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Summary Problem 1-8
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Summary of 67 pages for the course European Union Law at EUR (Problems 1-8)
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PROBLEM 1E-lessons: free movement of goods 1, pre-test, general principles applicable to the free movements, basic notions 1
& 2 + webcast fiscal barriers
Case law: Art Treasures-case (7), Statistical Levy-case(31), Bauhuis v. The Netherlands-case(8), Dark Tobacco-
case(22), Beer & Wine-case(13), Dried Bananas-case (20), Natural Sweet Wines-case (17), Outokumpu-case (22)
SO1: ARE CHARGES THAT ARE LEVIED ON FOREIGN PRODUCTS AT THE BORDERS PERMITTED
UNDER EUROPEAN LAW? WHAT ARE THE DEROGATIONS?
WEBCAST: BASIC NOTIONS I
All of these terms are measures that violate EU internal market law:
DISCRIMINATION
Prohibition of discrimination= an equal treatment of comparable situations for a specific reason.
(nationality and origin)
- Direct: if u can identify the ground on which the discrimination is based by simply reading the wording of the
measure under scrutiny. So if you forbid pasta of a specific origin, the name of the land has to be notified.
- Indirect: more common. If the measure does not literally say the words. It is indistinctly implacable. The
pasta is forbidden because of the ingredients (not forbidden) this is different when it is obvious that an
ingredient is only used in a particular country.
OBJECTIVE DIFFERENTIATION
Two situations that are treated differently remain different even if we exclude all forbidden grounds as possible
elements that can define these situations as being different. When two pastas are form a different origin, there are
also differences that are not based on origin. (growing conditions that lead to different product prices). Not a violation
when it is objective.
NON-DISCRIMINATORY RESTRICTION
If a measure does not treat two comparable situations differently neither directly in its wording nor indirectly by
affecting one situation less favourable than the other. In Italy closed stores on Sundays: NL doesn’t want to sell in
Italy because of that.
WEBCAST: BASIC NOTIONS II
They define the remaining lead way of member states when they violate internal market law with their measures.
Exception
Whatever falls under it, is out of the scope of EU law. When a measure has an exception, it can’t violate EU law. You
don’t have to test the proportionality.
Example: EU free movement rules shall not apply to employment in the public service article 45 p. 4 TFEU. EU law
leaves the measure unaffected.
EXEMPTION
If exempted, measure is no violation of EU market law.
Justification
When there is a violation of EU law and there is a good reason for it. if permitted for justification, a measure must
meet the requirements of the proportionality test.
EXPLICIT JUSTIFICATION GROUNDS/ MANDATORY REQUIREMENTS
When is a violating measure permitted to be justified? Depends on
1. If the measure can rely on explicit justification grounds
,Easy: treaty provides this explicitly. In an article. This is limited to the grounds that are mentioned in the article 36
TFEU.
2. Or mandatory requirements
Unwritten justification grounds that a member state can also rely on under special conditions (in case law)
Only after the objective is declared admissible for justification bye u law, we van continue with the proportionality test
PROPORTIONALITY
Something must be proportionate in relation to something else. Relationships between:
- Measure under scrutiny
- The benchmark against which the proportionality of the measure is tested
The benchmark is EU law: a fundamental freedom or a prohibition of discriminations
Whether there are no other possibilities to realise the objective that the measure pursues that restrict the rights of
the EU lesser than this one. (no? Proportionate, yes? Not proportionate)
1. Is the measure suitable to achieve the objective it invokes?
2. Is the measure necessary to attain this objective?
3. Does even the least restrictive measure not excessively interfere with the EU free movement rights?
States have to explain why they have designed the measure. It can be disproportionate. The measure has to be
subject to the proportionality check. That’s the distinction between exception and justification.
PRE-TEST
This pre-test will help you identify whether EU law applies (if not, then perhaps the national law of the Member State
is applicable) and if yes, to specify which fundamental EU law freedom is at stake with regard to the facts of the
problem, before moving on to apply that piece of EU law to the facts of the question.
1. Is there a cross-border element/ European dimension?
The EU has 4 freedoms to improve the economy:
a. free movement of goods,
b. persons,
c. services and
d. capitals
the goal is the benefit of the consumer; the consumer would pay the same price for the same goods from different
European manufacturers and can therefore choose the qualitative best product for the same price.
