EU law - Week 3A Flashcards
In which article of the TFEU is the internal market described? What is the EU’s strategy for achieving the internal market?
Art 26 (2) TFEU
- Negative integration (prohibiting MS from certain actions, these prohibitions usually have a direct effect)
- Free Movement
- Competition law (Protocol No 27) Considering that the internal market included a system ensuring that competition is not distorted
- Positive integration
- Harmonisation of national laws (art 114 TFEU)
Financial barriers: Where can we find the definition of CEE?
- Definition CEE= Outokompu= ‘any pecuniary charge on goods circulating within the EU by virtue of the fact they cross a national border’ (if some money is imposed on goods because they cross the border= prohibited CEE)
- Purpose and amount CEE irrelevant
- For example charges for inspection of import
What is NOT a CEE?
- The charge constitutes payment for a service actually rendered by the MS in an amount proportionate to that service
- the charge relates to a general system of internal duties/taxes applied systematically to domestic products and imported and exported products alike –> Art. 110 TFEU relevant
- The charge is levied on account of inspections carried out for the purpose of fulfilling obligations imposed by EU
- Schuetze (page 216): 1 + 3 = ‘implied exceptions’ to Article 30 TFEU.
List the types of financial barriers (explain related cases)
Prohibition of CEE (Outokompu and Art 30)
Prohibition of CD (Art 30)
Prohibition of discriminatory tax measure (Outokompu, 110 (1))- (direct or indirect)
Prohibition of Protective tax measure (Beer and Wine 110 (2))- more beer than wine produced in the host country
Briefly describe two type of non-financial barriers (more about the import)
- Prohibition of Quantitative import restrictions and MEE’s (measures with equivalent effect) art 34 (more important)
- Prohibition of Quantitative export restriction and MEE’s art 35
What is the broad standard of MEE? Which case?
Cassis de Dyon
France 15-20% = liqueur
Germany- 25%
Germany had to accept the lower standards of France and thus accept it to the fruit liqueur market (this is the broad interpretation of MEE, states with high standards should accept the lower standards of MS)
Why are selling arrangements no longer fall under the scope of 34? What are the exceptions? Do product requirements still do?
- Companies invoked Art. 34 TFEU more and more often, e.g. *shops are closed on Sundays, *no advertisements for tobacco/alcohol, * no resale of goods at a loss
- Reaction Court in 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 or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, so long as those provisions [1] apply to all relevant traders operating within the national territory and [2] so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States” (para. 16) (you can’t resell at a loss)
- Product requirements - still fall under scope 34 TFEU
- Selling arrangements - no longer under scope of 34 TFEU
- But these national measures on selling arrangements:
- must apply to all relevant traders
- must affect in the same manner, in law and in fact, all products
Does Keck regime apply to restriction on use of Goods?
- Italian Trailers- Court develops the Market Access Test
- “37. Consequently, measures adopted by a Member State the object or effect of which is to treat products coming from other Member States less favourably [1. discriminatory measures] are to be regarded as measures having equivalent effect to quantitative restrictions on imports within the meaning of Article [34 TFEU] , as are the measures referred to in paragraph 35 of the present judgment [= 2. product requirements]. Any other measure which hinders access of products originating in other Member States to the market [=3.] of a Member State is also covered by that concept”.
- Next application to the Italian measure at stake
- ‘Ordinary’ Trailers: 52. With regard to trailers not specially designed for motorcycles but intended to be towed by automobiles or other types of vehicle, the Italian prohibition does not hinder access to the market for that type of trailer.
- ‘Special’ trailers 55. In the case of trailers specially designed for motorcycles, the possibilities for their use other than with motorcycles are very limited 56. A prohibition on the use of a product in the territory of a Member State has a considerable influence on the behaviour of consumers, which, in its turn, affects the access of that product to the market of that Member State.
What are the justifications for financial barriers?
