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EU Law > Free Movement of Goods > Flashcards

Free Movement of Goods Flashcards

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1
Q

Provision Founding the Customs Union

A

Art 28 TFEU

Prohibits fiscal and non fiscal restrictions on trade in goods

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2
Q

Commission v Italy (Art Treasures) (The Customs Union)

A

Definition of ‘goods’ for the purpose of art 28 TFEU

Products which can be valued in money and which are capable of forming the subject of commercial transactions

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3
Q

Fiscal measures: Provision preventing customs duties and charges

A

Art 30 TFEU

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4
Q

Dilexport

A

Prohibiton of fiscal measures: Customs Duties and Charges

MSs who breach this provision must repay the charges subject to the standard Union rules on remedies

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5
Q

Commission v Italy (Art Treasures) (Prohibition of fiscal measures)

A

Art 30: Prohibition of customs, duties and charges

Italy introduced tax on art treasures to protect their artistic and archaeological heritage
CJEU implemented an effects-based approach:
The effect of this measure was deter the export of goods, and so therefore it was unlawful
There are no exceptions to Art 30- if Italy had imposed a quantitive measure they may have been able to justify it

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6
Q

Fiscal measures: Article prohibiting discriminatory internal taxation

A

Art 110 TFEU

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7
Q

Hansen

A

Fiscal measures: prohibition of discriminatory internal taxation

Internal taxation of similar products: Direct discrimination

Tax relief was only available to domestic businesses producing spirits
Held to be unlawful unless relief was given to spirits of a similar description coming from elsewhere in the EU

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8
Q

Humblot

A

Fiscal measures: prohibition of discriminatory internal taxation

Internal taxation of similar products: Indirect discrimination

Car tax introduced in France depending on power rating of the car
No french car was rated to fall within the higher charge
Held to be indirectly discriminatory as it encouraged people to buy french over foreign cars

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9
Q

Commission v Greece (Car Tax)

A

Fiscal measures: prohibition of discriminatory internal taxation

Internal taxation of similar products: justification of indirect discrimination

Similar car tax to France, but was introduced as an environmental protection measure
This was held not to be discriminatory or protectionist as the national rule pursued objective which were themselves compatible with the treaties

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10
Q

Commission v France (tax on spirits)

A

Fiscal Measures: prohibition of discriminatory internal taxation

CJEU’s test to find Indirect protection of non-similar products

  1. Are the products in competition?
  2. If yes, is there any protective effect on other domestic products?

Therefore: Beer/wine/spirits were not similar products as they had different markets, but did have the same comparable use, so were in competition

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11
Q

Prohibition of non-fiscal measures: Key treaty provisions

A 
Art 34 TFEU: Imports
Art 35 TFEU: Exports
Parallel to 34
Art 36 TFEU: Justifications
Provides an exhaustive list of exceptions to Art 34 and 35
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12
Q

Prohibition of non-fiscal measures: 4 key questions

A
  1. Is the restriction/ measure within the scope of arts 34-36 TFEU?
  2. Is the measure a quantitative restriction? (QR)
  3. Is it a measure having equivalent effect to a quantitative restriction? (MEE)
  4. If the measure is a QR or MEE, could it be justified by an MS?
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13
Q

Belgian Waste

A

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Cases illustrating broad definition of ‘goods’

Waste is goods

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14
Q

Bluhme (Q1)

A

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Cases illustrating broad definition of ‘goods’

Bees were found to be goods- they produce honey which is traded between MSs, so have monetary value

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15
Q

Commission v Ireland (Buy Irish)

A

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Definition of ‘Member states’

Broad view- includes unions under the control of the state:
Private body set up by the Irish government to promote irish goods was held to be part of the MS

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16
Q

Schmidberger (Fiscal Measures Q1)

A

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Acts of private parties

Can come under Arts 34-36 where state has omitted to protect the interests of traders from disruptive action by private bodies

Protest on Austrian motorway blocked key route for moving goods between MSs
However was justified by freedom of expression ORPI

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17
Q

Reverse Discrimination

A

Prohibition of non-fiscal measures: Q1 Is the restriction/ measure within the scope of arts 34-36 TFEU?

Measures that wholly discriminate against an MSs own producers

Will not be unlawful as there must be a cross border element for the treaty provisions to be activated

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18
Q

Geddo

A

Prohibition of non-fiscal measures: Q2 Is the measure a QR?

QRs are ‘measures which amount to a total or partial restraint of, according to the circumstances imports, exports or goods in transit
e.g quotas on imports, ban on exports

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19
Q

Properties of QRs

A

Prohibition of non-fiscal measures: Q2 Is the measure a QR?

