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EU law > Free movement of goods Fiscal > Flashcards

Free movement of goods Fiscal Flashcards

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1
Q

Conditions of FMOG

A
  1. Products must be goods
  2. Cross border element
  3. Applies to state measures
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2
Q

Goods defintion

A
  • Comm v Italy: can be valued in money and form the subject of commercial transactions
  • Jagerskiold: Possess tangible physical characteristics
  • goods have to be ends in themselves
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3
Q

Direct discrimination

A

When goods are treated differently in law because they come from other MSs

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4
Q

Indirect discrimination

A

In law, rules are neutral. But in fact, they bear heavier on goods from other MSs

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5
Q

Market access principle

A

Prohibition of restrictions which aren’t discriminatory but in effect, limit access to a given national market

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6
Q

market access principle: Docmorris

A

German ban of online sale of prescription medicine = subject to scrutiny

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7
Q

market access Principle: Com v Portugal

A

Ban on use of tinted film= restriction as it offered access of film made in other MSs

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8
Q

Market Access Principle: Gebhard

A

National measures that hinder/make less attractive the excercise of freedoms [of movement] are prohibited

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9
Q

FMOG ARTICLES

A

Art 30: Custom duties
Art 110: protectionist taxes
Art 34: quantitative restrictions

  • all 3 apply to MSs (national authority)
  • art 34 also applies to private bodies with regulatory functions
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10
Q

Article 30

A

Prohibits customs duties and charges having equivalent effect.

  • customs duties are not defined in treaty
  • customs duties are charges levied on all goods imported from other MSs based on a PREDEFINED TARIFF.
  • tariff rates calculated based on
    1. value of goods declared
    2. per-unit of goods declared
  • Prohibition is absolute. Justification not allowed
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11
Q

Article 30: Charges having equivalent effect

A
  • these are included so that MSs can’t bypass the prohibition
  • Com v Italy:
  • (stat levy) the levy was prohibited
  • any charge imposed on domestic/foreign goods because of crossing a frontier and isn’t a custom duty= a CEE
  • No de-minimis rule: no minimum requirements for a charge to become a CEE
  • It doesn’t matter the designation/mode of application
  • Art 30 concerns charges levied at frontier (border)
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12
Q

Daimondarbeiders

A
  • 0.33% charge of value of imported diamonds used to fund soc. benefits of workers in diamond industry was still a cee
  • doesn’t matter if it doesnt benefit a MS
  • doesn’t matter if its not protective/discriminatory
  • doens’t matter if its levied on a product not in competiotion with a domestic one
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13
Q

Remedies under Art 30

A
  • restitutionary claim

- Claim for loss of sales

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14
Q

restitutionary claim (case)

A

-San giorgio: issue concerning repayment of health inspection charge on imported dairy

HOWEVER:

  • Comateb: Restitutionary claims depend on if charge was transferred wholly or partially to consumers.
  • ‘to repay the trader will be paying hims twice over= unjust enrichment’
  • Full transfer of charge= no reimbursment
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15
Q

Loss of sales: ways to claim

A
  • Under national law on damages
  • Under Brasserie/Factortame III liability doctrine
  • Comateb: consumers can also get reimbursed fro trader or state (though rarely occurs)
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16
Q

Permissible Charges: Com v Germany

A
  • Lands in germany charged a fee for vet inspections on all imported live animals
    NOT CEE because
  • fees for genuine services for importers (unlike stat levy whcih benefits public)
    same was held in BRESCIANI: compulsory vet inspections on imported cow hides
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17
Q

Permissible charges: Com v Belgium

A

Warehouse fee for duration of custom formalities. Is CEE as its not a service for importers

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18
Q

Bauhuis

A 
Fees prescribed by union= not CEE 
not cee if: 
- dont exceed cost if inspection
- obligatory and uniform across EU
- Prescribed in EU interest
- Promote free movement of goods
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19
Q

What constitute permissible charges

A
  • fees for genuine services for importers
  • Fees required by union measure
  • Charges part of internal taxation
20
Q

ART 110

A

Internal taxation
2 paras
1. Prohibits discriminatory taxes, direct or indirectly
2. Prohibits protectionist taxation

due to decentralisation, MSs can choose own tax policy BUT they must not be different for foreign products

21
Q

Johnnie Walker

A

diff in tax was legal between scotch whiskey and fruit wine as it was based on obj criteria like raw materials used

22
Q

Com v France

A

france could legally give different taxes to all kinds of sweet wines as opposed to liqueur wines because it was based on objective criteria: they were made in regions with low rainfall and poor soil

23
Q

Does art 110 produce direct effect

A

yes. It creates rights that national courts must protect.

