Free Movement of Goods - Taxation Flashcards

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1
Q

Two provisions in Art 110 TFEU

A
  1. Cannot impose internal taxation in excess of that imposed on similar domestic products.
  2. Cannot impose internal taxation to afford INDIRECT protection to other products.
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2
Q

When is Art 110(1) and (2) applied

A

(1) - similar products

(2) - not similar but in competition

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3
Q

Original test for whether products are similar (case)

A

Fink-Frucht - if they came within same tax classification.

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4
Q

Initial attitude toward the distinction between Art 110(1) and (2) (case)

A

Commission v France - did not feel it necessary.

Focus was on whether tax was discriminatory/protective.

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5
Q

Why is distinction between Art 110(1) and (2) important?

A

Response required is different - breach of (1) requires equalisation of Taxes, while (2) requires removing protective effect of taxes.

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6
Q

Commission v Denmark (facts and law)

A

fruit wine vs grape wine

TWO STAGE TEST FOR SIMILARITY

  1. Objective characteristics:
    (a) origin
    (b) method of manufacture
    (c) organoleptic properties
  2. Are they equally capable of meeting the same need from perspective of consumers?
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7
Q

Facts in Johnnie Walker

A

Whiskey v Fruit liqueur wines

Alc content and manufacturing processes were different - failed Comm v Denmark

Apply 110(2)

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8
Q

How does fiscal autonomy work into the equation for Art 110? (name two cases)

A

Tax is compatible with Art 110 as long as it excludes ‘any possibility’ of preferential taxation for domestic products. (Dounias)

Tax arrangements based on objective criteria are allowed (Johnnie Walker)

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9
Q

Examples of Direct Discrimination for 110(1)

A

Comm v Italy - lower taxes on one type of oil domestically but not imported.

Comm v Ireland - domestic procedures were more lenient as regards payment. procedures for domestic and non domestic goods must also be equal

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10
Q

Can MS provide justification for direct discriminatory breach? (case)

A

No (Tobacco)

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11
Q

Example of indirect discrimination (case)

A

Humblot - car tax for cars above 16CV, and no French cars were rated above it.

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12
Q

Commission v Greece facts and law

A

Imposed higher tax on higher cylinder capacity cars for valid environmental reason. Only discriminatory if discouraged customers from buying imported cars.

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13
Q

Chemical Farmaceutici facts

A

Taxed synthetic alcohol more than fermented alcohol.

Wanted to preserve ethylene for more important economic uses both internally and externally. Held valid justification.

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14
Q

Two conditions for justification for indirect discriminatory breach of Art 110(1)

A
  1. Legitimate objective

2. Completed in proportionate manner

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15
Q

Beer and Wine case (110(2))

A

TEST for products in competition - cross-elasticity of demand:

If one product’s price changes, would consumers switch to the other?

Consumer needs identified - Quench thirst and accompany a meal. Interchangeable, and satisfied the test.

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16
Q

Are damages for loss of sales also available for art 110(2)? (case)

A

yes - Hans Just