Free movement of goods Flashcards
What is a customs union?
- Form of economic integration of MS
- Liberalization of trade (Art 28 TFEU)
- uniform rules for goods coming from third countries (Arts. 31 and 207 TFEU)
How is a customs union established?
Via…
- prohibition of customs duties and charges of equivalent effect (Art. 30 TFEU)
- The prohibition of quantitative restrictions and measures of equivalent effect (Arts. 34, 35 and 36 TFEU)
- prohibition of discriminatory internal taxation (Art. 110 TFEU).
what are customs duties?
charges on goods because they cross a frontier between Member States
what is a “charge with equivalent effect”? (Customer duties)
- any pecuniary charge which is imposed unilaterally on domestic or foreign goods because they cross a frontier
- and which is not a customs duty in the strict sense.
what is the consequence of a MS breaching the prohibition of customs duties and charges of equivalent effect?
- MS must eliminate the measure
- The persons concerned have a right to repayment
Scheme for Free Movement of goods
- Direct effect of Art 34 TFEU?
- Cross border reference?
- Is Art 34 applicable?
- Are we dealing with products originated in a MS?
-
Breach of Art 34?
- Quantitative Restriction?
- Measure having Equivalent effect?
- Product bound measure / selling arrangement?
- Product bound measure?
- Distinctly applicable
- Indistinctly applicable?
- Any other measure that hinders market access?
- Measure relation to selling arrangement?
- Applicable to all relevant traders operating within the national territory?
- It affects in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States?
- Justification under Art. 36 TFEU or mandatory requirements?
- Legitimate purpose?
- Appropriate?
- Necessary?
What is the Spaak Report?
- suggests the merger of separated markets into a common market.
- common market: area without internal frontiers.
- See Art. 114 TFEU
Scheme for Discriminatory internal taxation Art. 110
- Aim: avoid discriminatory internal taxes that discourage import
- Similar domestic product? (Two conditions)
- Similarity?
- same customer need and characteristic
- Discrimination?
- Direct?
- Indirect?
- Competing products (Two conditions)
- products are in competition
- tax protects domestic products
- Similarity?
Case Law “Dasonville”
Is a Belgian law requiring a “certificate of origin” for imported goods, such as Scottish Whisky imported from France to Belgium, constituting a measure equivalent to a quantitative restriction on intra-Community trade?
- Creates a measure equivalent to quantitative restriction
- formalities required by MS to prove the origin of a product may only be accessible to direct importers, thereby creating obstacles to trade.
- Any measures taken must be applied uniformly and should not favor domestic products over imported ones.
Cassis de Dijon
German Retailer is denied to import French liqueur (15 % alc.) to Germany because of too low alc. content. Is the requirement of a minimum alcohol content conflicting with the prohibition on all measures having an effect equivalent to quantitative restrictions.
- It is a a measure with equivalent effect to product bound restriction.
- it is a unilateral requirement that hinders trade. Art 30.
Keck
Is French legislation prohibiting the resale of products at a loss constituting a measure equivalent to a quantitative restriction on imports?
- National legislation imposing a general prohibition on resale at a loss is not designed to regulate trade in goods between MS.
- It’s no measure with equivalent effect to quantitave restriction, if provisions apply to all traders operating within the national territory and if they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other MS.” -> selling arrangement
Practical case cocoa
- Spain demands chocolate with vegetable fat to be named chocolate substitute
- is that a measure contrary to free movement of establishment?
Direct Effect of Article 34 TFEU: Yes, it applies.
Cross-border Reference: Yes, there’s a cross-border element.
Applicability of Article 34: Yes, it’s applicable.
Origin of Goods: The goods originate in a Member State.
Breach of Article 34: Yes, there’s a measure having an equivalent effect to a quantitative restriction.
Product-bound Measure: Yes, it’s a product-bound measure.
Distinctly Applicable? Indistinctly Applicable?: It’s distinctly applicable.
Hinders Market Access?: Yes, it hinders market access due to the prohibition on using certain sales names.
Justification: No, there’s no justification provided.
Consumer Protection Argument: While it’s legitimate for a Member State to inform consumers accurately, the obligation to change the sales name is not necessary for consumer protection. Adding a neutral statement about the presence of certain fats would suffice to inform consumers accurately without hindering trade.
In simple terms, the Spanish legislation requiring a change in the sales name of chocolate products containing vegetable fats other than cocoa butter is considered a barrier to trade between Member States because it makes marketing these products more difficult and could negatively impact consumer perception. While consumer protection is important, the requirement to change the sales name is deemed unnecessary and disproportionate for achieving this goal.
