Free Movement of Goods 1: Articles 28-30 and 101 TFEU

Question 1

Commission v Italy (Italian Art)

Answer 1

Defines goods as: ‘products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions’.

Question 2

Van Gend en Loos

Answer 2

Article 30 has direct effect.

Question 3

Commission v Italy (Statistical Levy)

Answer 3

A CEE is:

• Any pecuniary charge
• Imposed unilaterally on domestic and imported goods
• By reason of them crossing a frontier
• Which is not a customs duty in the strict sense

Question 4

Sociaal Fonds voor de Diamantarbeiders v Chougol Diamond Co

Answer 4

A charge can still be a CEE even if it is not protectionist.

Question 5

Commission v Germany

Answer 5

A charge will not fall within Art 30 where:

• It relates to internal taxes
• It constituted payment for a service rendered
• It attaches to inspections required by EU law

Question 6

Lutticke

Answer 6

Art 30:
CEEs and Internal taxation are mutually exclusive.

Art 110:
Art 110 has direct effect

Question 7

Bresciani

Answer 7

For a charge to constitute payment for services rendered, it must specifically benefit the trader.

Question 8

Commission v Belgium (Customs Warehouses)

Answer 8

For a charge to constitute payment for services rendered, the service must be provided at the request of the importer.

Question 9

Commission v Germany (Animal Inspections)

Answer 9

A charge imposed to cover the costs of an inspection is not a CEE where the inspection is required by EU law to promote free movement of goods. Four requirements for this:

1. Charge must not exceed actual costs of inspections
2. Inspections must be obligatory and uniform for all the relevant products in the Union.
3. The inspections must be prescribed by EU law in the general interest of the Union.
4. The inspections must promote the free movement of goods, in particular by neutralising obstacles that could have arisen from unilateral inspection measures.

Question 10

Commission v Netherlands

Answer 10

A charge for inspections carried out as a result of rules imposed by international treaties is not a CEE.

Question 11

Commission v France (Reprographic Machinery)

Answer 11

A tax regulated by Article 110 is one which: relates to a system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products even where domestic production of the goods is negligible or non-existent.

Question 12

Dansk Denkavit

Answer 12

An example of an internal tax. Art 30 covers ‘any charge levied on the occasion or by reason of importation specifically affecting an imported product to the exclusion of a similar domestic product’.

Question 13

Rewe-Zentrale

Answer 13

Sets out the test for whether goods are similar:

• Similar characteristics
• Meet the same needs from PoV of customers

Question 14

Commission v France (Spirits)

Answer 14

Similarity:
Similarity between products is determined on the basis of similar and comparable use, not whether they are strictly identical in nature.

Art 101(2):
Art 101(2) applies to goods that ‘without being similar within the meaning of the first paragraph, are nonetheless in competition, even partial, indirect or potential, with certain products of the importing country’.
Competition is determined by an economic analysis based on substitutability.

Question 15

Commission v Denmark

Answer 15

Characteristics are determined objectively, needs met from PoV of customers is determined subjectively.

Question 16

John Walker & Sons v Ministeriet for Skatter og Algifter

Answer 16

Characteristics are determined objectively, needs met from PoV of customers is determined subjectively.

Question 17

Commission v Italy (Regenerated Oil)

Answer 17

Direct discrimination cannot be justified.

Question 18

Humblot

Answer 18

Example of indirect discrimination in a tiered tax system.

Question 19

Commission v Greece

Answer 19

Example of a lawful tiered tax system which does not discriminate indirectly.
Social policy can be used to justify indirect discrimination.

Question 20

Chemial Farmaceutici

Answer 20

Indirectly discriminatory taxation can be objectively justified if:

• Based on objective criteria
• Pursues economic policy objectives compatible with EU law
• Detailed rules avoid any form of discrimination.

Question 21

Commission v UK (Wine and Beer)

Answer 21

Degree of substitution should not be restricted to the consumer habits of one Member State or Region. The tax policy of the state must not crystallise consumer habits to the advantage of national industries.

Question 22

Commission v Belgium

Answer 22

The actual effect of differing tax rates on products in competition must be considered.