Introduction to International Commercial and European Law
This is a summary of Transnational Commercial Law. The summary gives practical examples of application and real-life examples of how to apply articles that connect to the chapter. Think about TFEU LAW, Brussel Regulation, CISG, Montreal Convention, ROME 1 and 2, CMR, and Hague Visby Rules.
Samenvatting Introduction to International Commercial and European Law, H1 t/m15, ISBN:9789462511712
samenvatting international and european law
Introduction to Commercial Law
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Transnational
Law
,1) First try to formulate what needs to be clarified under the rules.
The issue at stake is….
The question is….
State aid chp 4 107 TFEU
,CHAPTER 2 Introduction European Law
Mosselman: ICL & EU LAW; Chapter 2, p.35-41 ; 54-63
Why the European Union?
Peace & stability
Economic integration
Working more closely together to promote the European model of society
History
1951: Treaty of Paris -> European Coal and Steel Community and ECSC Treaty (expired in July
2002)
1957: Treaties of Rome (TEC) establishing 1. the EEC (renamed EC in 1992) and 2. the European
Atomic Energy Community (EURATOM)
1965: Merger Treaty, 3 communities merge into EEC
1992: Maastricht Treaty on European Union (TEU: euro!)
1997: Treaty of Amsterdam
2001: Treaty of Nice
2009: Treaty of Lisbon (TFEU)
Maastricht Treaty 1992
Creation of the European Union. Basically, the EEC was transformed into the E.U.
-> Change of name: European Economic Community became European Community.
So, called Three Pillar Structure:
1) Economics
2) Foreign Policy
3) Justice
Exclusive powers of EU, but also principle of subsidiarity and proportionality
Concept of EU citizenship established -> restatement of existing rights: free movement of workers;
and of practices: diplomatic protection; grant of new rights: participation in elections, petitioning the
Parliament.
Aiming for more economic and social cohesion
,Member States
Original members: Benelux, Italy, France and Germany.
Then others joined:
1973: UK, Denmark, Ireland
1981: Greece
1986: Portugal and Spain.
1995: Austria, Finland and Sweden.
2004: Estonia, Latvia, Lithuania, Poland, Czech Republic, Slovakia, Hungary, Cyprus, Malta,
Slovenia
2007: Bulgaria and Rumania
2013: Croatia
When sovereign states/nations/countries wish to cooperate on a structural basis they create so-called
International Organizations
Such International Organizations come in two rather different types:
1) The Inter-Governmental Organization. The I.G.O. operates in between its member states.
Decision-making by consensus.
2) The Supra-National Organization. The S.N.I.O. operates (in terms of power) above and not
between its member states
The EU is an Supra-National (international) organization
Once again: Supra-National (international) organizations operate in terms of power above and not
between its member states.
The EU therefore can take decisions that bind its member states
This is very different from decision-making in Inter-Governmental (international) organizations. Veto
for all members
EU Internal Institutions
European Council: Heads of State of MS
Heads of state and government (presidents and prime ministers) & President of the European
Commission
Council of the European Union: Voice of the MS
Commission promotes EU interest
European Parliament: Voice of the people of Europe
Court of Justice: the rule of law
European Central Bank: a stable currency
Legislative powers of the EU
• Council of the EU, Commission and European Parliament share legislative powers of the EU.
,In other words: unlike most other international organizations the EU can make real (European) laws
binding both EU Member States and/or European citizens
,Sources of EU Law
1) Primary EU law:
Treaty on the European Union (TEU)
Treaty on the Functioning of the European Union (TFEU)
2) Secondary EU law - art. 288 TFEU:
European Regulations (=EU law of general application, binding in its entirety, directly
applicable. Prescribing, regulatory act)
European Directives (=binding instruction as to the result to be achieved, choice of form and
methods up to national authorities. Unifying act, e.g. internal market, environment, social
policy)
European Decisions (= binding in its entirety, to whom it is addressed, e.g. competition)
3) European law is superior in ranking and therefore supersedes national law of EU Member States
Acts with legal effect, but no binding force: (“soft law”)
Opinions & Recommendations
The Council of Europe (IGO, 1949, Palais de l’Europe, Strasbourg):
Human rights, promotion Europe’s cultural diversity, combat racial prejudice and intolerance
European Convention on Human Rights; European Court of Human Rights. N.B. This is a Non-EU
body!
Economic Integration
One of the most important goals of the EU is economic integration of the Member-States.
The internal EU market is the result of “deep” economic integration.
Stages:
Free trade area, all customs duties and quotas between a number of countries are removed. BUT:
countries keep their own duties and quotas towards third countries;
Customs union, free trade area plus an agreement by all members of the area to impose a common
level of duty on goods coming into the area from non-member countries. Common Customs Tariff.
Common market, customs union plus free movement of goods, persons, services and capital.
