Cases:
W1: F.R.: 2-3
W2: Q.R.: 4-7
W3: Persons: Entry & Residence: 8-10
W4: Persons: Equal Treatment: 11-12
W5: Persons: services/establishment/capital: 13-14
W6: Competition: Agreement/ CPs: 15-16
W7: Competition: State aid: 17-18
1
,W1: Persons: financial restrictions
What is an internal market?
- Bringing conditions as close as possible to those of a genuine internal market (Case 15/81
Gaston Schul).
- CJEU 15/81 Schul: Internal market (common market, single market)
- 26 TFEU: an area without internal frontiers and free movements of goods, persons, services
and capital.
- Art. 2-4 TEU
- Opinion AG Maduro Joined Cases C-158/04:
o Freedoms of movement essential elements of the fundamental status of nationals of
the MS
o Task of court: make sure MS do not adopt measures that lead to cross-border
situations being treated less favourably than purely national situations.
- à Negative integration/ removal of barriers.
Goods
- Products valued in money/ subject to commercial transaction à Commission v. Italy C-7/68.
Art treasures.
- Goods: possess tangible physical characteristics. Jägerskiöld/ Fennelly C-79/98
o Electricity is a good (Almelo C-393/92)
o Fishing license not (Jagerskiold v Gustafsson C-97/98)
o Lottery tickets not (Schindler C-275/92).
Art. 30 TFEU: customs duty
- Strict interpretation by the court.
- Any breach will be unlawful PER SE and cannot be justified under Art. 36 TFEU.
- However, 2 exceptions.
- Commission v. Italy C-7/68: CJEU looks at the effect rather that the purpose of the duty or
charge.
o Italy: protect treasures/ not revenue
o CJEU: UNLAWFUL: export trade in the goods in question was hindered by pecuniary
burden which it imposed on the price of the exported goods.
- CJEU Sociaal Fonds voor Diamantarbeiders C2&3-69.
o Purpose: neither raise money/ protect domestic industry
o UNLAWFUL: charge was imposed on goods because they had crossed a border.
- CEEs (Charges having Equivalent Effects/ Disguised Restrictions)
o Commission v. Italy (Statistical Levy case) Case 24/68.
o UNLAWFUL
o Any charge which is imposed unilaterally on domestic or foreign goods by reason of
the fact that they cross a frontier
o Even if
§ it is not imposed for the benefit of state
§ it is not discriminatory
§ it is not protective in effect
§ if it is not in competition with any domestic products
o CEEs for import and export! Co-operative Co-Frutta Srl C-193/85.: any charge having
equivalent effect covers any charge exacted at the time of or an account of
importation which, being borne specifically by an imported product to the exclusion
of the similar domestic product … and has the result of altering the cost price of the
imported product thereby producing the same restrictive effect on the free
movement of goods as a customs duty.
2
, Exceptions:
1. When the charge is a payment for a service rendered (given) to the importer/exported.
• Commission v. Belgium (warehousing) C-132/82.
o Specific and direct benefit actually conferred
o Payment in proportion to the service
o Inspections in the general interest are not a service rendered to the
importer
2. When the charge is payment for an inspection that is mandatory under EU law.
• Commission v. Germany (live animals) C-18/87.
• Inspections mandated by EU law must:
o Not exceed the actual costs of the inspections
o Be obligatory and uniform
o In the general interest of the Union
o Promote the free movement of good
• à Criteria satisfied: charge levied will not be classified as CEE.
(if it is absolutely clear, do not mention the conditions. Otherwise use the conditions).
Art. 110 TFEU: Internal taxation
- MS are allowed to impose neutral taxes (is directly effective). Case 57/65 Lütticke.
- CJEU: complete neutrality of internal taxation with regard to domestic and imported
products.
- Aim: prevent 28-30 TFEU being undermined by discriminatory internal taxation.
- TAX: a charge is an internal tax… if it related to a general system of internal dues applied
systematically to categories of products in accordance with objective criteria irrespective of
the origin of the products. CJEU Co-Frutta C-193/85 and CJEU Denkavit C-170/85.
- MS are free to subject products to a system of tax/ compatible with 110 TFEU if it is free
from any discriminatory or protective effects (CJEU Humblot C-112/84).
Question 1: Is there a reason for the distinction unrelated to origin?
YES: No violation of 110 TFEU
- Natural sweet wine (Com v. France C-196/85)
- Synthetic ethyl alcohol (Chemical Pharmaceutical SpA C-140/79).
- Cars (Com v. Greece C-132/88)
- Gambling machines (Bergandi C-252/86) à Q2à
SIMILAR? (1)
- Whisky v. Fruit liquor: Not similar. John Walker C-243/84.
- Similar: similar characteristics and meet the same needs from the view of consumers. Rewe
Zentrale Case 120/78.
- Wine from fruit and wine from grapes: similar. Com. v Denmark C-33/76.
o Same basic product and process
o Taste and alcohol content are similar
o Both met the same needs of consumers.
- Bananas versus other fruit: not similar. Com. v Italy C-184/85.
Similarity: yes? à Is there discrimination?
- Direct discrimination: related to origin/ prohibited/ no justification
- Indirect discrimination: prohibited unless objectively justified/proportionate (Humblot, Cars)
Breach? à MS must equalise the tax regime. (Not unlawful like 30 TFEU).
COMPETITION? (2)
Economic test! Cross-elasticity/ product substitutability. (CJEU Com v UK C-170/78 (Beer/wine)). Do
consumers switch when the good gets more expensive.
Degree is low: large difference in tax will give rise. Degree is high: compete/ the protective effect
must be taken away.
Breach? à MS required to remove the protective control. (Not unlawful like 30 TFEU).
