Free movement of goods
- Free movement of goods is secured through the elimination of customs duties and
quantitative restrictions and the prohibition of MEE
- Eliminating all obstacles to trade in the EU
- Right of free movement of goods originating in MS’s and goods from third countries in
free circulation
- The creation of the single market necessitated the elimination of all remaining obstacles
to the free movement of goods
- What did the EU do to abolish obstacles? → Fiscal and Non Fiscal Rules
Goods: Products which can be valued in money and which are capable, of forming the subject of
commercial transactions Commission v Italy 1968
- Ex: Waste, Electricity
Internal market: An area without frontiers in which the free movement of goods, persons,
services and capital is ensured
Legal basis: Art. 34/35 TFEU
ART 3 (3) + ART 26 TFEU → Definition of the IM
ART 28(1) → Customs Union
ART 29 TFEU→ Products considered to be in free circulation IF the import formalities
have been complied with and any customs duties/CEEs due have been
levied in a MS
- Case: Donckerwolcke
ART 30 TFEU → Customs duties on imports & exports & charges having equivalent
effect shall be prohibited between MS (Fiscal)
ART 34 TFEU→ Ban on quantitative restrictions on imports and measures that have an
equivalent effect (MEQR). (Non-Fiscal)
ART 35 TFEU → Ban on quantitative restrictions on exports and measures that have an
equivalent effect (Non-Fiscal)
ART 36 TFEU → Justifications
ART 110(1) TFEU → Prohibition of discrimination internal taxation (Fiscal)
ART 110(2) TFEU → Prohibition of protectionism
ART 114 TFEU→ Achievement of the IM
,Free movement of goods achievement through:
1. Prohibition of customs duties and charges of equivalent effect or CEEs (ART 30
TFEU)
2. Prohibition of quantitative restrictions and measures of equivalent effect or MEEs
(ART 4/36 TFEU)
3. Prohibition of discriminatory internal taxation (ART 110 TFEU)
→ all directly applicable EXCEPT Capital → Mutual recognition applied
Customs duties → Charges levied on goods by reason of the fact that they cross a frontier
between MS’s
Charges of Equivalent effect: ART 30
Diamonds 1969 (para 9) → Any pecuniary charge however small & whatever designation &
mode of application imposed on domestic or foreign goods, by
reason of fact they cross a frontier.
Quantitative restrictions: ART 34-35
Geddo 1973 → “Measures which amount to total or partial restraint of...imports, exports of goods
in transit”
MEQR: ART 34-35
Dassonville (par. 5) → ‘All trading rules enacted by MS which are capable of hindering, directly
or indirectly, actually or potentially, intra-community trade”
- Broad
- Buy Irish (para 25)
→ Inappropriate to consider statistical evidence as to the volume of imports of products
subject to the national measure (Campaign made imports rise)
- Trailers 2009 (para 37)
→ Added: “Any measure which hinders access to the market” also constitutes an MEE
Summary:
ART 30/110 → CEE
ART 34/35/36 → MEQR
Customs Union
Art. 28(1) TFEU → EU constitutes a customs union covering all trade in goods
- Uniform rules for goods coming from third countries
Ex: 1) A common customs tariff (ART 31 TFEU)
2) Common commercial policy in trade with third countries (ART 207 TFEU)
,Distinctly applicable measures: Makes a distinction
- Caught by Art 34
- Justified on Art 36
- Ex: Buy Irish / Comm v UK
Indistinctly applicable measures: Applies to imports, exports and domestic products
- Rule of Reason Principle (Mandatory Requirements)
- Cassis de Dijon
- Justified: Art 30 Derogations (Not exhaustive list)
Mutual recognition Cassis de Dijon (para 8)
Mutual recognition: Ensures market access for goods
- Guarantees that any good lawfully sold in one EU country can be sold in another
Justification to go against Mutual Recognition → Mandatory Requirements
- (Art 30 Derogations)
→ Possible even if the goods do not fully comply with the technical rules of the other country
Exceptions: When public safety, health or the environment are concerned
Selling Arrangements:→ Opinion of Tesauro Advocate General (C-292/92) (Par 9)
- Who / Where /When / How
- Not MEE Keck Case (Par 16)
- If discriminatory→ Then Yes MEE → Art 34
Product Requirement: Form, presentation, packaging, labeling, weight, size
- Keck Case (Par 15)
- Prohibited under Art 34 TFEU
- Justifications Art 36
- Is it proportionate?Comm vs Austria & Comm vs Germany
1. Suitable
- Appropriate to achieve?
