Free Movement of Goods: taxes, duties and charges

Question 0

Art 30 TFEU

Answer 0

• negative duty on MS not to impose custom duties; MS need not take any action under this article but must not impose any new duties on imports and exports
  NO DEROGATIONS - as this is an absolute prohibition and ECJ has made clear that the purpose of the charge is completely irrelevant (Sociaal Fonds)

Question 1

Export on tax on art. Treasures : EC commission v Italy (1968)
- key definition of goods

Answer 1

-Goods are interpreted as products which can be valued in money and which are capable as such of forming the subject of commercial transactions

• justifications for imposing Customs duties – Italy wanted to discourage the removal of artifacts by imposing a custom duty
  
  • ECJ held that the tax was irrelevant and prohibited by art 30 therefore Italy breaching EU law

Question 2

Diamondarbeiders (1969)

Answer 2

Concerning tariffs imposed for benevolent purposes

• charge imposed in Belgium
• it does not matter that the money raised is used for a worthy cause, so long as the charge interferes with free trade it is prohibited

Question 3

What is a customs duty?

Answer 3

Charges imposed on imported goods when they cross a frontier or border

Question 4

Art 110 TFEU - discriminatory tax

Answer 4

-does not cross the border (will possibly say it is a tax in the question)
- NO DEROGATIONS
- prohibits discriminatory tax :
Prohibit taxes that discriminate between imports and similar domestic goods
Prohibit taxes that discriminate between imports and competing domestic goods

Principal of fiscal autonomy- MS have the right to determine their own fiscal policies as long as it does not interfere with then internal market

Question 5

Indirect Discrimination (Humblot)

Answer 5

• French cars case

Question 6

Van gend en Loos

Answer 6

Goods were re classified by Dutch govt so they were subject to higher rate of duty; ECJ held that the new duty imposed a higher rate of import duty upon the importer and contravened art 30

Question 7

Why are customs duties prohibited absolutely?

Answer 7

To make the EU a single unified market with no obstacles in the way, regardless of where the goods come from

Question 8

Permissible charges

Answer 8

Payments for genuine admin services rendered to the importer/ exporter – commission v Belgium (warehousing)
Charges for inspection required by EU Law : charges should not exceed actual cost of inspection, inspections obligatory and uniform for all products concerned – commission v Germany

Question 9

Remedies

Answer 9

States must repay charges unlawfully levied: restitutionary claim

Question 10

Direct discrimination

Answer 10

Less favourable treatment of importe goods on the grounds of its origins (Haahr Petoleum)

Question 11

Reverse discrimination

Answer 11

When national law treats domestic goods less favourably than imported goods (SA des Grandes Distilleries Peureux)

Question 12

Indirect Discrimination

Answer 12

A measure that makes no reference to the origin of the goods in law, but that imposes less favourable treatment to imported goods (Humblot)

Question 13

Objective justification of indirect discrimination

Answer 13

• unconnected with the origin of the product
• pursues a legitimate objective recognized by the EU
• the measure is proportionate
  Ie. Commission v Greece (environmental protection)

Question 14

Art 110(1) Similar Goods

Answer 14

Need to be objectively judged before any comparison on the amount of tax levied can be made
John Walker case – whether fruit liqueur was similar to whiskey. When judging had to be done objectively and it was held not similar because of different alcohol content and distillation process

Question 15

Art 110(2) competing goods

Answer 15

Designed to catch national tax provision that apply unequal tax rating to goods that may not strictly be similar but which may nonetheless be in competition with each other. To prevent tax ratings from affording indirect protection to the domestic goods.

Commission v UK – UK beer was being taxed more favourably than imported wine. UK argue that they could not be in competition Blaue not similar but ECJ held that beer and cheap wine area in competition in the market and held that higher wine tax was detrimental to imports of wine and this was a fiscal measure that was indirectly discriminatory and had a protectionist effect

Question 16

Remedies for Art 110(1) and (2)

Answer 16

110(1):
Equalizing taxes on domestic and imported goods
Extending the benefit enjoyed by domestic goods to imported goods
Levelling down benefits domestic goods enjoy

110(2):
States must remove protective effect from its taxation rules
Does not impose equalization of taxes

Question 17

Free movement of goods intro line

Answer 17

It is a fundamental policy of the EU; CJEU adopted a liberal interpretation of freedom to allow goods to circulate freely in the union and also adopted a restrictive approach to measures enacted by the MS which impact on these freedoms