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Free Movement of Goods art.28 negative integration, : - Coggle Diagram

- - - - Tariff-barriers (financial restrictions)
        
        Art.30
        
        Customs Duties
        (basically extinct)
        
        Charges having equivalent effect
        
        Statistical Levy
        
        pecuniary charge: a payment in money (for either imports or exports)
        
        imposed unilaterally: it is a state act,not an agreement or a payment for a service
        
        when the goods cross a frontier: between two MS,but even within one MS (Carbonati)
        
        however small and whatever its designation: the name and the sum do not matter (e.g. statistics; Diamantarbeiders C-2 and 3/69)
        
        Com v Lux & Bel (gingerbread)
        
        art.110 Taxation
        
        a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin or destination of the products.” Carbonati Apuani [2004]
        
        Article [110 TFEU] must guarantee the complete neutrality of internal taxation…” De Danske Bilimportører [2003]
        
        Article 110(1): similar products – discrimination
        Test: difference in tax burden Comm v. France spirits
        Johnnie Walker factual comparison of products
        
        if similiar and
        
        direct discrimination = violation
        
        indirect violation = violation but can be justified
        
        Article 110(2): products in competition – protective effect
        Test: protective effect = difference + favours domestic production (influences market; reduce consumption imported products) -> cross-elasticity
        Comm v. France spirits
        
        consumers switch: in competition
        if protective effect - violation
        
        Humblot neutral tax
        The resultant additional taxation is liable to cancel out the advantages which certain cars imported from other Member States might have in consumers’ eyes over comparable cars of domestic manufacture, particularly since the special tax continues to be payable for several years. In that respect the special tax reduces the amount of competition to which cars of domestic manufacture are subject and hence is contrary to the principle of neutrality with which domestic taxation must comply
        
        De Danske Bilimportører [2003]
        Article 110 TFEU “cannot be invoked against internal taxation imposed on imported products where there is no similar or competing domestic production
      - Non-tariff barriers (quantitative restrictions)
        art.34 TFEU
        
        Quantitative Restrictions
        Geddo: unilateral measures amounting to a total or partial restraint of imports, exports or goods in transit
        -- more or less extinct, but bans still exist
        
        Measures having equivalent effect
        Dassonville: All trading rules enacted by MS which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade are to be considered as measures having an effect equivalent to quantitative restrictions
        
        Dassonville still unclear
        Regulation as such a restriction?
        
        Capable of hindering..
        Effect based approach, no deminimis
        
        Direct discrimination = distinctly applicable measures
        explicitly differentiate based on origin
        e.g. buy national campaigns
        
        Indirect discrimination = indistinctly applicable measures but discriminatory effect e.g. buy local campaigns
        
        Product requirements Cassis de Dijon: mutual recognition
        rules on product’s name, shape, measurements, weight, composition, labelling, packaging,…. (see para. 15 Keck)
        
        Walter Rau (Margarine shape)
        dual regulatory burden = obstacle
        Commission v Germany (Beer purity) C-178/84
        Commission v France (foie gras) C-184/96
        
        Product use restrictions Italian Trailers
        a prohibition on the use of a product in the territory of a MS has a considerable influence on the behaviour of consumers, which, in its turn, affects the access of that product to the market of that MS
        such a rule hinders the importation -- but was justified by road safety
        
        Selling arrangements? how to sell products?
        advertising, door to door selling, opening time of shop etc
        Dir. 70/50/EEC: “restrictive effect of such measures on FMG does not exceed the effects intrinsic to trade rules”= do not impede marketing of imported products more than marketing of national products
        
        ECJ cannot decide whether to reject under step 1 or steps 2/3
        
        Cinéthèque [1985] “[Art 34] does not apply to national legislation which … provided that … [legitimate aim, proportionality]”
        
        Torfaen (Sunday trading) [1989] “… it must be recalled that in its [Cinéthèque] judgment, the Court held, with regard to …, that such a prohibition was not compatible with the principle of FMG … unless … [legitimate aim, proportionality]”
        
        Keck & Mithouard -> CERTAIN SELLING ARRANGEMENTS
        ECJ expressly reconsiders existing case-law: provisions restricting or prohibiting certain selling arrangements is not such as to hinder trade between MS within the meaning of the Dassonville judgment IF
        
        those provisions apply to all relevant traders operating within the national territory
        
        they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other MS
        
        1 more item...
    - - Groenveld: That provision concerns national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the State in question at the expense of the production or of the trade of other Member States.
        This is not so in the case of a prohibition like that in question which is applied objectively to the production of goods of a certain kind without drawing a distinction depending on whether such goods are intended for the national market or for export
      - Gysbrechts repetition of Groenveld but
        indistinctly applicable but “its actual effect is nonetheless greater on goods leaving the market of the exporting MS -> MEE on exports
- - - - no justifications
      - Exceptions
        
        remuneration for a specific service actually rendered of sum in proportion to the service
        
        cost of inspection required by EU law
        
        internal taxation art.110
        
        Justifications:
        
        no discriminatory or protective effect IF based on ‘objective criteria unrelated to the good’s origin’
    - - art.36
        transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property
        +proportionality (= appropriate and necessary)
        
        Closed list & strictly interpreted
        invoked for all measures
      - Rule of Reason Cassis de Dijon
        (1) necessary to satisfy mandatory requirements in public interest
        (2) proportionality
        
        open list
        ONLY accepted for non-discriminatory
        and indistincly applicable measures
        See art.4(8) Services Directive for legitimate aims
        does not include economic interests Heimdienst
        
        Critique: outdated; too harsh; can be good reasons to differentiate on basis of origin to protect a public interest
        
        Turn in case law: Allows application of rule of reason for distinctly applicable measures for envi protection: art.11 TFEU envi prot significant
        Environmental protection sometimes requires to make a distinction on the basis of origin
        court employs different tactics
        
        Reinterpret/deny discriminatory character (even though national clearly distinguishes between national and imported goods)(Walloon Waste)
        Walloon waste and imported waste is not the same, due to treat harm at source principle, they are not the same and should not be treated the same (paras 34,36)
        
        Invoke (simultaneously) Art. 36 ‘protection of health’ (Essent)
        ignores discrimination + combines with Art. 36 TFEU
        paras 98, 101
        
        Ignore discriminatory character to apply justification (Essent, BP France)
        BP paras 62-65, 74-75 no combi with art.36 unlike Essent BUT difference in treatment taken into account in proportionality test
- - - - Art Treasures understood products which can be valued in money and which are capable, as such, of forming the subject of commercial transaction.”
        
        Also little or even ‘negative’ value C-2/90 Walloon Waste
    - - Dassonville:
        All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as [MEEs]”
        -> broad understanding of trading rules
    - - Carbonato Apuani
        not in trade between Member States alone, but more broadly throughout the territory of the customs union