EU Trade Law Revision (Articles 30/110) - Fiscal Barriers to Trade

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Article 3 TEU
Establishes internal market
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Article 26 TFEU
Internal market is an area where the free movement of goods, services, persons and capital is ensured
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Article 28 TFEU
Prohibition of customs duties, on imports and exports, and of all charges having equivalent effect
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Scope of free movement
1. The product must be classed as goods 2. There must be an interstate element 3. It must be a member state that is being challenged
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Commission v Italy (Art Treasurers case)
Goods are products which can be valued in money and which are capable of forming the subject matter of a commercial transaction
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Hedley Lomas
Any arm of the government can be included, irrespective of the capacity in which they are acting
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Article 30
Charges imposed on imports only
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Elimination of Customs Duties
Van Gend - Customs duties are protectionist in nature. Any reason for the change is irrelevant and is enforced strictly by the courts
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Elimination of charges having equivalent effect to customs duties
Commission v Italy (statistical levy) - A CEE is any pecuniary charge however small, whatever its designation and mode of application, imposed by reason of the fact that it crosses a frontier, even if it is not for the benefit of the state
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Legros
A charge at a regional frontier is an obstacle at least as serious as a charge at a national frontier
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Charges that fall outside Article 30
1. consideration for a benefit or services provided 2. Charges that are mandatory under EU/ International Law 3. Internal taxation
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Commission v Belgium (warehousing)
There needs to be consideration, a direct benefit to the importer and the fee must be proportionate to the service provided
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Commission v Germany
1. Charges must not exceed the actual cost of the inspection 2. The inspection must be obligatory and uniform 3.The inspection must be prescribed in the general interests of the union 4. Inspections must promote the free movement of goods
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Denkavit v France
The charge must apply to comparable goods. The chargeable event must also be the same
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Para-fiscal charges
Where the charge is applied to all goods but it is then refunded to the domestic produce in some way
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Capologo v Maya
If the charge is intended to support activities which specifically benefit the domestic product then it will be Article 30
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Denkavit
National courts can lay down rules for recovery but they must be similar to those for domestic infringements
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San Georgio
A trader can't claim repayment from the Member State if they have already passed the cost on to the purchaser
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Comateb
The trader can claim additionally for loss of sales
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Article 110 TFEU
Charges imposed on domestic and imported products
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Commission v France
Genuine tax relates to a general system of internal dues applied systematically irrespective of the products origin
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Lutticke
Article 110 is directly effective
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Similar goods
MS must be tax the same
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Competitive goods
MS must remove protectionist nature of tax
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Direct discrimination
Imported goods treated differently because of their origin
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Commission v Ireland
Direct discrimination can come from the rules around the collection of tax, and not just the amount
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Bobie
(sliding scale for domestic, flat for imports) Importers may be paying more than they should. This duty was directly discriminatory
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Reverse Discrimination
Where the domestic good is treated less favourably than the imported product
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Pereux
If the domestic good is treated less favourably, this is not the EU's issue
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Indirect discrimination
Makes no reference to origin of product but in reality imposes a burden on the imported goods
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Humblot
Indirect discrimination as France did not make engines large enough to be affected by the tax. It has to effect the importers more than the domestic goods
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Objective Justifications
Article 110 can only be justified if: 1. The policy reason is unconnected with the origin of the product 2. It pursues an objective recognised by the EU as legitimate 3. The steps taken are proportionate
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Commission v Italy
Recycling petrol is an objective recognised by the EU
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Article 110(1)
Similar products
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John Walker
Whiskey and fruit liqueurs are not similar because they exhibit manifestly different characteristics
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Commission v Denmark
Fruit wines and wines made with grapes are similar. They have the same process of fermentation and taste and alcohol content etc
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Article 110(2)
Competitive products
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Commission v Belgium
there must be the potential for the goods to be in competition
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Commission v UK
To be in competition they must be capable of substitution. Beer and wine are competing goods
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The exotic import
Co-Frutta - The tax must fit within the general scheme of taxation applied irrespective of the origin of the product
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Card 2

Front

Article 26 TFEU

Back

Internal market is an area where the free movement of goods, services, persons and capital is ensured

Card 3

Front

Article 28 TFEU

Back

Preview of the front of card 3

Card 4

Front

Scope of free movement

Back

Preview of the front of card 4

Card 5

Front

Commission v Italy (Art Treasurers case)

Back

Preview of the front of card 5
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