EU Recht (Week 3)
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| To create a single internal market the EU treaties pursue a dual strategy, name them. | The strategies: 1. Negative integration (Prohibitions: Treaties contain a number of constitutional prohibitions 'negating' illegitimate obstacles to intra-Union trade 2. Positive integration (Harmonization: Union is charged to adopt positive legislation to remove obstacles to intra-Union trade arising from diverse national laws |
| Define custom duties and their purpose. | An amount of money which is imposed on goods by reason of the fact that they cross a frontier. Custom duties are traditionally employed to protect domestic goods against cheaper imports. Within the Union they are outlawed by art. 30 TFEU. This prohibition applies to charges on imports and exports. |
| What are 'charges having equivalent effect (CEE)'? | Any charge which, by altering the price of an article exported, has the same restrictive effect on the free circulation of that article as a customs duty. The purpose of the charge is irrelevant. |
| When is a fiscale charge an external customs duty, and when does it constitute an internal tax? | The ECJ has tried to answer this questions by excluding from the scope of art. 30 'financial charges within a general system of internal taxation applying systematically to domestic and imported products according to the same criteria that are not to be considered as charges having equivalent effect.' |
| Name the two non-tariff subjects. | Examples: 1. Quantitative restrictions (a ban on a certain good, restrictions in number of volume, etc.) 2. Measures having equivalent effect to quantitative restrictions (labelling requirements, packaging requirements, etc.) |
| What was decided in Commission v Italy? | The ECJ stated that exceptions to the free movement of goods had to be interpreted restrictively. |
| Name the difference between art. 30 TFEU and art. 110 TFEU. | The fundamental difference: 1. National measures that impose a charge on goods when crossing an external (national) frontier 2. When foreign goods are subject to internal taxation |
| What does art. 110 TFEU achieve? | It outlaws: 1. All national tax laws that discriminate between foreign and domestic goods. Discriminate = 'similar' foreign goods are treated dissimilarly 2. Indirect protection of other products --> outlawing all general forms of discrimination Lex specialis to lex generalis |
| Define art 110 TFEU. | 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 |
| Define direct or indirect in regards to art. 110 TFEU. | Direct: takes place where national tax legislation legally disadvantages foreign goods. For example imposing a higher tax rate on foreign as opposed to domestic goods Indirect: where the same national tax formally applies to both foreign and domestic goods, but materially imposes a heavier fiscal burden on the foreign goods |
| Define the internal market and its four freedoms. | Art. 26(2) TFEU: Internal market is the area without internal frontiers. It is realized by four freedoms: 1. Goods (art. 30, 34, 110 TFEU) 2. Workers (art. 45 TFEU) 3. Services (art. 56 TFEU) 4. Capital (art. 63 TFEU) |
| What does art. 110(2) TFEU do and name the two elements that need to be fulfilled. | It targets national taxes that generally disadvantage foreign goods. Such indirect protection can only occur where domestic goods are in competition with imported goods. Two elements are required: 1. The NL will tax competing goods differently; and 2. This differentiation will indirectly protect national goods and thus indirectly discriminates against foreign goods |
| Define regulatory barriers. Which legal barriers do treaties prohibit? | These barriers are legal obstacles to trade which cannot be overcome by the payment of money. The following legal barriers do treaties prohibit: 1. Quantitative restrictions on imports (34 TFEU) 2. And quantitative restrictions on exports (35 TFEU) However: justifications exist on grounds of public interests (36 TFEU) |
| What is a good? | A good is a: 1. Commodity with monetary value 2. Objects that are subject to commercial transactions |
| Define quantitative restrictions. | No monetary value, but a MS upholds a maximum quotum that it can import/export. This is prohibited in art. 34 TFEU |
| What did Dassonville (1974) decide in regards to the MEE? | Every trading rule which, directly or indirectly, actually or potentially, hinders intra-community trade are to be considered as measures having an equivalent effect to quantitative restrictions. In this case: the certificates could not be obtained without extra effort, so unlawful. |
| What did Cassis de Dijon decide in regards to internal measures (measures that technically apply to both imported and domestic goods)? | Court rules in this case: 1. Product rules that do not discriminate (indistinctly applicable) also qualify as a quantitative restriction or MEE 2. Rebuttable presumption: mutual recognition, i.e. if product legally produced and marketed in one MS, it should also be OK in another MS. |
| Scope of art. 34 TFEU is very broad, but not endless. | Define 4 situations where this is true: 1. Hypothetical hindrances (unlike potential hindrances in Dassonville) 2. Purely internal situations (when no borders are crossed) 3. Instances of reverse discrimination 4. Selling arrangements - where, who, when, how (Keck) |
| What distinction is made in Keck. | The distinction between: 1. Product requirements (only constitute MEEQRs where they discriminated against the marketing of foreign goods) 2. Selling arrangements (would still not need to be discriminatory to fall within the scope of art. 34) |
| Define quantitative restrictions on exports (35 TFEU). | The definition: 1. Only applicable for national laws that specifically discriminate against exports 2. Also applies to all measures having equivalent effect |
| Name the six grounds of art. 36 TFEU (justifying regulatory barriers). | The grounds: 1. Public morality 2. Public policy 3. Public security 4. Public health 5. National treasures 6. Protection of intellectual property |
| What is a mandatory requirement in the light of justifying regulatory barriers? | Mandatory requirements are implied derogations of art. 36 TFEU. These are the overriding reasons relating to the public interests. They deviate from the standard list of grounds. |
| The nature of a national restriction determines which justifications are available to a MS, name the natures. | The natures: 1. Discriminatory (can only be justified by reference to the express and exhaustive list of public interest grounds of art. 36 TFEU) 2. Non-discriminatory (open-ended list of implied mandatory requirements |
| What was the main problem with art. 115 TFEU. | That it required a unanimous decision from all the MS. |
| Name the questions in regards to the negative integration. | The three questions: 1. Does a measure AFFECT a fundamental freedom as protected in EU law 2. Is there na EXCEPTION that justifies the measure 3. Is the measure PROPORTIONATE to the objectives pursued |
| Define art. 114 TFEU. | The definition: 1. General competence (EU has the power to legislate for the purpose of internal market) 2. Ordinary legislative procedure (no unanimous agreement between MS) 3. Test for the validity of a measure - Does it genuinely support the functioning of the internal market - Are the obstacles real or likely - Are distortions of the market appreciable |