Free Movement Of Goods I Notes

A26(2) TFEU: ‘the internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties’ – 4 essential Freedoms of the internal market

• Goods defined very broadly – Commission v Italy (‘Italian Art’ case): goods = ‘can be valued in money and which are capable, as such, of forming the subject of commercial transactions’

• Rationale for FMG – removal of obstacles to the free circulation of goods btw MS: customs union comprising 2 principles (A28(1)TFEU): a free trade area, and the charging of a ‘common customs tariff on goods from outside EU

Treaty Provisions:

1. Article 30 TFEU: prohibition of customs duties and charges having equivalent effect (pecuniary);

2. Article 110 TFEU: prohibition of discriminatory taxation (Pecuniary)

3. Articles 34, 35 and 36 TFEU: prohibition of quantitative restrictions + all measures having equivalent effect (34, 35) and permissible derogations from this prohibition (36) (non-pecuniary)

Article 30 TFEU: Customs duties and charges having equivalent effect

‘Customs duties on imports and exports and charges having equivalent effect shall be prohibited btw MS. This prohibition should also apply to customs duties of a fiscal nature’

DE: A30 has DE (Van Gend en Loos) – VGL was able to invoke A30 to argue that customs duty was impermissible

Customs Duties: make imported goods more expensive relative to domestic goods: what matters is purpose – not effect - in the Italian Art case: Italian tax on the export of artistic heritage solely aimed at its retention was illegal as imposing duty on export of goods

Charges having equivalent effect: defined in Commission v Italy (‘Statistical Levy’): Italy imposed levy on imports/exports for the purpose of collecting statistical material which it claimed was benefiting traders: statistics were too general to be of benefit – no genuine benefit derived

• A pecuniary charge, however small: even a nominal charge (in Statistical Levy it was only 10 lire)

• Regardless of its designation and mode of application: the label that a MS attaches irrelevant

• Even if the charge is non-protectionist: In Sociaal Fonds voor de Diamantarbeiders v Chougol Diamond Co: charge on diamonds was a CEE even though Belgium didn’t produce diamonds – prohibited regardless of purpose

Charges that do not constitute a customs duty or a charge having equivalent effect: in some circumstances a charge on imports will not constitute a customs duty or CEE: outline by CJ in Commission v Germany:

1. Internal dues

• If this applies then tax will be evaluated under A10 rather than 30 as it will be an internal tax – Dansk Denkavit ApS v Danish Ministry of Agriculture: charge levied to fund cost of checking imported samples of foodstuffs for quality

• Bresciani v Ammministrazione Italiana delle Finanze: public health inspections on domestic and imported cowhides in public interest but different criteria for the levies of domestic /imports – so couldn’t be assessed as internal dues

2. Payments for services rendered

• Statistical Levy: any benefit to traders was too general and difficult to assess – so CEE

• Bresciani: benefiting the public so should have been paid by public purse -not a benefit to importers - CEE – also that domestic ones weren’t taxed the same amount

• Commission v Belgium (‘Customs Warehoues’) – charged for use of special warehouse where customs clearance could be completed: could not be regarded as consideration as a service actually rendered to importer

• Must be: 1. Consideration for service rendered; 2. Of benefit to the importer and 3. Amount charged is commensurate with the costs of the service provided

3. Inspection required by EU law

• Commission v Germany: fee to cover vet inspections on imported live animals – required under a D regulating protection of animals during international transport – not a CEE: 4 requirements – 1) charge must not exceed cost of inspection 2) inspection must be obligatory and uniform for all relevant products in the union 3) the inspections must be prescribed by EU law in the general interest of the union 4) must promote FMG, by neutralising obstacles that could have arisen from unilateral inspection measures

Inspections required by International conventions: same position applies to these (Commission v Netherlands)

Article 110 TFEU: Discriminatory Internal Taxation

• Designed to ensure that internal fiscal barriers to trade are eliminated

Direct Effect: A110 recognised as having DE in Lutticke (Alfons) GmbH v Hauptzollamt Saarlouis)

Scope of A110:

• Taxes regulated by A110 defined in Commission v France...

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