Freedom of Goods: Fiscal Trade

Question 1

Article 26(2)

Answer 1

Internal market shall comprise an area for free movement of goods, persons, service and capital.

Question 2

Protectionism

Answer 2

Action taken by a state to limit free movement and promote the use of national goods/services.

Question 3

Harmonisation

Answer 3

Negative - removal of national rules which hinder cross border trade.
Positive - establishment of EU standards for harmonised products/services “new approach” under council resolution.

Question 4

Commission v Italy - 3

Answer 4

1. Any products that can be valued in money and which are capable of forming the subject of commercial transactions.
2. Size/Purpose of the charge is irrelevant
3. Specific benefit actually conferred

Question 5

Gustafsson

Answer 5

Must have “tangible physical characteristics”

Question 6

Article 28

Answer 6

Covers import and export charges and charges when goods move between regions in a MS.

Question 7

Article 28(1)

Answer 7

Union shall comprise a customs union involving the prohibition between MS of customs duties on imports and exports and the adoption of common duties tariff in their relations with third countries.

Question 8

Article 28(2)

Answer 8

Covers goods originating within the EU or which have come from a third country but in free circulation.

Question 9

Article 30

Answer 9

Prohibits two types of measures:

1. Charges and Duties
2. Charges having Equivalent Effect (CEE’s)

Question 10

Carbonatti

Answer 10

No charges internally or externally

Question 11

Van Gend en Loos

Answer 11

Raise on imported ureaformaldehyde was unlawful even though the tariff was not a new one.

Question 12

Sociaal Fonds

Answer 12

Purpose is not relevant

Question 13

Commission v Germany 3 exceptions

Answer 13

1. General system of internal dues
2. Exchange exception
3. Inspections

Question 14

Finanze

Answer 14

30 and 110 are mutually exclusive

Question 15

Commission v Belgium

Answer 15

30 does not apply where the charge is “consideration for a service actually rendered to the importer and is of an amount commensurate with that service”

Question 16

Bresciani

Answer 16

Any charge which provides a benefit for the general public should be paid for by the general public and not the importer/exporter.

Question 17

Commission v Germany

Answer 17

Fees charged in order to comply with a Directive are not covered by Article 30

Question 18

San Giorgio

Answer 18

A restitutionary claim is available to traders who have paid an unlawful customs duty or CEE. MS must repay in full the unlawful charges.

Question 19

Comateb

Answer 19

If the trader has passed the charges on to third parties, they cannot claim repayment from the State, may also have a claim for loss of sales.

Question 20

Edouard Dubois

Answer 20

Irrelevant whether the state collects the customs duty or CEE or outsourced this to a private party, direct effect applies in either case.

Question 21

258-260 TFEU - enforcement action

Answer 21

Action brought to the CJEU by the Commission (Article 258) or another MS (259) where they believe the MS has failed to comply with legal obligations.

Question 22

Article 110 (1)

Answer 22

No MS shall impose directly or indirectly on the products of other MS and internal taxation of any kind in excess of that imposed directly or indirectly on SIMILAR domestic products.

Question 23

Article 110(2)

Answer 23

No MS shall impose on the products of other MS any internal taxation of such a nature as to afford indirect protection to other products in COMPETITION.

Question 24

Fink-Frucht

Answer 24

Regarded as similar if they came within the same tax classification regardless of product type.

Question 25

Commission v France

Answer 25

Court felt the main question is whether or not there is discrimination not whether products are the same. No defence to 110 so no directly discriminatory breaches can be justified.

Question 26

Commission v Denmark

Answer 26

Both products (fruit wine/grape wine) met the same needs, did not matter that one was more popular than the other. Therefore under 110(1).

Question 27

Johnnie Walker

Answer 27

Objective characteristics of whisky and fruit liquor wines are different therefore they were not similar. 110(2)

MS are free to set out tax arrangements which distinguish between products on the basis of objective criteria.

Question 28

Commission v Italy Case Facts

Answer 28

Direct discrimination. It was for importers to show that their oil fell within a particular category, subject to reasonable standards of proof.

Question 29

Commission v Ireland

Answer 29

Direct discrimination. Procedures for tax collection must also treat domestic and non-domestic goods equally.

Question 30

Humblot

Answer 30

Indirectly discriminatory French law on vehicles above 16CV.

Question 31

Two types of Justification

Answer 31

1. Pursue an objective justification

2. Public interest grounds

Question 32

Commission v Greece

Answer 32

Different tax boundaries were justified by an environmental objective.

Question 33

Chemical Farmaceutici

Answer 33

As synthetic alcohol was mainly imported this constituted a legitimate economic policy.

Question 34

Commission v UK

Answer 34

Held to be discriminatory as the difference in tax was dramatic.

Question 35

Denkavit

Answer 35

As the annual levy applied to both foreign and domestic products this was held to be under Article 110.

Question 36

Michailidis

Answer 36

Articles at borders fall under 110 only when also charged domestically “at the same rate, same marketing stage and on the same basis of an identical chargeable event.”

Question 37

Cooperative-Co Frutta Srl

Answer 37

If products are not similar then 110(2), looked at goods in common with bananas.

Question 38

Compagnie - Selective Tax Refund

1. Breach of 30
2. Breach of 110

Answer 38

1. If benefits of a refund fully offset the burden on national products the charge is equivalent to a customs duty
2. If benefits partially offset the burden on national products, will be prohibited if discriminatory