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Free movement of Goods creation of single market (harmonisation of…
Free movement of Goods creation of single market
removal of existing barriers (negative integration)
monetary barriers or discriminatory
custom duties 28 + 30
30
customs duties and CEE :forbidden: also custom duties of fiscal nature :forbidden:
CEE to custom duties
its effect not purpose of levy that matters
whether the sum has become payable due to the fact that goods have crossed border within the EU
strict application
exception
a proportionate payment for genuine administrative service
its charge for inspection req by EU or international law
charge falling within scope of internal taxation
applies equally to domestic and imported goods; origin neutral
art110 not 30
CEECD 28+30
Jersey Produce Marketing v States of jersey
purely internal situation can cause breach. no cross border element compulsory :check: reg and enter into market agreement with a body e.g jersey potato export market board - art 35 breach
discriminatory internal taxation on imported goods 110
favors domestic products over imports from other MSs.
fiscal neutrality :check:
tax on imported goods which is more than that imposed directly or indirectly on similar domestic goods :forbidden: art 110(1)
internal taxation which gives indirect protection to domestic goods :forbidden: art 110(2)
similar or competing?
similar
commission v UK (wine n beer)
not similar. diff raw materials n characteristics
strict equivalence in tax
competing
whether products fulfilling same consumer needs
rates such that there is no protective effect for competing domestic product
direct discrimination
different tax due to
origin
home produced
imported
indirect discrimination
no reference to origin but is based on a features that in practice only occurs in imported goods - need to prove protective effect
QRs / MEQRs 34 + 35
.
state monopolies of commercial character 37
non monetary N may be excuseable
art 34 - 35
QRs
quotas :forbidden:
distinctly applicable measures - only apply to imported goods
indistinctly applicable measures
generally legal unless they are out of proportion and other means are available to achieve same purpose which are less hindrance
proportionality test
MEQRs
cover measures which are not discriminatory in law but are in fact
indistinctly applicable measures - apply w/o discrimination to dom and imported goods
Procureur du Roi v Dassonville
scottish whiskey w/o certificate or origin. easier for domestic importer to comply with :no_entry:
hindrance not discrimination is focus
Cassis de dijon -
IAM
dual burden
mutual recognition - goods lawfully produced and marketed in one MS should be freely marketed in all the others
where no harmonised rule on matter in Q
MS can have their own rules for domestic goods and only req imported goods compliance if
rule applies equally
mandatory requirement - essential public interest
only IAMs
5 more items...
proportionate
versus art 36
art 36
both DAMs and IAMs
DAMS - discriminatory
2 more items...
IAMs
2 more items...
consumer protection art 36 :forbidden:
IAMS for exports :forbidden:
Keck rule
art 34
1 more item...
1 more item...
derogation under art 36
justified as long as they are proportionate
grounds
public policy
not be for purely eco reasons
public security
Campus oil
maintenance of reg oil supplies
necessary and proportionate - above market price
public morality
not be used as arbitrary discrimination or disguised restriction Conegate v HM customs and excise - inflated love dolls UK
public health (humans, animals and plants)
risk to health is genuine or disguised as trade restriction
delay = hindrance
any test already complied with? if insufficient - additional :check:
available scientific evidence - precautionary principle
necessary and proportionate
apply to distinctly and indistinctly applicable measures
harmonisation of national rules (positive integration)
introduction of eu wide rules and standards
exclusive competence
customs union
monetory policy
competition policy
international agreements
shared competence
internal market
social policy
environment
consumer protection
transport
energy
security and justice
ART 114
union does not have general power to regulate internal market
Germany v Parli and Council (tobacco ads)
public health basis :forbidden:
harmonisation on other basis does not preclude it from having effect on human health protection
rule will genuinely improve the conditions for the establishment and functioning of the internal market
remove obstacle due to divergent national laws
remove appreciable distortions of competition
other indirect harmonisation forms
mutual recognition in cassis de dijon
derogation
art 36
cassis de dijon mandatory requirements
when fully harmonised EU rule exists :forbidden:
partial harmonisation
Sandoz
additives in food not dealing with vitamins
MS allowed to use own rules justified under art 36
14(4) protection of environment or working environment
14(5) new scientific evidence basis
arbitrary discrimination or disguised restriction
must be necessary and specific to its territory