Free Movement of Goods- Fiscal Barriers

Question 1

Commission v Italy (Art Treasures case)

Answer 1

Court of Justice defined ‘goods’ in this case as “products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions.” So includes objects of artistic, historical, archaeological or ethnographic interest. Purpose of duty is irrelevant because effect of custom duties is to hinder trade.

Question 2

Commission v Italy (Statistical Levy case)

Answer 2

established material requirements of a CEE- Material Requirements of a CEE:
1. Any pecuniary charge; which is
2. Imposed unilaterally on domestic or foreign goods;
3. By reason of crossing a frontier; and
4. Which is not a customs duty in the strict sense
Irrelevant factors in deciphering whether something is a CEE- size of charge, its designation and mode of application, whether it is imposed for the benefit of the state, whether it is discriminatory or protective in effect, whether the product is not in competition with any domestic product.

This case was also an example of an unlawful CEE- small 10 lire fee to fund compilation of stats was ruled unlawful because a pecuniary charge, no matter how small is a CEE.

Question 3

Sociaal Fonds voor de Diamantarbeiders

Answer 3

This case demonstrates the strictness of the prohibition on CEEs - levy on imported diamonds to fund benefits for diamond workers ruled unlawful even if non-protectionist and product charged is not in competition with any domestic product.

Question 4

Commission v Germany (Animal Inspections Case)

Answer 4

see this case for charges falling outside of Article 30

Question 5

Lütticke

Answer 5

INTERNAL TAX EXCEPTION TO ART 30- Court rules in Lütticke case that internal duties cannot be governed by article 30 CEEs and Article 110 at the same time (they are mutually exclusive systems) Therefore, an internal tax that is governed by 110 cannot fall within article 30.

Question 6

Commission v Belgium (Custom Warehouses case)

Answer 6

The charge not within Art.30 if consideration for a specific service is actually rendered e.g: If the trader has requested the service

Question 7

Commission v Italy (Statistical Levy case)

Answer 7

The charge is not within Art.30 if consideration for a specific service is actually rendered e.g. If the trader specifically benefits from the service and If the charge is proportionate to the costs of the service

Question 8

Bresciani

Answer 8

The charge is not within Art.30 if consideration for a specific service is actually rendered e.g. If the trader specifically benefits from the service

Question 9

Commission v Germany (Animal Inspection case)

Answer 9

Case that falls outside of Art 30 because the charge for EU inspection was required by International Treaties. Outside of Art.30 if:
o The charge does not exceed actual cost of inspection
o The inspection is obligatory
o It is required in the general interest of the EU
o If it promotes the free movement of goods

Question 10

Commission v France (Levy on Reprographic Machinery case

Answer 10

looked at the scope of Art 110 and defined internal taxation as:
“a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products.”
Case also distinguished internal taxation from CEE system of internal dues which are applied irrespective of the origin of the products (Dansk Denkavit) – Art.110

Question 11

Rewe-Zentrale v Hauptzollampt

Answer 11

Established Art 110(1) test for whether products are similar:
1. The products must have similar characteristics at the same stage of marketing or production (This is objective)
2. The products must meet the same needs from the point of view of consumers (this is subjective)
Both limbs need to be satisfied in order for the products to be classed as similar!

Question 12

Commission v France (‘Spirits’)

Answer 12

case confirmed Zentrale test basing similarity of products on similar and comparable use and not whether the products are strictly identical

Question 13

Commission v Denmark

Answer 13

Are fruit wine and grape wine similar products? Yes because they satisfy both limbs of the Zentrale test (1. they had similar characteristics objectively and made using the same manufacturing process and they had similar organoleptic properties and 2. they met the same needs from the point of view of consumers. So fruit and grape wines deemed to be similar products.
Also use this case as example of indirect discrimination under art 110(1)

Question 14

John Walker Ltd case

Answer 14

Fruit liquors and whiskey were not deemed to be similar products because they do not have similar characteristics (e.g. made from different basic ingredients) and are made using different processes. First limb of test therefore not satisfied and this was enough for the court of justice to find that they were not similar.

Question 15

Commission v Italy (Regenerated Oil)

Answer 15

example of direct discrimination

Question 16

Humblot v Directeur

Answer 16

indirect discrimination – imported cars - The Court of Justice held that the system of car tax had discriminated against imported cars with engine sizes over 16CV because its effect was to cancel out any competitive advantage which these larger engine imported cars would otherwise have had in the eyes of consumers over French cars which all had smaller engines. It encouraged consumers who would have bought the larger engine cars, all of which were imported, to consider buying smaller engine French cars instead.

Question 17

Commission v Greece

Answer 17

a tiered tax system was held to be lawful, even though once again only imported products fell within the highest category. The Court of Justice held that the Commission had failed to prove that the tax system actually had a discriminatory or protective effect against imported cars. Any consumers who were discouraged from buying a car over 1,800cc would be able to choose from the range of cars between 1,800cc and 1,600cc, which were still all imported in any event, or from the range of cars below 1,600cc which comprised both imported models and models manufactured in Greece.

Question 18

Chemial Farmaceutici SpA v DAF SpA

Answer 18

set out the conditions for determining when taxation measure which appear to discriminate indirectly against imported goods may be capable of being legitimately justified on an objective non-discriminatory basis:

1. Tax must differentiate between products on the basis of objective criteria
2. Must pursue economic policy objectives compatible with EU law
3. Detailed rules must not discriminate

Question 19

Commission v France (‘Spirits’)

Answer 19

see this case for which products fall within Art 110(2) “products which, without being similar… are nevertheless in competition, even partial, indirect or potential, with certain goods of the importing country”

Question 20

Commission v Belgium (beer and wine)

Answer 20

the essential question is whether it reduces even potential consumption of imported products to the advantage of competing domestic products

Question 21

Commission v United Kingdom (beer and wine)

Answer 21

the Court of Justice concluded that, in view of the substantial differences in the quality and price of wine, the decisive competitive relationship was between beer and the lightest and cheapest varieties of wine. It found that, irrespective of whether the tax ratio between these two kinds of beverages was judged by reference to volume or to alcohol content or by comparing tax as a proportion of the average price, it was clear that the tax burden on the cheaper types of wine was considerably higher than that on beer. This did have the effect of stamping wine with the hallmarks of a luxury product which could scarcely constitute a genuine alternative to beer in the eyes of the consumer.

Question 22

Commission v Belgium

Answer 22

wine in Belgium was subject to a VAT rate of 25% whilst beer was subject to a rate of 19%. The Court of Justice concluded that, as the retail price of a litre of wine in Belgium was four times that of beer, the Commission had failed to prove that the difference of only 6% between the VAT rates applied to the two products was capable of influencing consumer behaviour and therefore of having a protective effect in favour of beer.