EU law Lumsa University Prof Chiara Cellerino Week

EU law Lumsa University, Prof. Chiara Cellerino Week 7

Common market “Elimination of all obstacles to intra. Community trade in order to merge the national markets into a single market bringing about conditions as close as possible to those of a genuine internal market” (Case C 15/81, Gaston Schul) • Chiara Cellerino© 2017 • 2

Internal market - negative intergation “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” (art. 26. 2 TFEU) - positive integration (since Single European Act) “The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties” (art. 26. 1 TFEU). Chiara Cellerino© 2017 3

Custom Union • art 28 TFEU - prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect (internal dimension) - adoption of a common customs tariff in their relations with third countries (+ common commercial policy, external dimension ) • Chiara Cellerino© 2017 • 4

Goods in free circulation “Products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State” (art. 29 TFEU) Assimilated to goods originated in MS • Chiara Cellerino© 2017 • 5

What is a good? • “products which can be valued in money and which are capale, as such, of forming the subject of commercial transactions” (Case 7/68, Commission v. Italy) • includes: - any merchandise (disks, books, food etc. . . ) - works of art - electricity - waste - human blood and other part of human body - drugs - banknotes and coins only if not valid currency • Chiara Cellerino© 2017 • 6

Free movement of goods provisions • addressed to MS (do not apply to contracts between private parties) • prohibition of: 1) duties and charges haven quivalent effect (CEEs) - art. 30 TFEU 2) internal discriminatory taxation - art. 110 TFEU 3) quantitative restrictions and measurs having equivalent effects (MEEs) - art. 34 -36 TFEU • Chiara Cellerino© 2017 • 7

Custom duties and CEEs • Custom duties: charges levied on goods by reason of the fact that they cross the frontier between MSs • any other charge having equivalent effect (raising costs of imported/exported goods) • no need to prove discrimination or protective purpose (Belgium dimonds case) • also internal to MS territory (Carbonati Apuani case) • Permissible if: • consideration for a service rendered • inspection imposed by EU law • Chiara Cellerino© 2017 • 8

Discriminatory taxation • art. 110 TFEU : • No Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess of that imposed directly or indirectly on similar domestic products. • Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a nature as to afford indirect protection to other products. • neet to ensure neutrality of taxation systems • Chiara Cellerino© 2017 • 9

art. 110(1) TFEU • similar products: • objective caracteristics such as origin, method of manufacture, properties, content + consumer needs they satisfy • Johnnie Walker case (Danish different taxation of schotch wisky and fruit wine liqueurs, no similarity) • Tobacco Cigarettes case (French differential taxation between dark tobacco and light tobacco cigarettes, similarity) • discrimination: direct or indirect. • Humblot case (French annual road tax on cars based on horsepower, favouring domestic production of lower horsepower cars) • Chiara Cellerino© 2017 • 10

Art. 110(2) TFEU • products in competition (without being similar) • indirect protection to the domestic product • wine and beer cases (beer can be substituted with soft wine: UK higher taxation on wines had the effect to protect the domestic product) • only the protective/discriminatory elements need to be removed • limited grounds for justifications based on public policy reasons • Chiara Cellerino© 2017 • 11

Quantitative restrictions and MEEs • Art. 34 TFEU - Quantitative restrictions on imports and export: total of partial restraint on import/export or goods in transit (e. g. export ban, import quotas) - MEEs: hard to define, measures adopted by democratically eleceted legislators/governments having effect of restricting trade, other than duties or taxation Look at the effect of the measure, not the purpose Legislation, administrative practice, non binding acts • Chiara Cellerino© 2017 • 12

Art. 36 TFEU “The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in 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. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”. • Chiara Cellerino© 2017 • 13

Dasonville “All trading rules enacted by MS, which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade” - very wide - foie gras case (C-184/96) - “buy Irish” case (249/81) - bee case (177/82) • Chiara Cellerino© 2017 • 14

Mutual recognition • no discrimination element is needed • distinctly applicable and indistinctly applicable measures (Cassis de Dijon case) • technical, manufacturing, labelling, packaging requirements • duty of mutual recognition of foreign legislations • e. g. Italian pasta (soft weat), Italian wine vinegar, language requirements for labelling, Belgium margarine (cube packaging), German beer purity, French frozen yogurt • also limits to the use of goods can be a MEEs (waterscooter case) • Chiara Cellerino© 2017 • 15

Cassis de Dijon test • necessity • proportionality • Chiara Cellerino© 2017 • 16

Selling arrangements • selling arrangements vs. product-bound measures • Selling arrangements fall outside the scope of applicaion of art. 34 TFEU, and are prohibited only if discriminatory agaisnt foreing products (Keck case) • assumption that they have less damaging effects on trade (do not prevent access to market): when, where and by whome, goods are sold, price control, advertising restrictions • Chiara Cellerino© 2017 • 17