LEC 3

Question 1

2 different kinds of barriers to stop goods moving freely

Answer 1

• fiscal barriers to trade: money barriers (pecuniary barriers to trade)
• non-fiscal barriers to trade: (no money barriers (non-pecuniary barriers to trade)

Question 2

article 26 TFEU (the internal market)

Answer 2

• goods can be traded between EU member states without any restriction or barrier
• sets out goals of an internal market- market without internal frontiers in which the free movement of goods is ensured.

Question 3

customs union

Answer 3

process of agreeing that no country will charge another country for goods or services to enter their country.

Question 4

article 28 TFEU:

Answer 4

the union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between member states of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries”.
- basically, goods can move freely between EU countries without being subjected to unnecessary barriers or limitations

Question 5

2 ways the EU tries to give effect to this single market (achieving the common market)

Answer 5

• positive integration: the adaptation of common rules at con=munity
• negative integration: the annulment of national laws that are barriers to the free movement of goods

Question 6

what is a good:

Answer 6

A CJEU defined concept: “goods are products that can be valued in money and which are capable, as such, of forming the subject of commercial transactions”.

• Goods must have “tangible physical benefits”.
• Intangible benefits are not goods.
• Goods ancillary to a service are not goods.

Question 7

is petrol considered a good

Answer 7

it is a good. Because you can’t see it, it feels intangible but it’s not intangible.

Question 8

is a lottery ticket considered a good

Answer 8

not a good because a lottery ticket simply represents your part in a lottery, it is not, itself, delivering a benefit

Question 9

article 30 TFEU

Answer 9

• Customs duties 9taxesor fees) on imports and exports and charges having equivalent effect shall be prohibited between Member States.
  – means that anything called a customs duty is banned
• prohibition of customs duties and charges having equivalent effect (CEEs)

Question 10

why the prohibition of customs duties and charges

Answer 10

• A customs duty or CEE has the effect of making imported goods more expensive than rival domestic products
• Customs duties and CEEs are prohibited regardless of the purpose for which they are introduced.
• Customs duties and CEEs are prohibited regardless of the amount of charge

Question 11

customs duties

Answer 11

taxes or charges imposed by a government on good at are imported or exported

Question 12

article 34 TFEU

Answer 12

“Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”

Question 13

Article 35 TFEU

Answer 13

“Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.”

Question 14

What is a quantitative restriction?

Answer 14

“a national measure which amounts to a total or partial restraint…of imports, exports or goods in transit”.
- A numerical limit on particular goods entering a domestic market”
- Quotas or ban (total or partial) on imports. (a numerical limit on particular goods entering a domestic market”

Question 15

Why are quantitative restrictions prohibited?

Answer 15

• The purpose of a QR is often to protect the domestic market
• QRs do significant harm to the free movement of goods
• Cannot be saved unless by Article 36 derogation
• Because they are explicit barriers to trade, there is not very much case law on these (except over derogation arguments)

Question 16

MEQR

Answer 16

• Measures Equivalent to Quantitative Restrictions
• a disguised barrier to trade
• distinctly applicable means- direct discrimination- measures which treat imported goods differently from domestic goods
• Indistinctly applicable means- indirect discrimination- measures which appear to be neutral but adversely effect foreign goods

Question 17

is an MEQR ever ok?

Answer 17

• distinctly applicable measures (direct discrimination) can only be saved by Article 36 derogations
• indistinctly applicable measures (indirect discrimination) can be justified by:
  i) Article 36 derogation or;
  ii) the RULE OF REASON

Question 18

mutual recognition

Answer 18

• Presumption that goods lawfully produced and marketed in one MS can be sold in another without restriction
• Member States should act with mutual trust and confidence in others’ goods

Question 19

Difficulties with mutual recognition:

Answer 19

• Puts different legal systems in conflict with one another
• MS were initially reluctant to accept the mutual recognition of products
• Divergent product standards and specifications has been at the heart of a lot of this case law
• One answer has been a move towards harmonisation

Question 20

the rule of reason

Answer 20

• An indistinctly applicable MEQR may be justified in the interest of a mandatory requirement (which is an overriding reason in the national interest) that is reasonably and proportionately applied) e.g.
• improvement of working conditions,
• protection of environment,
• consumer protection,
• fairness in commercial transactions
• Fiscal supervision
• Promotion of national culture

Question 21

what sort of measure is the rule of reason

Answer 21

1. Importers of bread are charged 50 euros import fee at the border
2. Only 50 million kilos of bread can be imported to Spain from the EU per year
3. Bread that is imported to Spain from the EU has to be marked with a red stamp
4. All Bread sold in Spain must be wholegrain
5. An import charge is applied to non-Spanish bread

Question 22

pecuniary barriers to trade: key concepts

Answer 22

Art 30 Customs Duties, Charges and Charges having equivalent effect

Question 23

non pecuniary barriers to trade: key concepts

Answer 23

quantitative restrictions and MEQRs (article 34 &35)

Question 24

proportionality

Answer 24

• way of achieving a legitimate aim is a fundamental principle of EU law.
• proportionality is a fundamental principle of EU law.
• virtually all case law consider the proportionality of an act