoted Irish products.

Apple and Pears Case: promoted domestic fruit varieties such as Cox, though it is possible to promote a variety such as granny smith on the basis of crunchineess if no effect on trade is felt.

Rewe-Zentralfinanz: Inspection of goods at border is permissable ifobjectively justifiable

Question 30

Indistinctly Applicable Rules

Answer 30

Cassis de Dijon: created dual burden

and Walter v Rowe Margerine

Question 31

Sunday trading cases

Answer 31

B & Q - difficulty in applying ruling, restriction of sunday trading was a justifiable measure to protect socio - economic characteristics.

Question 32

Keck - Selling Arrangements

(3) points

Answer 32

the CJ re-interpreted Dassonville, finding that as long as a selling arrangement such as restricted sunday trading did not give direct or indirect protection to domestic products it would not breach art 34.

Semararo - followed Keck Re sunday trading rules.

Also Man case - Authority for selling arrangement.

Question 33

Derogations

Reasons for permitted derogation and authority.

Exhasitive or non exhaustive list of reasons?

Answer 33

Art 36 provides MS may derogate from Art 34 or 35 for non trade related reasons including prohibitions based on the protection of public health, morality, security etc.

Exhaustive list.

Question 34

Authorities for derogations:

Franzén, Rosengren

Scwarz

Rule of Reason

Answer 34

Swedish monopoly on alcahol distribution was permissable on pubic health grounds. Rosengren found it to be a disproportionate measure however.

Austrian Legislation prohibiting sale of unwrapped gum was justified on public health grounds and proportionate.

Established in cassis. Rather than claim a derogation , German government argued Art 34 didnt apply.

Question 35

Commission v Germany (German Purity laws)

Walter Rau (Walter Rowe)

Commission v Italy

Answer 35

Strict regulation of beer ingredients was unnescesssary and disproportionate.

Requirement for margerine to be in cubic packages to distinguish it from butter was in breach.

Italian Legislation prohibiting mopeds from towing trailors was justifiable on grounds of road safety.

Question 36

Principle of Mutual Recognition

Answer 36

goods lawfully distributed in one MS should be good enough to be distributed throughout the EU unlless one of the Cassis mandatory requirements or derogations under art 36 apply.

Question 37

Remedies

1. Art 34 Directly effective (vertical only)
2. When importer is sued?
3. Can have offending legislation disapplied art 258 Reference procedure.
4. Restitution of Charges or Taxes paid
5. Fracovich Damages.
6. Complain to the Commission

Answer 37

1. Any state in breach maybe liable for damages if factortame 3 / Braserie du pecher criteria satisified.
2. Provision can be used as a defence to proceedings in national court.
3. Factortame 2.
4. Humblot
5. Against the state?
6. Not very useful

Question 38

Answer Structure

1.

2.

4.

5.

6.

Answer 38

Does the measure constitute tariff or non tarrif barrier to trade?

has hter been any harmonisation in the releant area?

If tariff barrier consider Art. 30 or Art.110

If non tariff consider art 34 or 35(outright restrictions) - distinguish between disitinctly and indisticly applicable measures

Can the state raise defences?

remedies for affected parties?

Question 39

Difference between : Art 110 para 1 and 2 ?

Art 34 and Art 35

Derogations under art 36 and rule of reason

Answer 39

Para 1 Prohibits discriminatory tarrifs / taxation on similar products, Para 2 prohibts the same on competing products.

Art 34 Prohibits mesures having equivalent effect to a quantitative restriction, art 35 prohibits direct quantitative restrictions

Derogations are contained in an EXHAUSTIVE list, rule of reason non exhaustive and ust apply to indistinctly applicable meassures only, on the basis of objective justification an proportinality.

Question 40

Distinctly / Indistinctly applicable Def.

Answer 40

Distnctly applicable measures apply to goods explicitly by their origin.

Indisitinclty applicable apply to all goods but may have a restrictive effect on trade.