These freedoms cant penetrate into situations with no European element in them. So, for the protection of these
freedoms, there must be an element of cross-border movement.
There is a European dimension or a cross-border element when an EU Member State’s measure has an effect on the
free movement between Member States. If there is only a purely internal situation in a Member State (no crossing to
another Member State or no effect on the free movement goods/persons/services or capital between Member States),
the parties cannot appeal to the European rights of the four freedoms. In a purely internal situation, national law of
the Member State is applicable.
A cross-border element may exist even when a measure may potentially affect the free movement between Member
States.
- This follows from the broad definition of what can be a restriction of the free movement of goods under the
so-called ‘DASSONVILLE’ formula (case 8-74, para. 5: ‘All trading rules enacted by Member States which
are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be
considered as measures having an effect equivalent to quantitative restrictions (art. 34 and 36 TFEU)
Free movement provisions may be applicable even when the facts of a specific case before the national court are for
now confined to a single Member State.
- The cross-border element is only necessary for the fundamental freedoms (the four freedoms) in the Treaties.
Other EU-rules define their ‘European dimension’ differently.
, - Because a cross border element / European dimension is needed for EU law to apply, your answer to Question
1 needs to be: Yes, because…
2. Is it a measure of a Member State or attributable to a Member State?
FRA.BO CASE (70): concerned the position of private parties and whether their actions and rules can be attributed
to that of the Member State. The case was about an Italian undertaking that produced copper fittings; it had the wish
to enter the internal market of Germany. In order to do so, the Italian products had to comply with the rules of a
private law body in Germany. According to these private law body rules, the Italian undertaking did not fulfil the
requirements to enter the internal market of Germany. Hence, the German private law body restricted the Italian
undertaking to enter the market.
There were no EU rules that harmonised the producing of copper fitting, meaning the national provisions governing
this needed to comply with rules and obligations under the Treaty. This entailed that the free movement of goods as
set in Articles 28-30 EC (currently Articles 34-36 TFEU) needed to be taken into consideration.
And according to the DASSONVILLE CASE (37) all rules enacted by Member States which are capable of hindering,
directly or indirectly, actually or potentially, intra- Community trade are to be considered as measures having an
effect equivalent to quantitative restrictions, are prohibited by Article 28 EC (currently Article 34 TFEU). Meaning, a
potential restriction or the mere dissuasion of the Italian importer to introducing or marketing its products in Germany
constitutes a restriction on the free movement of goods for the Italian importer. It was therefore decided that private
party actions that regulate in a collective manner, also fall within the scope (of the negative integration) of the free
movement of goods. Concluding, private law bodies may also not restrict the free movement of goods as they also fall
under the personal scope of the freedom.
- Because the measure needs to be one by a Member State or attributable to a Member State, in order for EU
law to apply, your answer to Question 2 needs to be: Yes, because…
3. is there harmonisation in this area?
The question is there is any harmonisation on the topic that regulates the matter in an exhaustive manner: so-called
‘maximum harmonisation’ or ‘full harmonisation’
In this case, the harmonised rules would go before the fundamental freedoms following the lex specialis derogat legi
generali principle.
- If there was a harmonisation measure, the ‘general’ internal market freedom-rules in the Treaty could then be
seen as lex generalis and the ‘specific’ harmonisation rules as lex specialis and would therefore prevail in
applicability
If there is harmonisation, one should first examine whether the measure is contrary to the harmonising instrument
(e.g. a regulation or a directive) and then, if necessary, examine whether the measure contrasts the Treaty provision.
Because in order for EU law to apply, there needs to be no full harmonisation (otherwise one needs to apply the
harmonisation first and not the Treaty provisions), here your answer to Question 3 needs to be: No, because...
4. which fundamental freedom applies in the present case?
With this question, you answer whether the case study falls under the scope of the free movement of goods, services,
capital or persons and motivate your answer with reference to the relevant provision. The scope of these freedoms is
exclusive, meaning that if one is applicable, the others are not.
