This pdf contains the lecture notes taken from the second part of the course Institutional and Substantive EU Law , being Substantive EU Law. It includes all of the lectures from the beginning to the end of the course.
institutional and substantive eu law lecture notes
substantive eu law lecture notes
lecture notes
substantive law class notes
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Universiteit van Amsterdam (UvA)
Institutional and Substantive Law
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Lecture Notes
8.11.2021
Lecture 1- Movement of Goods
Art 3(2)TEU→ area without internal frontiers
White Paper on completing the internal market→ 1. Physical Barrier
- Border control between MS
- Because: additional costs for MS
and businesses
- Wealth Creation
2. Technical Barrier
- Different technical standards
from products maintained by MS
- Case law of COJ on mutual
recognition of CJEU
- Ex: Cassis De Dijon Case
3. Fiscal Barrier
- No barriers→ integration
- Union Citizenship 1992
- 1985: Political symbolism by which Comm describes EU unity
- NO: National borders visible to citizens to show EU
EU without Single Market→ loss of wealth
Sovereignty→ MS can check what enters into state
Internal Market Basis
Art 26 TFEU
- Ensuring functioning of internal market
- No internal frontiers
Three Models of Internal Market
HOST COUNTRY HARMONISE HOME COUNTRY
Wealth -Different levels of -Economies of scale +/- regulatory
protection across -Diversity of competition
MS preferences
-Higher production -Rule creation &
cost Changing difficult
Institution MS EU Legi COJ (mutual recog)
Sovereignty -Low level of -Vertical transfer of -Reassignment of
sovereignty loss sovereign powers sovereign powers
-Horizontal
Democracy Under inclusive Democratic Deficit Favoring Capital
, Company/Citizen of Eu over workers
does not have say in
process in other MS
EU Treaties Article 36 TFEU Article 114 TFEU Mutual Recognition
Ex: Cassis de Dijon
1) Host country control
- International market model after WW2
- Host country permits product into its territory
- Own rules apply
- No descrimination
- State where products enter→ justification from free movement of
goods (Art 56 TFEU)
- Sovereignty is maintained
2) Harmonised model
- Resembles market model of a single state
- EU acts as super legislature that sets common rules across all MS
- Article 114 TFEU
3) Home country control
- Resembles a federal market: similar to market of a state Ex: US
- Mutual recognition
- Transfer sovereignty Horizontally
- Rules are chosen by State
Techniques of Economic Integration
Negative Integration: eliminating obstacles & removing discriminatory restrictions
- Producers need to comply with both host state and home state
- Works with litigation
- COJ infringement procedure
- ONLY: some infringement of EU MS
- Requires litigation to eliminate rules (Art 267 & 268 TFEU)
1. Law is only reactive
2. Requires a lot of resources
- As private individual many costs (lawyer)
Positive Integration: Adoption of common rules and standards
- Through Directive and Regulations
Free Movement of Goods
Case 7/68 Commission v Italy→ defined goods
- Good is a product which can be valued in money and forms commercial transaction
- Products lawfully produced
EX: Cannabis does not→ if not legal in another MS then not a good
, - Negative and Positive value
- Also intangible products
Ex: Trash is a good
Electricity→ intangible product
- It constitutes a good
- Transmission of a good
- Good NOT service provided
Customs Union
Art 28(1) TFEU
- EU constitutes a customs union
- Involve prohibition of customs duties in import/exports MS
Internal Dimension→ Abolition of internal Barriers
- Fiscal Rules: Art 30 + 110 TFEU
- Non fiscal rules: Art 34-36 TFEU
External Dimension→ Common external tariff
- Trade policy towards 3rd countries
- Goods from 3 country→ Complies with customs formalities
- It is in free circulation
- Products from US: customs formalities in Rotterdam→
in all MS is okay
- Political aspects→ no EU customs Union
- Customs revenue part of EU’s own resources
- MS authorities→ custom duties
- Revenue of EU→ Common External Custom Tariff
Fiscal Rules: Custom Duties and Charges
Art 30 TFEU→ Customs duties on imports and exports
- Definition of charges having equivalent effect→ Case 2 and 3/69 Diamantarbeiders
- Amount of being charged on the product→ does not matter
- Prohibition
2 Exceptions→ 1. CEE as service by State (Case Commission v Italy)
- Charge Italy imposed to importers
- COJ: Service by State must be of Direct Benefit to
importer
- Benefits general public
2. Inspections required by EU law (Case Commission v Germany)
- Germany imposed duties on veterinary inspections
- EU law: required
Quantitative restrictions→ can be imposed under certain circumstances
Ex: Covid face masks
, Fiscal Rules: Discriminatory taxation
Article 110 TFEU
- No MS impose direct or indirect taxation on imported products
- Prevent MS to circumventing Art 30
- Art 30 TFEU: when product crosses frontier and comes from outside
- Art 110 TFEU: product is inside territory of State
- Requires neutrality of taxation of importer products
- Indirect discrimination→ French car taxation
- Case Humblot
- Def: If National rule taxes all products the same way→
but indirectly discriminates towards foreign products
- Justification: only indirect discrimination
- Objective reasons
- Similarity of products → 1. Characteristics
2. Method of manufacturing
3. Consumer perception
Ex: Wine v Beer
→ if goods not similar 110(2) TFEU
→ if goods ARE similar 110(1) TFEU
Discriminatory Taxation
Art 110(2) TFEU → no MS shall impose on products of MS any internal taxation
- If products are different
Ex: Case Commission v UK
- Different price for wine and beer
- Competitive relations ?
2 stage test: 1. Competitive Relationship
2. Protective effect of taxation system
- Not substitutable → diff taxation system
- Wine higher tax→ influences consumers
Boundaries Art 30 TFEU and Art 110 TFEU
1. Mutually exclusive
- Either one applies
2. Art 30 TFEU
- Customs duty per se unlawful
- Not justified
3. Art 110 TFEU
- Not per se unlawful
- Can be justified → Ex taxation
Non Fiscal Measures: Quantitative Restrictions and MEE
Art 34 TFEU → Quantitative restrictions on imports and all measures having equivalent
effect shall be prohibited between MS
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