Free movement of goods

Question 1

What is de Pre-test?

Answer 1

1. Is there a cross border element? / EU dimension?
2. is it a measure of a Member State or attributable to a Member State? (Treaty provisions are addressed to Member States)
3. Is there harmonisation in this area? (Only if there is no harmonisation, are the Treaty provisions applicable)
4. Which fundamental freedom applies in the present case? (identifying the applicable freedom)

Question 2

What is a purely internal situation?

Answer 2

If there is only a purely internal situation in a Member State (no crossing to another Member State or no effect on the free movement goods/persons/services or capital between Member States), the parties cannot appeal to the European rights of the four freedoms. In a purely internal situation, in principle, the national law of the Member State is applicable.

Question 3

What is reverse discrimination?

Answer 3

Reverse discrimination entails that discrimination is applied to the citizens of a Member State and not to the foreigners entering that Member State; this is also known as a U-turn construction. Own citizens are disproportionately affected by the rule in comparison to the citizens of another Member State. Reverse discrimination is not forbidden because the application of EU law requires a cross-border element to be present. The prohibition of discrimination, Article 18 TFEU, is thus not applicable. This problem is only applicable within the Member States themselves and will need to be solved within national law of those Member States.

Question 4

What is a dual burden?

Answer 4

With the prohibition of discrimination, dual burdens are prohibited. A dual burden is a burden on an individual not only stemming from the home Member State but also from the host Member State. An example of a dual burden is a person selling goods in one Member State according to the measures of that Member State, but also having to adopt measures of another Member State it is exporting goods to. It adopts measures to be able to sell the goods in that Member State. If the measure of one Member State is not according to the EU law and causes a burden on the national of another Member State, this is called a dual burden.

Question 5

What is mutual recognition?

Answer 5

Mutual recognition entails that products that comply with the rules of a Member State (= are legally marketed) must also be allowed to be legally marketed in another Member State; Member States should respect and recognize each other’s rules. If EU law is applicable, the States must recognize each other’s rules. For example, if a person has applied the rules of a Member State to the product it sells, the person must be able to sell those products in other Member States without having to change those products to comply with all of the rules of those other Member States.

Question 6

What is a CEE’s ?

Answer 6

Art treasure case: any charge which, by altering the price of an article exported, has the same restrictice effect on the free circulation of that article as a customs duty. Only the effect matters.

Question 7

What are the exeptions of art 30 TFEU?

Answer 7

Two implied exceptions:
1. Exception for financiel charge for services rendered. Statistical levy-case. Only if there is a specific service for individual traders. It is not seen as a levy, but payement for services.

2. General interest: Bauhuis The Netherlands-case. A cost recovery fee that is required under EU law in the general interest of the EU and does not exceed the actual costs.
3. Systematically applicability

Question 8

What is the definition of goods?

Answer 8

Art treasure case.

Question 9

When is art. 30 TFEU applicable?

Answer 9

Only of there is discriminatiory and/or protectionst charges.

Question 10

When is art. 110 TFEU appicable?

Answer 10

Paragraph 1: if there is a discrimination of similar foreign goods

Paragraph 2: applies to imported products that are in competition with domestic products

Question 11

How to determine if two goods are in competition?

Answer 11

Beer and Wine case: important element is whether one product can subtitute another.

Question 12

When is an objective differentiation possible according to art 110 TFEU?

Answer 12

Differentiation is permitted as long as this is done on objective grounds or objective criteria which are compatible with the objectives of the EU.

Question 13

Which steps do you follow to solve a fiscal barrier case study (art. 30 TFEU or 110 TFEU)

Answer 13

1. Is it a good? Art treasure-case
2. What kind of barrier is it? At border? art. 30 TFEU or interal art. 110 TFEU.
3. Does the charge apply exclusively to imported products?
   Yes: CEE’s (looking at implied exceptions from case-law)
   No: internal taxiation art. 110 TFEU? –> discrimination?
   Discrimination: prohibited by art. 110 TFEU
   No discrimination: e.g. because the differentiation is based on objective criteria and the objectives are compatible with EU Law: Outokumpu case-law: permitted

Question 14

What is an MEEQR’s as in art. 34 TFEU?

