EU Law - The fundamental freedoms: free movement in the single market
PART 1 - Free Movement of Goods
Free movement
- Protected in the EU via a combination of:
- Treaty Articles
- secondary legislation (harmonisation Directives)
- and case law
Article 26 TFEU:
- Defines the internal market as ‘an area without internal frontiers in which the free
movement of goods, persons, services and capital is ensured’
Article 34 TFEU (ex Article 28-30 TEC)
- Free movement of ‘goods’
- ‘Products which can be valued in money and which are capable, as such,
of forming the subject of commercial transactions’ (Commission v Italy)
- Facts:
- The Commission asked Italy to abolish a tax on the export of
art treasures.
- Italy argued that national law only applied to a specific
category of goods which didn’t fall under an EEC Treaty
provision.
- Issue:
- Are historical, artistic and archaeological items ‘goods’?
- Held:
- The items were considered goods, and Italy had to remove
the tax to comply with Treaty obligations (no imposition of
new customs duties on imports or exports)
- Bans:
- QRs - Quantitative restrictions on goods, ‘according to circumstances,
imports, exports or goods in transit’
- Defined in Geddo
- Facts:
- Italy imposed a contract duty on purchasers of Italian
rice to aid a national rice organisation
- Issue:
- Defined QRs
- Held:
, - EU legislation prohibits QRs (via bans on imports
from other MSs, or quotas)
- MEQRs - All measures having equivalent effect to quantitative restrictions
- Defined in Dassonville
- Facts:
- Importers of whisky from France into Belgium subject
to MEQRs because it was more difficult for them to
get certificate of origin than for an importer who
imported directly from producer country
- MEQR definition: ‘All trading rules enacted by MSs which
are capable of hindering, directly or indirectly, actually or
potentially, intra-community [intra-EU] trade’
- Some measures that seem to come under the above
definition are ok according to the Keck principle (see
below)
- Only have to be capable of hindering trade, do not have to actually
impede trade
- Applied in Commission v Ireland
- Facts:
- Private company controlled by Irish gov’t
organised a ‘Buy Irish’ campaign including a
publicity campaign overseen by the Irish
Goods Council
- Issue:
- Even though this wasn’t a QR (empirically
defined quota or tariff), by being capable of
restraining imports from other MSs, did this go
against Article 30 TEC (now Article 34 TFEU)
- Held:
- Was against Treaty as an MEQR, defined
above
- MEQRs do not have to have actually affected
imports/exports, just have to be capable of
doing so
- MEQRs do not have to be enforced by legally
binding national legislation, can be non-
binding, as long as there is sufficient state
involvement
Article 45 TFEU (ex Article 39 TEC)
- Free movement of employed people
,Article 49 TFEU (ex Article 43 TEC)
- Freedom to set up a business in any MS
Article 56 TFEU (ex Article 49 TEC)
- Freedom to provide services in any MS
- Remedies - state liability
- If national laws breach any of these Treaties, a person/company can sue
the MS for the losses it suffered as a result of the breach
- Principle established in Factortame 4
Free Movement of Goods (protected by Article 34 TFEU)
EU methods of maintaining free movement of goods:
- 1) Customs Union (established in Articles 28-30 TFEU)
- No customs duties/taxes on imports/exports btw MSs
- 2) Eliminating discriminatory taxation (as per Article 110 TFEU)
- National internal tax systems cannot discriminate against imports from
other MS or indirectly protect domestic goods
- 3) Non-financial restrictions
- Can relate to product safety, electrical standards, license requirements…
Keck case:
- ECJ aimed to narrow the applicability of Article 34 TFEU, so revised Cassis to
limit the number of challenges to national laws on the basis of Article 34 TFEU
- Traders were increasingly using Article 34 TFEU to challenge laws which
limit commercial freedom, regardless of whether it is aimed at imports
- Mentioned in para 14 of Keck judgement
- Keck
- Facts:
- Challenge to a French law that banned retailers from selling items
at a loss on the grounds that the law was an MEQR as it restricted
the volume of sales and so reduced sales of imported goods
- Issue:
- Is Article 34 TFEU applicable to national laws on pure selling
arrangements?
- Held:
, - Article 34 TFEU (and by extension Article 36 TFEU exceptions)
will not apply to selling arrangements IF:
- 1) the laws apply to all traders in that national territory
- 2) The measure must affect domestic goods and foreign
imports the same way in fact as well as in law
- Selling arrangements (not MEQRs and Article 34 TFEU doesn’t apply) (as per
Keck):
- Definition: regulate how, when or where goods can be sold, marketed
or advertised.
- Criteria:
- 1) Not MEQRs
- 2) Must apply to all traders (cannot be directly applicable)
- 3) Must affect the marketing of domestic and imported products
equally - in law AND fact (i.e. actually have the same impact, not
just in theory/law)
- Static selling arrangements: national laws restricting shop opening
hours and days (e.g. historical Sunday trading laws in the UK), or the
premises from which they may be sold, or selling age restrictions
- Punto Casa v Capena (shop opening hour restrictions)
- Facts:
- Challenge to an Italian trading law demanding shop
closure on Sundays and public holidays
- Held:
- Rule deemed to relate to a pure selling arrangement,
so Article 30 TEC (now Article 34 TFEU) does not
apply
- Dynamic selling arrangements: advertising/marketing restrictions
(providing that importers are not adversely affected)
- E.g. Leclerc
- Facts:
- Challenge to French rules which banned fuel ads on
French TV
- Argued that these rules were MEQRs as they
adversely affected imported fuels
- Issue:
- MEQR (under Article 34 TFEU and subject to Article
36 TFEU exceptions) or pure selling arrangement?
- Held:
- Deemed selling arrangement (not subject to Article 34
TFEU)
PART 1 - Free Movement of Goods
Free movement
- Protected in the EU via a combination of:
- Treaty Articles
- secondary legislation (harmonisation Directives)
- and case law
Article 26 TFEU:
- Defines the internal market as ‘an area without internal frontiers in which the free
movement of goods, persons, services and capital is ensured’
Article 34 TFEU (ex Article 28-30 TEC)
- Free movement of ‘goods’
- ‘Products which can be valued in money and which are capable, as such,
of forming the subject of commercial transactions’ (Commission v Italy)
- Facts:
- The Commission asked Italy to abolish a tax on the export of
art treasures.