2. Necessary
- Less restrictive means?
3. Balance
- Private vs public interest
, Justifications
1. Art 36
2. Mandatory Requirements
- Effectiveness of fiscal supervision, the protection of public health, the fairness
of commercial transactions and the protection of the consumer
- Established in Cassis De Dijon
Discrimination Tax
Art 110
- NO MS can impose direct or indirect taxation on import goods
2 Prohibitions: 1. Internal Discrimination Tax
- Art 110(1)
- Similar Domestic Products
2. Internal Tax Protection
- Art 110(2)
- Permissive
1. Art 110(1) (Discrimination)
- Prohibition applies if: 1. Imported + Domestic products are similar
2. Discrimination
a. Similar Products: Characteristics, Method of Manufacturing, Consumer
Perception
Ex: Walker Case - Danish System different taxation Scotch/Fruit
Wine
Comm v France - light vs dark tobacco
b. Discrimination
- Direct: Tax scheme explicitly differentiates based on origin of
products
- Indirect: Not explicit but higher tax burden
- Ex: CAMPAIGN (Buy Irish)
- Humblot
- Comm v France
2. Art 110(2) (Proh of Protectionism)
- Applies if: 1. Imp/Dom are in competition
Ex: Comm vs UK (wine v beer)
Remedy
Art 110(1) → Equalize tax on similar products
Art 110(2) → Elimination protection effect
- Free movement of goods is secured through the elimination of customs duties and
quantitative restrictions and the prohibition of MEE
- Eliminating all obstacles to trade in the EU
- Right of free movement of goods originating in MS’s and goods from third countries in
free circulation
- The creation of the single market necessitated the elimination of all remaining obstacles
to the free movement of goods
- What did the EU do to abolish obstacles? → Fiscal and Non Fiscal Rules
Goods: Products which can be valued in money and which are capable, of forming the subject of
commercial transactions Commission v Italy 1968
- Ex: Waste, Electricity
Internal market: An area without frontiers in which the free movement of goods, persons,
services and capital is ensured
Legal basis: Art. 34/35 TFEU
ART 3 (3) + ART 26 TFEU → Definition of the IM
ART 28(1) → Customs Union
ART 29 TFEU→ Products considered to be in free circulation IF the import formalities
have been complied with and any customs duties/CEEs due have been
levied in a MS
- Case: Donckerwolcke
ART 30 TFEU → Customs duties on imports & exports & charges having equivalent
effect shall be prohibited between MS (Fiscal)
ART 34 TFEU→ Ban on quantitative restrictions on imports and measures that have an
equivalent effect (MEQR). (Non-Fiscal)
ART 35 TFEU → Ban on quantitative restrictions on exports and measures that have an
equivalent effect (Non-Fiscal)
ART 36 TFEU → Justifications
ART 110(1) TFEU → Prohibition of discrimination internal taxation (Fiscal)
ART 110(2) TFEU → Prohibition of protectionism
ART 114 TFEU→ Achievement of the IM
,Free movement of goods achievement through:
1. Prohibition of customs duties and charges of equivalent effect or CEEs (ART 30
TFEU)
2. Prohibition of quantitative restrictions and measures of equivalent effect or MEEs
(ART 4/36 TFEU)
3. Prohibition of discriminatory internal taxation (ART 110 TFEU)
→ all directly applicable EXCEPT Capital → Mutual recognition applied
Customs duties → Charges levied on goods by reason of the fact that they cross a frontier
between MS’s
Charges of Equivalent effect: ART 30
Diamonds 1969 (para 9) → Any pecuniary charge however small & whatever designation &
mode of application imposed on domestic or foreign goods, by
reason of fact they cross a frontier.