Answer 14

Dassonville formula as in Dassonville case.
All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as MEEQR’s

Question 15

What is the internal market?

Answer 15

Art. 26 TFEU: tends to cover all economic activities that can take place. And free movement whitin these.

Question 16

What is the principle of supremacy?

Answer 16

When a conflict arises between EU law and national law, EU law prevaills.

Question 17

What is the negative integration of the principle of supremacy?

Answer 17

Negative integration says that EU law doesn’t specify what is to be done instead. It says: you may not do this.

Question 18

What is the positive integration of the principle of supremacy?

Answer 18

Positive integration says that the national rule should be disapplied and what the MS should do instead.

Question 19

What are consequences of the internal market? and how is it solved?

Answer 19

1. Race to the bottom of standards that are necessary to keep societies together and to progress –> solve? common rules: harmonisation.
2. Private actors playing national state authorities off against each other –> solve? centralised market supervision. EU Competention law?
3. Harmful competition between states due to diverging national currencies –> solve? Currency Union with a Central Bank: EURO.

Question 20

What is a tarrief restriction?

Answer 20

When there is a discriminatory or protectionism tax

Question 21

What is an exception from an MEEQR as in art. 34 TFEU?

Answer 21

Keck-case: a selling arrangement is NOT a MEEQR if:
- it applies equally to all the traders operating in the market of the MS
- it affects in the same way in law and in fact the marketing of domestic and imported products
- it does not restrict the access of imported products in the market

Question 22

How can art. 34 or 35 TFEU be justified?

Answer 22

Art. 36 TFEU: express justification.

Case law: implied justification
(Cassis de Dijon-case).

Question 23

When can you qualify under the implied justification for art. 34 and 35 TFEU?

Answer 23

Proportionality test
1. the measure should lead to the objective pursued
2. The measure should be necessary to attain the objective pursued
3. The measure should be proportionate and not go further then what is in proportion.

Question 24

What is an quantitative restriction as in art. 35 TFEU?

Answer 24

A quantitative restriction is a measure restricting the import or export of a given product by amount or value.

Question 25

What is an MEEQR’s as in art. 35 TFEU?

Answer 25

A MEEQR includes all trading rules enacted by a Member State which are capable of hindering, directly or indirectly, actually or potentially, intra- community trade

Question 26

When is an MEEQR prohibitted as in art. 35 TFEU?

Answer 26

After Gysbrechts, under Article 35 TFEU, similarly to Article 34 TFEU, national measures that apply without distinction may also constitute MEEQR’s. It is no longer necessary to show that the measure provides a particular advantage for national production, as required by the Groenveld formula.

Question 27

How to deal with the effects of domestic regulation on market access?

Answer 27

By checking if there is a double burden: indistinctively applicable measure form a barrier to market acces if the imported products are penalised by being forced to undergo costly adjustments

Unless there are mandatory requirements in the general interest, the host State is not entiteled to impose its domesstic rules on imported products
( Cassis de Dijon case)

Question 28

What are the two categories of tarrif restrictions?

Answer 28

1. regulation of market access: customs / charges having equivalent effect (art. 30 TFEU). So at the border.
2. Domestic market regulation: once you have crossed the border. Tax discrimination / protectionism (art. 110 TFEU)

Question 29

What is an quantitative restriction in imports as in art. 34 TFEU?

Answer 29

When there is an restriction on the amount of goods that can cross the border

Question 30

What is an additional burden?

Answer 30

There is no double burden when the rules affecting the sales of a product in another MS are different: it is an additional burden for promoting and selling goods in another MS, which incurs as a consequence of expanding sales markets

Question 31

Which four elements does the Cassis de Djion case entail in order to be a implied justification for non-tarrief goods?

Answer 31

1. There is no relevant (harmonised) rule at EU level;
2. The national rule must apply to domestic and imported products without distinction;
3. The national rule must be applied for due to mandatory or imperative requirements/reasons recognised by Union law (an overriding public interest);
4. The national rule must be proportionate (three subtests of proportionality!) to the aim pursued by the measure; meaning that Member States should choose the means that least restricts the free movement of goods.