Free movement of goods Flashcards
Legal basis
Art 28-37
TFEU
Customs duties
“‘Any pecuniary charge, however small and whatever its designation and mode of application, which is imposed on goods by reason of the fact that they cross a frontier”
= Case 24/68 Commission v Italy (Statistical Levy), [1969] ECR 193, para. 7
CEE charges having an equivalent effect
“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, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect “
=> Diamantarbeiders judgment
Quantitative restrictions (quotas)
QRs
“measures which amount to a total or partial restraint of, according to the
circumstances, imports, exports and goods in transit”
=Case 2/73 Geddo v Ente Nazionale Risi [1973] ECR 865
Measures having equivalent effect to QRs
MEQRs
- Commission Directive 70/50/EEC of 22 December 1969
Article 2(3) + Art 3
What’s prohibited ?
IN CUSTOMS UNION
- Prohibition of custom duties on imports and exports between MS
Art 28(1) TFEU
-Charges having equivalent effect between MS CEE
Art 28(1) + 30 TFEU
=> fiscal / financial barriers at the border
-Customs tariff
Art 28(1) + 31 TFEU
IN INTERNAL MARKET
- Prohibition of discriminatory taxation Art 110 TFEU
=> direct or indirect taxes
=> taxation of similar products Art 110(1) TFEU
=> taxation of dissimilar yet in competition products Art 110(2) TFEU
-Quantitative restrictions (quotas) on imports and exports between MS
Art 34 + 35 TFEU
-Measures with equivalent effect to ERs between MS (MEQRS)
Art 34 + 35 TFEU
Exceptions Art 36 TFEU
- public morality
- public policy
- public security
- protection of health and life on humans, animals or plants
- protection of national treasures possessing artistic, historic or archaeological value
- protection of industrial and commercial property
!! cannot constitute an arbitrary discrimination/ disguised restriction on trade!!
- burden of proof MS trying to rely on provision
- test of proportionality
Case 26-62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration
CEE
Direct effect+ prohibition of custom duties:
clear and unconditional prohibition
Case 8-74 Procureur du Roi v Benoît and Gustave Dassonville
MEQRs
“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 measures having an effect equivalent to quantitative restrictions.”
” [T]he requirement by a Member State of a certificate of authenticity which is less easily obtainable by importers of an authentic product which has been put into free circulation in a regular manner in another Member State than by importers of the same product coming directly from the country of origin constitutes a measure having an effect equivalent to a quantitative restriction as prohibited by the Treaty.”
Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für
Branntwein (Cassis de Dijon)
Mutual recognition : recognizing products from other MS (lawfully produced and marketed in another MS should not be subject to a legal prohibition)
=>Art 34 TFEU
Rule of reason : Obstacles to movement within the Community 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 .
Case 249/81 Commission of the European Communities v Ireland
(Buy Irish)
Art 34 TFEU
Case C-265/95 Commission of the European Communities v French Republic (Spanish strawberries)
Art 34 TFEU + Art 5 TEU
Abstaining from taking action / fail to adopt measures to prevent obstacles to free movement gf goods on its territory aimed at products from another MS = same as a positive act
=> MS need to take all necessary and appropriate measures to ensure fundamental freedom respected on its territory
Case 178/84 Commission v Germany (Beer)
Art 34 + 36 TFEU
Obstacles to free movement within the community OK IF
- applicable to domestic and imported products without distinction
- necessary in order to satisfy mandatory requirements relating to consumer protection
- proportionate to the aim (should choose the means which least restricts free movement)
Joined cases C-267/91 and C-268/91 Criminal proceedings against
Bernard Keck and Daniel Mithouard
Distinction between product requirements and certain selling arrangements CSA
=> Exception to Dassonville formula :
§16 : so long as they affect in the same manner in law and in fact the marketing of domestic products and of those from other MS
Case 170/78 Commission v UK (Wine & Beer)
Art 110 TFEU