3
W1: F.R.: 2-3
W2: Q.R.: 4-7
W3: Persons: Entry & Residence: 8-10
W4: Persons: Equal Treatment: 11-12
W5: Persons: services/establishment/capital: 13-14
W6: Competition: Agreement/ CPs: 15-16
W7: Competition: State aid: 17-18
1
,W1: Persons: financial restrictions
What is an internal market?
- Bringing conditions as close as possible to those of a genuine internal market (Case 15/81
Gaston Schul).
- CJEU 15/81 Schul: Internal market (common market, single market)
- 26 TFEU: an area without internal frontiers and free movements of goods, persons, services
and capital.
- Art. 2-4 TEU
- Opinion AG Maduro Joined Cases C-158/04:
o Freedoms of movement essential elements of the fundamental status of nationals of
the MS
o Task of court: make sure MS do not adopt measures that lead to cross-border
situations being treated less favourably than purely national situations.
- à Negative integration/ removal of barriers.
Goods
- Products valued in money/ subject to commercial transaction à Commission v. Italy C-7/68.
Art treasures.
- Goods: possess tangible physical characteristics. Jägerskiöld/ Fennelly C-79/98
o Electricity is a good (Almelo C-393/92)
o Fishing license not (Jagerskiold v Gustafsson C-97/98)
o Lottery tickets not (Schindler C-275/92).
Art. 30 TFEU: customs duty
- Strict interpretation by the court.
- Any breach will be unlawful PER SE and cannot be justified under Art. 36 TFEU.
- However, 2 exceptions.
- Commission v. Italy C-7/68: CJEU looks at the effect rather that the purpose of the duty or
charge.
o Italy: protect treasures/ not revenue
o CJEU: UNLAWFUL: export trade in the goods in question was hindered by pecuniary
burden which it imposed on the price of the exported goods.
- CJEU Sociaal Fonds voor Diamantarbeiders C2&3-69.
o Purpose: neither raise money/ protect domestic industry
o UNLAWFUL: charge was imposed on goods because they had crossed a border.
- CEEs (Charges having Equivalent Effects/ Disguised Restrictions)
o Commission v. Italy (Statistical Levy case) Case 24/68.
o UNLAWFUL
o Any charge which is imposed unilaterally on domestic or foreign goods by reason of
the fact that they cross a frontier
o Even if
§ it is not imposed for the benefit of state
§ it is not discriminatory
§ it is not protective in effect
§ if it is not in competition with any domestic products
o CEEs for import and export! Co-operative Co-Frutta Srl C-193/85.: any charge having
equivalent effect covers any charge exacted at the time of or an account of
importation which, being borne specifically by an imported product to the exclusion
of the similar domestic product … and has the result of altering the cost price of the
imported product thereby producing the same restrictive effect on the free
movement of goods as a customs duty.
2
, Exceptions:
1. When the charge is a payment for a service rendered (given) to the importer/exported.
• Commission v. Belgium (warehousing) C-132/82.
o Specific and direct benefit actually conferred
o Payment in proportion to the service
o Inspections in the general interest are not a service rendered to the
importer
2. When the charge is payment for an inspection that is mandatory under EU law.
• Commission v. Germany (live animals) C-18/87.
• Inspections mandated by EU law must:
o Not exceed the actual costs of the inspections
o Be obligatory and uniform
o In the general interest of the Union
o Promote the free movement of good
• à Criteria satisfied: charge levied will not be classified as CEE.
(if it is absolutely clear, do not mention the conditions. Otherwise use the conditions).
Art. 110 TFEU: Internal taxation
- MS are allowed to impose neutral taxes (is directly effective). Case 57/65 Lütticke.
- CJEU: complete neutrality of internal taxation with regard to domestic and imported
products.
- Aim: prevent 28-30 TFEU being undermined by discriminatory internal taxation.
- TAX: a charge is an internal tax… if it related to a general system of internal dues applied
systematically to categories of products in accordance with objective criteria irrespective of
the origin of the products. CJEU Co-Frutta C-193/85 and CJEU Denkavit C-170/85.
- MS are free to subject products to a system of tax/ compatible with 110 TFEU if it is free
from any discriminatory or protective effects (CJEU Humblot C-112/84).
Question 1: Is there a reason for the distinction unrelated to origin?
YES: No violation of 110 TFEU
- Natural sweet wine (Com v. France C-196/85)
- Synthetic ethyl alcohol (Chemical Pharmaceutical SpA C-140/79).
- Cars (Com v. Greece C-132/88)
- Gambling machines (Bergandi C-252/86) à Q2à
SIMILAR? (1)
- Whisky v. Fruit liquor: Not similar. John Walker C-243/84.
- Similar: similar characteristics and meet the same needs from the view of consumers. Rewe
Zentrale Case 120/78.
- Wine from fruit and wine from grapes: similar. Com. v Denmark C-33/76.
o Same basic product and process
o Taste and alcohol content are similar
o Both met the same needs of consumers.
- Bananas versus other fruit: not similar. Com. v Italy C-184/85.
Similarity: yes? à Is there discrimination?
- Direct discrimination: related to origin/ prohibited/ no justification
- Indirect discrimination: prohibited unless objectively justified/proportionate (Humblot, Cars)
Breach? à MS must equalise the tax regime. (Not unlawful like 30 TFEU).
COMPETITION? (2)
Economic test! Cross-elasticity/ product substitutability. (CJEU Com v UK C-170/78 (Beer/wine)). Do
consumers switch when the good gets more expensive.
Degree is low: large difference in tax will give rise. Degree is high: compete/ the protective effect
must be taken away.
Breach? à MS required to remove the protective control. (Not unlawful like 30 TFEU).
3