24
Q

2 steps with Art 110

A
  1. Is there discrimination between foreign goods and similar domestic goods?
  2. Is there protection of domestic products in relation to a competing imported one?
  • when analysing art 110 first you find a similar product then you compare the tax rates
25
Q

Para 1 Prohibition of discriminatory taxes

A

in this para, assessment concerned with if the imported and domestic products are similar

26
Q

Similarity determined by

A
  • factual comparison based on product characteristics
  • Analysis of their similar and comparable use

If similar, taxes must be levied without discrimination

27
Q

Com v Italy (bananas)

A
  • consumption tax levied on fresh and dry bananas.
  • no tax on other table fruits typically produced in italy
  • Qs: 1. characteristics (taste, smell) 2. Water content(thirst quenching) 3. Do they satisfy same consumer needs
  • HELD: bananas and other table fruits produced in italy = not similar (1. bananas cant quench thirst, pears (for e.g.) can 2. bananasw regarded as food stuff on italian market.
28
Q

Com v Denmark (beverages)

A 
Similar fruits and grape wines: 1. made from agric produce 2. by natural fermentation 3. by similar taste/alc. content 4. meet same needs (meals, refreshment)
questions for similarity 
- origin
- method of manufacture
- taste and alcohol content
- consumer point of view
29
Q

Direct discrimination

A 
Taxation rules treat imported goods
less favourably in comparison to
similar domestic ones explicitly on
grounds of their origin: higher taxes
levied (discrimination in law) (prohibited under art 110 (1)NO JUSTIFICATION)
30
Q

Lutticke

A

Germany levied a tax on powdered milk form Luxembourg, though it
was not payable by the
one produced in Germany

31
Q

Indirect discrimination

A 
Taxation rules are neutral in their
formulation, but bear more heavily
on imported goods in comparison
to similar domestic ones
(discrimination in fact) (they may be justification)
32
Q

Com v France (tobacco)

A 
dark tobacco was
taxed more favourable
than white tobacco,
which was almost
exclusively imported
33
Q

Humbolt

A

special tax was levied on all cars with an engine capacity over 16 cv, which were
not made in
France

34
Q

Justifying indirect discrimination

A
  • pursues a legitimate aim under EU law
  • the national interest is unconcerned with the origin of the products
  • measures taken are proportionate
35
Q

Bergandi

A 
An indirectly
discriminatory tax on
‘bad’ game machines
could be justified
pursuant to consumer
protection/public
morality
36
Q

Com v Greece

A 
Tax discouraging the
purchase of large engine vehicles
could be justified on
environmental
protection grounds
37
Q

Chemical Farmaceutici

A 
Taxing denatured alcohol
based on petroleum
higher than that obtained
by fermentation promoted
agriculture and preserved
petroleum for other use
38
Q

Com v France

A 
Taxing sweet wine
more favourable
than liqueur wine
was justified on
grounds of regional
development
39
Q

Paragraph 2: protectionist taxation

A

this para concerned with whether the imported and

domestic products are in competition

40
Q

Com v Denmark

A

enought to be only partially, indirectly or

potentially in competition

41
Q

in competition determined by

A
  1. substitutability of goods (Ability of two products to be
    substituted for the same consumer needs)
  2. cross-elasticity of demand (Increase in the demand for one product a result of a price increase of another)
  3. other (qualitative) factors
42
Q

Competition determined by Other qualitative factors like

A
  • their function and distribution
  • economic link between the respective sectors of production
  • substantial price differences between them
  • their possibilities for use
43
Q

Com v UK

A
  • beer in comp. with most accessible types of wine
  • higher tax stamped wine with luxury status. affecting consumer choice
  • Tax policy of a Member State must not crystallise given consumer habits
44
Q

Article 110 remedies

A

para 1: Discrimination must be eliminated: taxes on domestic and imported products should be equalised and tax benefits enjoyed by domestic products should be extended to imported ones

Para 2: Protection afforded to domestic products should be removed

45
Q

Remedies: Hans Just

A

Restitutionary claims or for loss of sales are possible subject to unjust enrichment

EU law (3 decks)

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