This last question is a question that needs to get you started with one of the four freedoms, hence your answer to this
question needs to look something like ‘… Because (article..../provision..../definition)/…’
GENERAL PRINCIPLES APPLICABLE TO THE FREE MOVEMENTS
prohibition of discrimination, cross-border element, purely internal situation, reverse discrimination
PROHIBITION OF DISCRIMINATION
The prohibition of discrimination entails that EU citizens are not allowed to be discriminated against on grounds of
nationality (Article 18 TFEU).
This entails that Member States cannot treat other EU nationals worse compared to their own nationals.
The prohibition of discrimination applies to all sectors: to exporters/ importers (goods), to
employees/operators from other EU countries, to service providers and recipients of services.
, One of the fundamental principles of law is that the lex specialis overrules the lex generalis. In this case there is a
general provision (lex generalis) prohibiting the discrimination on grounds of nationality in the scope of all freedoms.
There is however a lex specialis for every freedom in this aspect in Articles 45, 49, 56 and 63 TFEU.
3 forms of discrimination:
Direct discrimination: entails a direct link between the measures of a Member State and the nationality of a
citizen or the origin of a good. Sometimes 'direct discrimination' is known as 'measures applying with
distinction'.
Indirect discrimination: entails discrimination that does not distinguish according to the origin of the product,
yet is based on qualities that usually have a disproportionate effect on foreigners, for example, a language
requirement, residence requirement etc. These requirements are usually easier to fulfill by people from the
Member State that enacts the measure, in comparison to foreigners. Sometimes 'indirect discrimination' is
known as 'measures applying without distinction'.
Non-discrimination: entails a measure that does not make a distinction, i.e. does not treat two comparable
situations differently. Neither directly in its wording nor indirectly by affecting one situation less favorably
than the other. An example is asking for different requirements, such as the prohibition to sell products on a
Sunday
CROSS-BORDER ELEMENT
The four freedoms are arranged in EU law. For these rights to be applicable, there needs to be a European dimension
or a cross-border element. This is the case when an EU Member State’s measure has an effect on the free movement
between Member States. This can, for instance, entail that the goods/persons/services or capital cross the border
from one Member State to another.
PURELY INTERNAL SITUATION
If there is only a purely internal situation in a Member State (no crossing to another Member State or no effect on the
free movement goods/persons/services or capital between Member States), the parties cannot appeal to the
European rights of the four freedoms. In a purely internal situation, in principle, the national law of the Member State
is applicable.
REVERSE DISCRIMINATION
Reverse discrimination entails that discrimination is applied to the citizens of a Member State and not to the
foreigners entering that Member State; this is also known as a U-turn construction. Own citizens are
disproportionately affected by the rule in comparison to the citizens of another Member State. Reverse discrimination
is not forbidden because the application of EU law requires a cross-border element to be present.
exceptions, justifications, objective differentations and proportionality
EXCEPTION
For every provision that arranges the free movements, there is an exception available. An exception is a situation that
fulfils all requirements for the provision, however, there is a good reason the consequences do not apply in this case.
If it falls under the scope of the exception, it does not fall under the scope of the prohibition or justification of the
main provision; it falls outside the scope of the provision.
JUSTIFICATION: EXPICIT AND IMPLICIT
When there is a prohibition, there are always rules (implicit or explicit) that allow the prohibited behaviour to take
place under certain circumstances; these are called justifications. This entails that you fall under the scope of the
prohibition, but it is okay/justified under certain circumstances to act against the prohibition. EU law then justifies the
breach of the rule.
Two types of justifications:
1. Explicit/Treaty-based: these are based on the TFEU articles.
2. Implicit/Mandatory requirements: entails that the justification is formed by case law (CJEU).
OBJECTIVE DIFFERENTIATION
In some cases an objective differentiation is possible. This entails a different treatment of the same products or
services, just because of their heritage. Normally, this would entail unpermitted discrimination. Yet sometimes,
objective differentiations are allowed in specific situations where there is an objective ground, designed to achieve
specific objectives, that are compatible with EU law and are applied in such a way as to avoid discrimination. A rule is
compatible with EU law if it is compatible with the aims stated in EU law. An example of such an aim would be the
protection of public health, environment protection, animal protection etc.
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