Free Movement of Goods Cases Etc 1

Question 1

Commission v Italy Italian Art

Answer 1

Goods are products that can be valued in money and which are capable of forming the subject of commercial transactions
- broad definition to “goods”

Question 2

Van Gend en Loos

Answer 2

Article 30 is directly effective

Question 3

Commission v Italy Statistical Levy

Answer 3

• Fee was charged to collect statistical evidence but this was of no benefit to traders. CEE.
• any pecuniary charge however small and regardless of how it is described, imposed unilaterally on domestic or foreign goods for crossing a border
• even if not for the benefit of the state, not discriminatory and if the product is not in competition with domestic products

Question 4

Social Fonds Diamantarbeiders

Answer 4

Charge was to increase social security benefits for diamond workers.
- held to be an unlawful CEE even if it is not protectionist because it made the imported diamonds less competitive

Question 5

Commission v Germany

Answer 5

a charge on imports will not be a CEE if:

• General system of internal dues, systematically applied, same criteria to foreign and domestic = tax under Art 110
• Payment for service rendered to economic operator of sum in proportion to service
• Charge attaches to inspections carried out to fulfill obligations

Question 6

Dansk Denkavit

Answer 6

General system of internal dues, systematically applied, same criteria to foreign and domestic = tax under Art 110

Question 7

Bresciani

Answer 7

NOT a tax because had different criteria for taxes on domestic goods and imports
WAS a CEE because it benefited general public, but not prescribed by EU law so no reason for the importers to pay for it

Question 8

Commission v Belgium Customs Warehouses

Answer 8

NOT a CEE if:

• consideration for service rendered
• Benefit to importer
• Amount is commensurate with costs of service provided

Question 9

Commission v Netherlands

Answer 9

Same rules apply to inspections obliged by international conventions

Question 10

Lutticke

Answer 10

-Art 110 is directly effective
-Art 30 and Art 110 are mutually exclusive
(important because an Art 30 CEE will be unlawful but an Art 110 tax may be permissible if it does not discriminate against imports or is protectionist)

Question 11

Commission v France Reprographic Machinery

Answer 11

a CEE is borne solely by imports while a tax is borne by both imports and domestic products
Illustrates difference between CEE and taxes
- Art 110 taxes:
-general system of internal dues
-applied systematically in accordance with same criteria
- to domestic and imported products alike

Question 12

Commission v Denmark

Answer 12

Wine from fruit and wine from grapes are similar. Under Art 110(1) need to see if goods are similar

Question 13

John Walker

Answer 13

Whiskey is different to fruit liquors.

- manifestly different characteristics

Question 14

Tarantik

Answer 14

Goods are similar if:
- their characteristice and the needs they serve
-place them in competitive relationship.
The degree of competition depends on product-specific factors

Question 15

Commission v Italy (Regenerated Oil)

Answer 15

• local and imported oil similar
• Discount for regenerated oil only available to domestic oil producers on basis that can’t tell if foreign oil is regenarated. Direct discrimination

Question 16

Humblot

Answer 16

Lower engine sizes taxed far less but only French cars have small engines. Indirect discrimination because the higher tax was so disproportionate

Question 17

Commission v Greece

Answer 17

Tax on larger engine sizes for environmental concerns.

• Indirect discrimination can be objectively justifiable if it meets a legitimate EU aim.
• Here taxes weren’t extreme enough to have a discriminatory effect anyway

Question 18

Commission v France Spirits

Answer 18

• Art 110(2) applies where goods are not similar but are in competition, even partial, indirect or potential.
• Whiskey , fruit based spirits are in competition with each other.
• Substitutability used to determine if goods are in competition even if they aren’t similar
• caught under Art 110(2)

Question 19

Commission v UK Wine and Beer

Answer 19

Beer and wine are in competition with each other. Substitutability used to determine goods are in competition even if they aren’t the same goods, be it partially, indirectly or potentially
SO caught under Art 110(2)

Question 20

Co-Frutta

Answer 20

Bananas are the only fruit grown in Italy that Italy taxes to import:
- NOT discriminatory under Art 110(1) because bananas are different
- IS discriminatory under Art 110(2) as table fruit and bananas are partly competitive. Substitutiability test used.
SO caught under Art 110(2)

Question 21

Art 30 TFEU

Answer 21

prohibition of customs duties and charges having equivalent effect

Question 21

Art 110 TFEU

Answer 21

prohibition of discriminatory taxation - ie internal fiscal barriers to trade

Question 21

Arts 34, 35, 36 TFEU

Answer 21

• 34, 35: prohibition of quantitive restrictions and all measures having equivalent effect
• 36: permissible derogations

Question 21

Charges for inspections to fulfil oblgiations imposed by Community law

Answer 21

Commission v Germany
1 Charge must not exceed costs of inspections
2 Inspections obligatory/uniform for all relevant products in Union
3 Inspections prescribed by EU law in general interest of EU
4 Inspections promote free movement goods

Question 21

Art 110(1)

Answer 21

MS must tax similar imported and domestic goods in the same way
-Similarity between products determined on the basis of similar and comparable use

Question 21

Rewe-Zentrale

Answer 21

to tell if products are similar

• at the same stage of production or marketing
• did the products have similar characteristics (objectively)?
• did they meet the same needs from the point of view of consumers?

Question 21

Art 110(2)

Answer 21

• regulates taxation on non-similar products

- in order to prohibit indirect protection to domestic products

Question 21

Article 110(1) remedy?

Answer 21

MS must equalise the tax regime in respect of the similar product

Question 21

Art 110(2) remedy?

Answer 21

protective effect needs to be removed