Common market is similar term to single market, but certain restrictions on the factors of production
continue to exist;
Economic and monetary union, common market plus unified monetary, economic and fiscal
policies.
, CHAPTER 3 European Law: The Four Freedoms
Mosselman : Chapter 3, p. 75-107
Mosselman : Chapter 3, p. 75-131
One of the cornerstones and probably the greatest success of the European Union is the single market.
The single European market allows the citizens of the 28 Member States to move and trade without
barriers in the other Member States. The basis of the Single Market is the so-called ‘four freedoms’.
– the free movement of goods, Articles 28, 34-36 and 110 TFEU
– the free movement of persons, Articles 45-55 TFEU;
– the free movement of services, Articles 56-62 TFEU;
– the free movement of capital, Articles 63-66 TFEU
The single European market is based on a customs union. A customs union involves two aspects of
the single market, Article 28 TFEU:
1. the prohibition of all customs duties on imports and exports
2. all charges having equivalent effect involving the trade of goods between Member
States;
3. the adoption of a common customs tariff in their relations with third countries.
Art. 29 TFEU: Products coming from a third country shall be considered to be in free circulation in a
Member State if the import formalities have been complied with and any customs duties or charges
having equivalent effect which are payable have been levied in that Member State, and if they have
not benefited from a total or partial drawback of such duties or charges.
3.1 Free movement of goods
To achieve the free movement of goods, the TFEU prohibits:
Article 30 TFEU; Ensure removal of customs duties or charges having equivalent effect
(C.H.E.E.) the imposition, directly or indirectly, on the
products of other MS of any internal taxation of any
kind in excess of that imposed on domestic products,
Article 110 TFEU;
-Quantitative restrictions on imports and all
measures having equivalent effect, Article 34 TFEU;
-Quantitative restrictions on exports and all
measures having equivalent effect, Article 35 TFEU.
,All trading rules that are capable of hindering directly or indirectly intra-Community
trade are measures having an effect equivalent to quantitative restrictions.
Customs duties on imports and exports between Member States and all charges having equivalent
effect are forbidden in Article 30 TFEU. Prohibition of so called “tariff barriers” (C.H.E.E.)
However, the Court of Justice of the EU has decided in its case law that the situation in which an
inspection is required by EU law is not covered by article 30 TFEU.
The conditions articulated by the Court are the following: It falls under article 30 when:
(1) the charge does not exceed the actual costs of the inspection required
(2) obligatory and uniform for all products concerned in the EU
(3) prescribed by EU law in the general interest of the EU
(4) it promotes the free movement of goods by neutralizing obstacles that could arise from different
measures of inspection.
If it breaches one of these, the issue would not fall in ruling of article 30
If all conditions are met, ruling under article 30 is applied
Discriminatory charges
There are two categories of levies: (charges)
, -A levy which applies only to imported or exported goodsalways in breach with Article 30
-A levy which applies without distinction to imported and domestic products
A levy is allowed if:
-The levy is for a service required under European law;
-The service genuinely benefits an individual trader.
-Only for real costs of the service
Non- Discriminatory charges
Although Article 110 TFEU allows Member States to keep their different internal tax regimes, it
prohibits discrimination using taxes between a domestically produced product and an imported
product.
Article 110 TFEU states that: no Member State shall impose, directly or indirectly, on the products of
other Member States any internal taxation of any kind in excess of that imposed directly or indirectly
on similar domestic products. The difference between a customs duty and tax is that a customs duty is
a charge
1. Article 110 under 1 TFEU prohibits a higher tax on imported products than on similar domestic
products.
2. Article 110 under 2 TFEU forbids a Member State to have any internal taxation of such a nature as
to afford indirect protection to domestic products.
3. Taxes benefiting mainly domestic products.
Quantitative restrictions on imports, Article 34 TFEU.
Article 34 TFEU only applies to products legally introduced onto the European Market.
Prohibition of so called “non-tariff barriers” = Quantative restrictions
CASE: Cassis de Dijon
There are two main groups of quantitative restrictions on imports and measures having equivalent
effect:
-Directly against imported productsquantitative restrictions on importsa partial or total ban,
import licenses, indications of origin, restrictions on advertising for foreign products.
-Indirectly against imported productsmeasures having equivalent effect
A number of measures regarding minimum or maximum prices for products, price freezes or
minimum or maximum profit margins are in breach of Article 34 TFEU.
– Minimum price
Even if a minimum price is fixed for domestic and imported products and thus makes no
distinction between imported and domestic products, such a measure has an effect
equivalent to a quantitative restriction. It prevents importers of the product who could sell
cheaper from using their competitive advantage.
– Maximum price
Since a maximum price may have the effect that the maximum price is fixed at a level which
makes the imported product either impossible or more difficult to sell than that of the
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