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Complete summary European Union Substantive Law
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EUROPEAN UNION LAW: SUBSTANTIVEINTERNAL MARKET
Art.26 TFEU definition (+arts.2, 3 TEU).
INSTRUMENTAL FUNCTION: internal market is tool to achieve European
integration (art.2 TEU)
As an instrument (to achieve certain goals) the internal market works as
follows:
Increases availability and the quality of factors of production
Enhanced efficiency in production
Increased production levels
Improved international position
If you allow states to focus on what they good at and allow them to
trade, you create growth and wealth out of nothing (political + economical
choice made by MS)
INTERNAL MARKET IS CREATED THROUGH:
o NEGATIVE INTEGRATION (prohibition of barriers)
Prohibit barriers through case law, treaty, ('you can't do this
anymore'), secondary legislation
o POSITIVE INTEGRATION (coordination/harmonisation/common policies)
Mostly through secondary legislation and case law following
that
You take all national rules that are in place and try to erase
differences between different national standards.
Prohibition/justifications of violations of freedoms in the TFEU
Goods→ Arts. 30/34/35 (pro.) and 36 (just. for 34/35)
Workers→ Art.45 (pro. and just.)
Establishment→ Article 49 (pro.) and 51/52 (just.)
Services→ Arts.56 (pro.) and 61 (just.)
Capital→ Art.63 (pro.) and 65 (just.)
Case SCHUL
para. 33.
ESSENTIAL ELEMENTS (from Schul):
-As close as possible to a domestic market
-Removal of all obstacles (relates to functioning) (taking away state
created barriers that were introduced)
DISCRIMINATION
Direct discrimination through state measures is prohibited on the basis of
the Treaty. Justifications are only possible on the basis of the Treaty
Indirect/Non-discrimination is PROHIBITED ON THE BASIS OF CASE LAW. Justifications
are possible on the basis of the Treaty and case law (discrimination is only
allowed if treaty allows so→ some freedoms more open to interpretation
than others)
PROHIBITION of indirect/non-discrimination and justifications
o Goods (Cassis de Dijon)
o Services (Säger)
o Workers (Kraus; Bosman)
, o Establishment (Gebhard)
o Capital (Svensson)
BARRIERS
May result from:
DISCRIMINATION ON NATIONALITY
o Dual burden in law:
1. Distinctly applicable rules (goods)
2. Direct discrimination (other freedoms)
o Difference in treatment between state where goods are established
and everything that comes from abroad.
o Government knowingly and willingly decided to discriminate foreign
objects.
o Look whether national and non-national have same treatment
DIFFERENT EFFECT OF LEGISLATION
o Equal burden in law BUT different burden in fact.
1. Indistinctly applicable rules (goods).
2. Indirect discrimination (other freedoms).
o Legislation itself is neutral but in effect makes a difference between
states.
o Effect of that rule weighs so much heavier on non-nationals (or
importer).
o Whether national and non-national have same treatment.
NON-DISCRIMINATION
o Equal burden in law + equal burden in fact.
o Both national and non-national have to do same kind of procedure.
o Likely to hinder or make it harder to practice free movement of
goods.
o Market access approach.
o Look whether the rules are the same between MS.
o Situation of REVERSE DISCRIMINATION: national will have more
procedures than importer (no remedy by court for it).
FREE MOVEMENT OF GOODS
Relevant Treaty Articles:
o Art. 3 TEU
o Art. 26 TFEU
o Art. 28 TFEU: CUSTOMS UNION
Customs union- Free movement of Goods:
Originating in MS
Goods from Third Countries which are in free circulation
No extension of cu benefits for 3d countries:
o Bouhelier
o EMI
o Polydor
o Art. 29 TFEU: ‘FREE CIRCULATION’
TARIC
Relatively static
o because there are no internal borders anymore (though no necessity for
internal market to have no borders)
Division between economic and quantitative restrictions
, o ECONOMIC: Duties & Charges
o QUANTITATIVE: Quotas & Measures
DEFINITION OF GOODS:
o Commission v Italy (Art Treasures)
“All products which can be valued in money and which are capable of
forming the subject of a commercial transaction”
o But:
Jagerskiold v Gustafsson: Fishing License
Schindler: Lottery Tickets.
FINANCIAL RESTRICTIONS
Core Prohibitions relating to two main import restricting measures:
o Import Duties
o Quotas
CHARGES HAVING EQUIVALENT EFFECT
PROHIBITION of Import Duties & Charges having equivalent effect:
Real Import Duties are extinct between MS- See for example ECJ
Van Gend & Loos which concerned a violation of the standstill clause
on Import Duties in old article 12 EEC.
Focus lies on “charges having equivalent effect”.
MS are creative in camouflaging “import duties” in all kinds of
measures.
That's why "charges having equivalent effect' are included.
DEFINITION
o Commission v Italy:
“Any pecuniary charge… …which is imposed unilaterally on domestic or
foreign goods by reason of the fact that they cross a frontier, and which is not a
customs duty in the strict sense constitutes a charge having equivalent effect.”
PURPOSE of the charge:
o Sociaal Fonds voor Diamantarbeiders:
“… any pecuniary charge, …and whatever its designation and mode of
application… …constitutes a charge having equivalent effect… …even if it is
not imposed for the benefit of the State, is not discriminatory or protective in
effect and if the product on which the charge is imposed is not in competition
with any domestic products”
LOW CHARGE :
o Commission v Italy (statistical levy): “any pecuniary charge, however
small, constitutes a charge having equivalent effect”
o art. 30 TFEU direct effect
Vertical: Yes- Van Gend & Loos
o State, emanation of state (Foster criteria)
Horizontal: Yes- Dubois
o To what extent can rules be applied to private entity?
('can landlord only accept people of certain
nationality?')
o What happens if charges are levied?
State has to reimburse the importer (But it’s the consumer that is
‘paying’ for it since it becomes included in the price of provider)
Duty to reimburse:
San Giorgio
Comateb
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