Are inherently discriminatory and so therefore automatically in violation of art 34 and 35 TFEU
CAN be justified on one of the grounds in art 36

20
Q

Dassonville

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

MEE: ‘all trading rules enacted by MSs which are capable of hindering, directly or indirectly, actually or potentially intra-state trade’
Motive of MS is irrelevant- effects based
No actual evidence needed that there has been a restriction of market access

21
Q

Distinctly Applicable MEEs

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Create an unequal, discriminatory burden on imported products
Examples:
Promoting domestic products
Marks of origin
Price fixing
Additional requirements for imports/exports

22
Q

Indistinctly Applicable MEEs

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Place a dual burden on both imported and domestic products, but places a greater burden on imports
Producers in other states will then have to comply with both home, and other MSs rules

23
Q

Cassis de Dijon (Q3)

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?
Indistinctly applicable MEEs

Clarified that art 34 can apply to national rules that make no distinction between domestically produced and imported goods
Rationale: MS measures should be limited by reasonableness, and should not hinder trade. Observance of principle of mutual recognition.

24
Q

Groenveld

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?
Indistinctly applicable MEEs

Do not arise in the case of export restrictions- must always show discrimination here

25
Q

Equal Burden Rules

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Impose equal burden on both imported and domestic products
Some of these rules do not interfere with market access, and so therefore are not MEEs

26
Q

Keck

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?
Test for if equal burden rules are MEEs

SELLING ARRANGEMENTS may be found to be OUTIDE the scope of Art 34 if:

  1. Provisions apply to all traders
  2. They apply in the same way in law and fact to both sets of traders

Note: CJEU distinguished between selling arrangements and product rules/conditions (on a case by case basis)
Restrictions amounting to product rules and conditions cannot be justified by Keck

27
Q

Punto Casa

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Restrictions on when goods may be sold are
Selling arrangements for the purposes of Keck

28
Q

Commission v Greece

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Restrictions on where of by whom goods may be sold are selling arrangements for the purposes of Keck

29
Q

Doc Morris

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

The fact that sales are made over the internet is a selling arrangement for the purposes of Keck

30
Q

De Agostini

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Advertising restrictions are selling arrangements for the purposes of Keck

31
Q

Belgapom

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Price controls are selling arrangements for the purposes of Keck

32
Q

Mars

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Product rules/conditions which do not come under the justification in Keck include:
Rules that lay down requirements to be met by goods such as those relating to their presentation

33
Q

Familiapress

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Product rules/conditions which do not come under the justification in Keck include:
Prize competitions that bear on the actual content on the products

34
Q

Schwarz

A

Prohibition of non-fiscal measures: Q3 Is the measure an MEE?

Product rules/conditions which do not come under the justification in Keck include:
Packaging requirements

35
Q

R v Henn and Darby

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS under Art 36?

Art 36: Public morality

Prohibition on imports of pornography

36
Q

Bluhme (Q4)

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS?

Art 36: Protection of health and life of humans, animals or plants

Restriction of import of bees justified to protect the habitat of the indigenous species

37
Q

Donner

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS under?

Art 36: The protection of industrial or commercial property

Restriction on distribution of replica goods justified on grounds of protection of copyright

38
Q

Non-Fiscal Measures: application of overriding reasons of public interest (ORPIs)

A

Apply ONLY to non-discriminatory and indistinctly applicable rules
Evidence based: burden of proof on MS
List non-exhaustive

39
Q

Cassis de Dijon (Q4)

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS?

First ORPIs developed:
Obstacles to free movement must be accepted where those provisions may be recognised as being necessary in order to satisfy mandatory requirements relating in particular to:
1. the effectiveness of fiscal supervision
2. the protection of public health
3. the fairness of commercial transactions
4. the defence of the consumer

40
Q

Commission v Denmark (recycled bottles)

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS?

ORPIs

protection of the environment

41
Q

Cinetheque

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS?

ORPIs

Protection of national culture

42
Q

Schmidberger (ORPIs)

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS?

freedom of expression

43
Q

Commission v Portugal (tinted windows)

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS?

ORPIs

Fight against crime

44
Q

Commission v Italy (motorcycle trailers)

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS?

ORPIs

Transport Safety

45
Q

Proportionality

A

Prohibition of non-fiscal measures: Q4: If the measure is a QR or MEE, can it be justified by an MS?

A measure CANNOT be justified by Art 36 or an ORPI if it is not proportionate

46
Q

Commission v UK (dim dip lights)

A

Prohibition of fiscal measures:

If a harmonisation measure is introduced, this will override or preempt national rules, and so therefore Art 34-36 will not apply

(less likely under the new approach to harmonisation and the use of minimum harmonisation)

EU Law (11 decks)

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