None. Remember Art 36 TFEU justifications do not apply to Art 30 TFEU, only to Art 34 & 35 TFEU
“Case law exceptions”(according to Schutze):
- Payment levied by member State as consideration for a specific service rendered by the MS to individual traders (rather than society or
economy as a whole) and in an amount proportional to the service - Statistical Levy case
- Levy imposed by MS to compensate itself for carrying out inspections required by the EU law: Bauhuis case
What are the Treaty justifications for non-financial barriers? And one additional one :)
Treaty article 36 TFEU
- Public morality (Henn and Darby)
- Public policy
- Public security
- Public health (health/life of humans, animals, and plants)
- National treasures
- Intellectual property
! Exhaustive list (so non-economic interest required + has to be proportional)
What are the case law justifications for non-financial barriers? And 2 additional ones
“Rule of reason”- Cassis de Dijon
-Cassis de Dijon (1979), para. 8:
- Obstacles to movement within the Community [EU] resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.
- Non-exhaustive list of other public interests → new exceptions may be accepted by the ECJ every day, e.g.:
- Schmidberger: protection of the right to demonstrate = freedom of expression, assembly (more generally: protection of fundamental rights)
- Reinheitsgebot: protection of the consumer (and also public health protection = 36 TFEU)
- Omega Spielhallen: protection of ‘human dignity’ justifies restrictions to free movement
- Walloon Waste: environmental protection
+ Proportionality + Extra condition: measure must be ‘indistinctly applicable’ (no discrimination)
What is the structure for understanding the application of the treaty provisions
in case law involving claims of breach by the State?
- What is the nature/classification of the measure allegedly breaching internal mkt law
(e.g. is it a financial or non-financial barrier? If so, which?) - Is it prohibited by a treaty provision; if so, which?
OR is it an exception falling completely outside the treaty prohibition (and thus legal)? - If it falls within the prohibition, is there any public interest justification for the measure (that can still render it legal)?
E5. ven if justified, was the measure proportionate to its aim?
What was the reason why the differentiated excise-system devised in Finland to stimulate the green production of electricity, at issue in the Outokumpu case (C- 213/96), did not survive the Court of Justice’s scrutiny?
- Outokumpu direct discrimination that’s why it did not survive the courts scrutiny
- ECJ: Different, higher tax on foreign green energy (8%) compared with local green (6%) is illegal under Art 110 TFEU prohibiting direct discrimination.
What Types of Measures Can be MEEQRs?
- Product requirements YES
Rules relating to designation/labelling, form, size, weight,
composition [i.e content], presentation, packaging, etc. E.g.:
□ No additives in beer (i.e content of beer)
□ No marketing/labelling of a product containing additives as “beer”
□ No sale of cigarettes without “smoking kills” labelling (see para 15 Keck case) - Selling arrangements (see para 16 Keck case) NO
□ Rules banning selling below real price to attract customers
(Keck case, para 2)
□ Rule banning sale on Sundays
(Sunday trading cases, p. 225 Schutze) - Consumer use requirements (that restrict market access) YES
□ No trailers behind mopeds!
Explain the difference between the public interest justifications of Art 36 TFEU
and the public interest justifications referred to as “Mandatory Requirements”
(“Rule of Reason”) justifications
- Art 36 is
- a treaty list
- is closed/exhaustive (does not extend beyond what is specifically laid down in that Article)
- must be interpreted strictly and importantly
- applies to both discriminatory (“distinctly applicable”) and non-discriminatory (“indistinctly applicable”) national measures (Discussed on p. 231-232 Schutze).
- Non-discriminatory (“indistinctly applicable”) are measures that apply without distinction/discrimination to all relevant traders and to domestic goods and imports from other member States alike.
- Whereas the mandatory requirements are
- case law exceptions
- are open-ended (not exhaustive – ECJ never said they could not extend beyond what is stated in the Cassis case and footnote 104 Schutze as well as lecture slides lists the extensions over the years, which extend even to “human dignity”
- apply only to non-discriminatory (“indistinctly applicable”) measures.
Most important similarities: both treaty and mandatory requirements/”rule of reason” justifications serve non-economic public interests. Both have to satisfy requirement of proportionality
