Judgments
Cases - Law of the Internal Market
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Case law notes on the elective law of the internal market of the LLM European Union Law @ University of Amsterdam
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Week 1Outokumpu
Facts
● Finnish law
○ Electricity etc = subject to duty + additional duty payable to state
● Outokumpu
○ Company → Imported electricity from Sweden under a contract with Swedish company
Vattenfall AB
○ Had to pay electricity duty on those imports → contrary to Art. 12 & 13 EC → art. 25
Question: whether the duty on electricity is a charge having equivalent effect to a customs duty?
ECJ
● Provisions on charges having equivalent effect & those on discriminatory internal taxation cannot
be applied together
● Duty
○ tax NOT exclusively imposed on imported electrical energy but also applies to various
primary energy sources like coal products
○ electricity imported and electricity generated within country = subject to same tax system
○ tax is levied on all electricity, regardless of origin
■ whether it's produced within the country or imported from abroad
○ Thus → tax is not solely targeted at imported electricity
○ Tax can only be seen as equivalent to custom duties if it is applied exclusively to imported
products → this is not the case (27)
duty → constitutes an internal taxation → NOT a charge having equivalent effect to a customs duty (29)
Is the duty compatible with art. 95 EC?
● Art. 95 → infringement → if taxation on imported product & on the domestic product are:
a. calculated in a different manner
b. On basis of different criteria which lead to higher taxation on imported product
■ → When it is higher than the lowest duty charged on domestic products
● Yes
○ Art. 95 → Prohibits a domestic tax system that taxes domestically produced electricity
differently based on how it's generated, while imported electricity is taxed at lower rate
○ could lead to imported electricity facing higher taxation than domestic electricity
Jersey potatoes
Facts
● Jersey marketing organisation → JPMO vs Jersey potato export marketing board (PEMB)
● compatibility EU law of Jersey Potato Export Marketing Scheme Act 2001
● 2001 act
○ producers → prohibited from ‘exporting potatoes’ unless they are registered with PEMB
, ○ Marketing organisations → prohibited from receiving ‘potatoes’ for ‘export’ if they are not
a party to a current management agreement with PEMB
● JPMO
○ → hampers trade
○ Payment to PEMP → charges having equivalent effect to customs duties
Question: Is the Scheme a measure having an effect equivalent to quantitative restrictions on export?
ECJ
Yes
● contribution imposed on producers registered → applies only to them
● free movement of goods should be ensured between MS
● → Goes against art. 23/25 EC
● 2001 Act provisions → affect exports from Jersey to UK
Article 29
● measures that have as an affect restriction exports & a difference in treatment between the
domestic trade of a MS & its export trade → gives an advantage for domestic market
Conclusion
● Act prohibits Jersey producers from exporting potatoes to UK → unless registered with PEMB
○ → creates difference in treatment between Jersey’s domestic trade & export trade to UK
○ advantage for island’s production or its domestic market
● 2001 act → restriction on exports
Italian marble
Facts
● interpretation of Articles 23 EC, 81 EC, 85 EC and 86 EC
Applicants
● Challenged before national court → received tax notice on marble tax payable
Questions:
1. ‘Are the rules laid down in Italian Laws compatible with art. 23,81,85 and 86 of EU law?
● Whether marble tax, levied solely in one municipality of a MS and imposed on one class
of goods (marble excavated in that municipality’s territory) constitutes a charge having
effect equivalent to a customs duty
ECJ
● tax → applied to Carrara marble when it is transported across the territorial boundaries of
Comune di Carrara
○ Marble used within Comune di Carrara is exempt from the tax, because it is used locally
○ Tax → cannot be described as internal taxation
, ● Is it a charge having equivalent effect?
○ Yes → any pecuniary charge, imposed unilaterally on domestic or foreign goods and
which is not a customs duty, constitutes a charge having equivalent effect
○ when marble from Carrara is transported → a tax is applied
■ Does not matter if marble is going to be used within Italy or sent to other
countries
■ tax is applied uniformly to all Carrara marble regardless of its final destination.
○ tax levied in 1 municipality only & imposed on 1 class of goods when transported across
territorial boundaries of that municipality → charge having effect equivalent
Ullens de schooten
Facts
● Ullens → Action for non-contractual liability brought against belgium
● Belgium → ECJ does not have jurisdiction
Questions: whether EU law precludes the possibility for damage compensation for harm caused by a
violation of EU law when an individual claims to have suffered harm due to alleged violation of fundamental
freedom (49, 56, 63 TFEU) when the situation is entirely within the boundaries of a single MS
CJEU
● Para 41: 3 conditions of damages: (francovich liability)
1. Rule of EU law infringed is intended to confer rights on them
2. Breach sufficiently serious
3. Direct causal link between breach & damage suffered by individual
● Para 47: doctrine - we don’t rule in purely internal situations but sometimes we do ( para 50-53)
● 4 conditions under which ECJ has NO jurisdiction:
a. The situation → confined within a single Member State
b. referring national court does not provide any indications to the contrary
c. When request for a PR doesn't appear necessary:
d. Link dispute to EU Treaty provisions → not evident
→ purely internal situation
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