Quantitative restrictions: ART 34-35
Geddo 1973 → “Measures which amount to total or partial restraint of...imports, exports of goods
in transit”
MEQR: ART 34-35
Dassonville (par. 5) → ‘All trading rules enacted by MS which are capable of hindering, directly
or indirectly, actually or potentially, intra-community trade”
- Broad
- Buy Irish (para 25)
→ Inappropriate to consider statistical evidence as to the volume of imports of products
subject to the national measure (Campaign made imports rise)
- Trailers 2009 (para 37)
→ Added: “Any measure which hinders access to the market” also constitutes an MEE
Summary:
ART 30/110 → CEE
ART 34/35/36 → MEQR
Customs Union
Art. 28(1) TFEU → EU constitutes a customs union covering all trade in goods
- Uniform rules for goods coming from third countries
Ex: 1) A common customs tariff (ART 31 TFEU)
2) Common commercial policy in trade with third countries (ART 207 TFEU)
,Distinctly applicable measures: Makes a distinction
- Caught by Art 34
- Justified on Art 36
- Ex: Buy Irish / Comm v UK
Indistinctly applicable measures: Applies to imports, exports and domestic products
- Rule of Reason Principle (Mandatory Requirements)
- Cassis de Dijon
- Justified: Art 30 Derogations (Not exhaustive list)
Mutual recognition Cassis de Dijon (para 8)
Mutual recognition: Ensures market access for goods
- Guarantees that any good lawfully sold in one EU country can be sold in another
Justification to go against Mutual Recognition → Mandatory Requirements
- (Art 30 Derogations)
→ Possible even if the goods do not fully comply with the technical rules of the other country
Exceptions: When public safety, health or the environment are concerned
Selling Arrangements:→ Opinion of Tesauro Advocate General (C-292/92) (Par 9)
- Who / Where /When / How
- Not MEE Keck Case (Par 16)
- If discriminatory→ Then Yes MEE → Art 34
Product Requirement: Form, presentation, packaging, labeling, weight, size
- Keck Case (Par 15)
- Prohibited under Art 34 TFEU
- Justifications Art 36
- Is it proportionate?Comm vs Austria & Comm vs Germany
1. Suitable
- Appropriate to achieve?
2. Necessary
- Less restrictive means?
3. Balance
- Private vs public interest
, Justifications
1. Art 36
2. Mandatory Requirements
- Effectiveness of fiscal supervision, the protection of public health, the fairness
of commercial transactions and the protection of the consumer
- Established in Cassis De Dijon
Discrimination Tax
Art 110
- NO MS can impose direct or indirect taxation on import goods
2 Prohibitions: 1. Internal Discrimination Tax
- Art 110(1)
- Similar Domestic Products
2. Internal Tax Protection
- Art 110(2)
- Permissive
1. Art 110(1) (Discrimination)
- Prohibition applies if: 1. Imported + Domestic products are similar
2. Discrimination
a. Similar Products: Characteristics, Method of Manufacturing, Consumer
Perception
Ex: Walker Case - Danish System different taxation Scotch/Fruit
Wine
Comm v France - light vs dark tobacco
b. Discrimination
- Direct: Tax scheme explicitly differentiates based on origin of
products
- Indirect: Not explicit but higher tax burden
- Ex: CAMPAIGN (Buy Irish)
- Humblot
- Comm v France
2. Art 110(2) (Proh of Protectionism)
- Applies if: 1. Imp/Dom are in competition
Ex: Comm vs UK (wine v beer)
Remedy
Art 110(1) → Equalize tax on similar products
Art 110(2) → Elimination protection effect
