Free movement of goods Fiscal

Question 1

Conditions of FMOG

Answer 1

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

Question 2

Goods defintion

Answer 2

• 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

Question 3

Direct discrimination

Answer 3

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

Question 4

Indirect discrimination

Answer 4

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

Question 5

Market access principle

Answer 5

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

Question 6

market access principle: Docmorris

Answer 6

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

Question 7

market access Principle: Com v Portugal

Answer 7

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

Question 8

Market Access Principle: Gebhard

Answer 8

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

Question 9

FMOG ARTICLES

Answer 9

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

Question 10

Article 30

Answer 10

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

Question 11

Article 30: Charges having equivalent effect

Answer 11

• 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)

Question 12

Daimondarbeiders

Answer 12

• 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

Question 13

Remedies under Art 30

Answer 13

• restitutionary claim

- Claim for loss of sales

Question 14

restitutionary claim (case)

Answer 14

-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

Question 15

Loss of sales: ways to claim

Answer 15

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

Question 16

Permissible Charges: Com v Germany

Answer 16

• 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

Question 17

Permissible charges: Com v Belgium

Answer 17

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

Question 18

Bauhuis

Answer 18

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

Question 19

What constitute permissible charges

Answer 19

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

Question 20

ART 110

Answer 20

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

Question 21

Johnnie Walker

Answer 21

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

Question 22

Com v France

Answer 22

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

Question 23

Does art 110 produce direct effect

Answer 23

yes. It creates rights that national courts must protect.

Question 24

2 steps with Art 110

Answer 24

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

Question 25

Para 1 Prohibition of discriminatory taxes

Answer 25

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

Question 26

Similarity determined by

Answer 26

- factual comparison based on product characteristics - Analysis of their similar and comparable use If similar, taxes must be levied without discrimination

Question 27

Com v Italy (bananas)

Answer 27

- 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.

Question 28

Com v Denmark (beverages)

Answer 28

``` 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 ```

Question 29

Direct discrimination

Answer 29

``` 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) ```

Question 30

Lutticke

Answer 30

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

Question 31

Indirect discrimination

Answer 31

``` 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) ```

Question 32

Com v France (tobacco)

Answer 32

``` dark tobacco was taxed more favourable than white tobacco, which was almost exclusively imported ```

Question 33

Humbolt

Answer 33

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

Question 34

Justifying indirect discrimination

Answer 34

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

Question 35

Bergandi

Answer 35

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

Question 36

Com v Greece

Answer 36

``` Tax discouraging the purchase of large engine vehicles could be justified on environmental protection grounds ```

Question 37

Chemical Farmaceutici

Answer 37

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

Question 38

Com v France

Answer 38

``` Taxing sweet wine more favourable than liqueur wine was justified on grounds of regional development ```

Question 39

Paragraph 2: protectionist taxation

Answer 39

this para concerned with whether the imported and | domestic products are in competition

Question 40

Com v Denmark

Answer 40

enought to be only partially, indirectly or | potentially in competition

Question 41

in competition determined by

Answer 41

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

Question 42

Competition determined by Other qualitative factors like

Answer 42

- their function and distribution - economic link between the respective sectors of production - substantial price differences between them - their possibilities for use

Question 43

Com v UK

Answer 43

- 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

Question 44

Article 110 remedies

Answer 44

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

Question 45

Remedies: Hans Just

Answer 45

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