Free Movement of Goods - Customs Duties and CEEs

Question 1

What is protectionism?

Answer 1

MS limiting free movement and promoting the usage of national goods/services, protecting the domestic market.

Question 2

What is positive and negative harmonisation?

Answer 2

Negative - removal of protectionist measures

Positive - Establishing EU standards replacing national rules

Question 3

What is a ‘good’? (2 cases, 3 points)

Answer 3

Comm v Italy - Product capable of (i) being valued in money, and (ii) forming the subject of commercial transactions.

Gustafsson - Must have ‘tangible physical characteristics’.

Question 4

What two points does Art 28(1), establishing the Customs Union, make?

Answer 4

1. Prohibit all customs duties on imports and exports and CEEs
2. Adopt common customs tariff in relations with third countries

Question 5

What origin of goods does Art 28 apply to (Art 28(2))?

Answer 5

Originating within the EU, or from third country but are in free circulation (ie tariffs paid, now circulating freely in EU).

Question 6

Art 30 TFEU

Answer 6

Replicates Art 28(1) - Customs duties on imports, exports, and CEEs shall be prohibited between MS.

Also customs duties of a FISCAL NATURE.

Question 7

Does Art 30 have direct effect? (case)

Answer 7

Yes (Van Gend en Loos)

Question 8

What is a customs duty? What is a rare case dealing with customs duty?

Answer 8

A charge on import and export based on official list/schedule. (ie TARIFFS)

Van Gend en Loos

Question 9

What is a CEE? (case)

Answer 9

Statistical Levy case

‘any pecuniary charge, however small’ (no de minimis) for any designation (taxes, fees, anything)

but IMPOSED BECAUSE A BORDER IS CROSSED.

Question 10

Is the purpose of a CEE relevant? (first case)

Answer 10

Art Treasures

Charge imposed on export of artistic, historical, and archaeological items by Italy.

PURPOSE not relevant, as Art 30 made no reference to it.

Instead, impact of charge is relevant - trade was ‘hindered by the pecuniary burden’ and was CEE

Question 11

Is the purpose of a CEE relevant? (second case)

Answer 11

Sociaal Fonds voor de Diamantarbeiders

Belgium argued that charge did not raise revenue nor protect national industry.

Art Treasures affirmed - impact examined, monetary friction hindering trade, was CEE.

Question 12

Which case identified three exceptions to Art 30 TFEU and what were they?

(For first exception, name an implication relating to tax)

(For second exception, name and explain case where state’s argument was denied)

(For third exception, name 3 conditions and case)

Answer 12

Comm v Germany

1. General system of internal dues - where charge is imposed with same criteria to domestic and imported products alike – Note Tax will fall under Art 110 which is mutually exclusive (Ministerio delle Finanze)
2. Exchange exception - where the party subject to the charge recieves a service in return, AND is for an amount commensurate with that service.

Statistical Levy case - Italy imposed charge on exports used to collect statistics, argued this would benefit the people paying.
HELD - was too broad and would benefit the whole economy.

3. Inspections - Bresciani - under national law, cannot charge. If optional under EU law, cannot charge. If mandatory under EU law, CAN charge.

Question 13

San Giorgio

Answer 13

Traders paying unlawful customs duty or CEE can fully recover.

Question 14

Comateb (2 points)

Answer 14

1. Where trader passes burden to third party, cannot claim from MS - unjust enrichment - partial recovery may be allowed if burden partially passed.
2. Damages for loss of sales due to higher price may be claimed, even if this remedy doesn’t exist under national law.

Question 15

Michailidis

Answer 15

Burden of proof that charges have been passed on by trader paying them is on MS

Question 16

Is Art 30 horizontally directly effective? Name case

Answer 16

Edouard Dubois - yes, even if State gives ability to collect customs charges to private party.