Free Movement of Goods: Part I

Free Movement of Goods: Part I

• The presentation covers fiscal barriers to trade within the EU, focusing on Article 30 and Article 110 of the TFEU (Treaty on the Functioning of the European Union).
• Learning objectives include identifying lawful and unlawful charges under Article 30 TFEU, and understanding the different components and distinctions between Article 30 and Article 110 TFEU.
• The structure of the presentation divides into two parts: Part I covering Article 30 TFEU and Part II covering Article 110 TFEU, both with case law analysis.

Significance of Free Movement of Goods

• Free movement of goods is a fundamental aspect of the EU's Internal Market.
• The elimination of fiscal barriers (customs duties and their equivalents) is critical for the proper functioning of the customs union and the EU single market.
• The effects of these rules extent beyond internal borders, impacting external customs relations significantly.

Fiscal Barriers to Trade

• Customs Charges (Article 30 TFEU): Customs duties on imports and exports and equivalent charges are prohibited between EU member states. This applies to duties of a fiscal nature.

• Taxation (Article 110 TFEU): Member states cannot impose internal taxation on products of other member states in excess of the taxes on similar domestic products. Nor can they tax in a way that indirectly protects their own products.

• Other Levies: Other levies can also be subject to Article 30 and 110 depending on specifics.

What is a Charge Having Equivalent Effect (CEE)?

• A pecuniary charge (no matter how small) imposed unilaterally on domestic or foreign goods that cross a border constitutes a CEE, even if not discriminatory or protective in effect.
• Examples include charges applied to imported diamonds for social funds (Diamantarbeiders), and inspection costs for certain products that aren't considered a service.
• The form of the charge does not matter; the effect is the focus.

Article 30 TFEU and Direct Effect

• Article 30 prohibits customs duties and their equivalents between member states.

• The principle of direct effect means individuals can invoke the provisions of this article against the member states before their national courts.

• Case 7/68 (Commission v Italy) highlights the fact that the purpose of a levy does not matter; the effect is the focus.

• There is no minimum threshold for a levy to be considered prohibited.

• Case 18/87 highlights allowances, such as charges for health inspections, when justified and applied equally.

• Restitutionary claims can be made for unlawful charges paid, except in specific circumstances.

Article 110: Internal Taxation

• Article 110 prohibits the discriminatory or indirectly protective taxation of products from other Member States. It has direct and indirect components.

• Direct Discrimination (Article 110(1)): This case examines similar product taxation and requires matching tax treatment for domestic and foreign counterparts.

• Indirect Discrimination (Article 110(2)): This examines competitive products and whether a tax gives an unfair advantage to a domestic product.

• Case 184/85 (Commission v Italy) illustrates the concepts surrounding the determination of similarity of products by looking at characteristics or sensory experiences. Bananas do not satisfy the same consumer need as other fruit and is not similarly taxed.

• Case 243/84 (John Walker) considers whether products are related and suitable for similar use. Different product tax rules are justified in this comparative instance.

Comparing Article 110(1) and (2)

• The focus of Article 110 is on the effective application of taxes regardless of the intent of the levy.

Case examples

• Commission v UK (beer and wine): the EU court found British laws that taxed wine more than beer were effectively discriminatory in the UK's internal market.
• Numerous cases highlight specific criteria used to determine direct and indirect taxation issues.

Member State Autonomy

• Member states have some autonomy in setting tax rates, but they are limited by EU rules on free movement of goods, prohibiting fiscal barriers.

Justifications

• Some justifications might be accepted for differential tax treatment, but they must not violate these principles.

Boundaries Between Article 30 and 110

• Often, there's a crucial distinction between levies at the border (Article 30) and internal taxation (Article 110). Some cases blur the lines.

• There might be legitimate justifications present, leading to the importance of carefully considered analysis.

Conclusion

• Article 30 and Article 110 are integral to preventing fiscal barriers to trade across member states.
• While there may in some cases be some permissible taxation, justifiable circumstances for exception are limited.
• Distinguishing between the two articles is important, but some cases blur the lines requiring detailed analysis.
• In general, EU rules are designed to minimize unwarranted disparities.

Workshop

• The workshop will use a fact pattern and will help develop answers involving detailed IRAC (Issue, Rule, Application, Conclusion) analysis.

This quiz explores the fiscal barriers to trade within the EU, focusing on Article 30 and Article 110 of the TFEU. Participants will learn to identify lawful and unlawful charges and understand the distinctions between these articles through case law analysis. Gain insights into the significance of free movement in the EU's Internal Market.