- Italy argued that national law only applied to a specific
category of goods which didn’t fall under an EEC Treaty
provision.
- Issue:
- Are historical, artistic and archaeological items ‘goods’?
- Held:
- The items were considered goods, and Italy had to remove
the tax to comply with Treaty obligations (no imposition of
new customs duties on imports or exports)
- Bans:
- QRs - Quantitative restrictions on goods, ‘according to circumstances,
imports, exports or goods in transit’
- Defined in Geddo
- Facts:
- Italy imposed a contract duty on purchasers of Italian
rice to aid a national rice organisation
- Issue:
- Defined QRs
- Held:
, - EU legislation prohibits QRs (via bans on imports
from other MSs, or quotas)
- MEQRs - All measures having equivalent effect to quantitative restrictions
- Defined in Dassonville
- Facts:
- Importers of whisky from France into Belgium subject
to MEQRs because it was more difficult for them to
get certificate of origin than for an importer who
imported directly from producer country
- MEQR definition: ‘All trading rules enacted by MSs which
are capable of hindering, directly or indirectly, actually or
potentially, intra-community [intra-EU] trade’
- Some measures that seem to come under the above
definition are ok according to the Keck principle (see
below)
- Only have to be capable of hindering trade, do not have to actually
impede trade
- Applied in Commission v Ireland
- Facts:
- Private company controlled by Irish gov’t
organised a ‘Buy Irish’ campaign including a
publicity campaign overseen by the Irish
Goods Council
- Issue:
- Even though this wasn’t a QR (empirically
defined quota or tariff), by being capable of
restraining imports from other MSs, did this go
against Article 30 TEC (now Article 34 TFEU)
- Held:
- Was against Treaty as an MEQR, defined
above
- MEQRs do not have to have actually affected
imports/exports, just have to be capable of
doing so
- MEQRs do not have to be enforced by legally
binding national legislation, can be non-
binding, as long as there is sufficient state
involvement
Article 45 TFEU (ex Article 39 TEC)
- Free movement of employed people
,Article 49 TFEU (ex Article 43 TEC)
- Freedom to set up a business in any MS
Article 56 TFEU (ex Article 49 TEC)
- Freedom to provide services in any MS
- Remedies - state liability
- If national laws breach any of these Treaties, a person/company can sue
the MS for the losses it suffered as a result of the breach
- Principle established in Factortame 4
Free Movement of Goods (protected by Article 34 TFEU)
EU methods of maintaining free movement of goods:
- 1) Customs Union (established in Articles 28-30 TFEU)
- No customs duties/taxes on imports/exports btw MSs
- 2) Eliminating discriminatory taxation (as per Article 110 TFEU)
- National internal tax systems cannot discriminate against imports from
other MS or indirectly protect domestic goods
- 3) Non-financial restrictions
- Can relate to product safety, electrical standards, license requirements…
Keck case:
- ECJ aimed to narrow the applicability of Article 34 TFEU, so revised Cassis to
limit the number of challenges to national laws on the basis of Article 34 TFEU
- Traders were increasingly using Article 34 TFEU to challenge laws which
limit commercial freedom, regardless of whether it is aimed at imports
- Mentioned in para 14 of Keck judgement
- Keck
- Facts:
- Challenge to a French law that banned retailers from selling items
at a loss on the grounds that the law was an MEQR as it restricted
the volume of sales and so reduced sales of imported goods
- Issue:
- Is Article 34 TFEU applicable to national laws on pure selling
arrangements?
- Held:
, - Article 34 TFEU (and by extension Article 36 TFEU exceptions)
will not apply to selling arrangements IF:
- 1) the laws apply to all traders in that national territory
- 2) The measure must affect domestic goods and foreign
imports the same way in fact as well as in law
- Selling arrangements (not MEQRs and Article 34 TFEU doesn’t apply) (as per
Keck):
- Definition: regulate how, when or where goods can be sold, marketed
or advertised.
- Criteria:
- 1) Not MEQRs
- 2) Must apply to all traders (cannot be directly applicable)
- 3) Must affect the marketing of domestic and imported products
equally - in law AND fact (i.e. actually have the same impact, not
just in theory/law)
- Static selling arrangements: national laws restricting shop opening
hours and days (e.g. historical Sunday trading laws in the UK), or the
premises from which they may be sold, or selling age restrictions
- Punto Casa v Capena (shop opening hour restrictions)
- Facts:
- Challenge to an Italian trading law demanding shop
closure on Sundays and public holidays
- Held:
- Rule deemed to relate to a pure selling arrangement,
so Article 30 TEC (now Article 34 TFEU) does not
apply
- Dynamic selling arrangements: advertising/marketing restrictions
(providing that importers are not adversely affected)
- E.g. Leclerc
- Facts:
- Challenge to French rules which banned fuel ads on
French TV
- Argued that these rules were MEQRs as they
adversely affected imported fuels
- Issue:
- MEQR (under Article 34 TFEU and subject to Article
36 TFEU exceptions) or pure selling arrangement?
- Held:
- Deemed selling arrangement (not subject to Article 34
TFEU)
