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Free Movement of Goods 1: Fiscal Barriers (Article 110(1) (has direct…
Free Movement of Goods 1: Fiscal Barriers
Key Treaty Provisions
Fiscal
Article 30 TFEU: Prohibition on customs duties and charges having equivalent effect (CEEs)
Article 110 TFEU: Prohibition of discriminatory and protectionist taxation because of impact on imported goods
Note: Art 30 is stricter than 110 because internal taxation has less of an impact on free movement
Definition of goods: "products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions" - so things you can sell
Commission v Italy (Art Treasures) - Italy wanted to narrow definition to exclude objects of archaeological and historical interest - denied as regardless of reason would still hinder trade
Distinguishing internal tax from CEE
Internal tax
Commission v France (levy on Reprogaphic Machinery)
System of internal dues
Applied irrespective of the origin of the products
Dansk Denkavit
Article 110
CEE
Commission v Italy (Statistical Levy)
Imposed unilaterally on domestic or foreign goods
By reason of crossing a frontier
Bresciani
Article 30
Article 30 (has direct effect)
Customs duty: "generally understood as charges levied on goods - whether imports or exports - on the crossing of a border"
Steiner & Woods EU Law
CEE: "any pecuniary charge... imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier and which is not a customs duty in the strict sense
Commission v Italy (Statistical Levy) - irrelevant factors...
Not imposed for the benefit of the state
Not discriminatory or protective in effect
The product on which the charge is imposed is not in competition with any domestic product
Size of charge
Designatin and mode of application
Examples of unlawful CEEs
Commission v Italy (Statistical Levy) - 10 lire fee to fund compilation of statistics - doesn't matter how small
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Sociaal Fonds voor de Diamantarbeiders (Diamond-workers' case) - levy on imported diamonds to fund benefits for diamond workers - doesn't matter if non-protectionist and not in competition with domestic product
Charges falling outside Article 30 (not defences or exceptions
Commission v Germany (Animal Inspections)
Related to general system of internal duties applied systematically to imported and domestic products alike
Lutticke
Proportionate fees for services in fact rendered to importer (not being made because of goods crossing a frontier)
Trader has requested the service - Commission v Belgium (Customs Warehouses)
Trader specifically benefits from the service
Commission v Italy (Statistical Levy)
Bresciani
Charge is proportionate to the costs of the service provided - Commission v Italy (Statistical Levy)
Charges for inspections carried out to fulfil EU law obligations
Does not exceed actual cost of inspection
Inspection is obligatory
Required in general interest of EU
Promotes free movement of goods
Also if inspections required by international treaty - Commission v Netherlands
Article 110(1) (has direct effect - Lutticke)
Applies to internal taxation
Prohibits
Discriminatory taxation
Protectionist taxation
Internal taxation: "general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products"
Commission v France (Levy on Reprogaphic Machinery)
Requirements - Article 101(1)
The imported and domestic products are similar
Rewe-Zentrale v Hauptzollampt - test for similarity
Similar characteristics at same stage of marketing or production
Meet the same needs from the point of view of consumers
Cases
Commission v France ('Spirits') - based on similar and comparable use - not whether products are strictly identical
John Walker Ltd/Denmark - Characteristics = objective test - needs = from point of view of the consumer
Commission v Denmark
Taxation must not discriminate against the imports
Direct
"Less favourable treatment of the imported product on the ground of its origin" - less favourable treatment is on the face of the measure ('in law')
Barnard, The Substantive Law of the EU
Will not be justified - e.g. Commission v Italy (Regenerated Oil)
Indirect
On its face ('in law') makes no reference to origin - but in reality ('in fact') burdens imported goods
Barnard
Cases
Humblot - found discrimination
Commission v Greece - no discrmination found
Commission v Denmark - found discrimination
Chemical Farmaceuti - can be objectively justified
Tax must differentiate between products on the basis of objective criteria
Must pursue economic policy objectives compatible with EU law
Detailed rules must not discriminate
"No MS shall impose, directly or indirectly, on the products of other MS any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products"
Article 110(2) - to be used if products aren't similar
"No MS shall impose on the products of other MS any internal taxation of such a nature as to afford indirect protection to other products"
Products that fall within - Commission v France ('Spirits')
"Products which, without being similar... are nevertheless in competition, even partial, indirect or potential, with certain goods of the importing country"
Prohibits taxation which has protective effect - Commission v Belgium
Essential question = whether reduces even potential consumption of imported products to the advantage of competing domestic products
Cases
Commission v UK
Commission v Belgium