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EU law- free movement of goods notes
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Class notes European Union Law (620248-B-6) European Union Law, ISBN: 9780198855750
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European Union Law - Structure & Functioning
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EU internal market law – case summariesWEEK01 – Free movement of goods
Bresciani v Amministrazione Italiana delle Finanze
[Italy imposed an ‘inspection fee’ on imports of cow hides.
Was this fee contrary to the EU common customs policy (art. 28 TFEU)? yes, the inspection fee
acted like a tax, treating domestic and imported goods differently.]
Does the public health inspection duty on imported goods of animal origin and which possesses the
features described above, constitute a charge having effect equivalent to customs duties within the
meaning of Article 13 (2) of the EEC Treaty?
In order to ascertain whether the veterinary inspection duty collected on imported hides possesses
the features which the case-law of the Court has defined as distinguishing charges having an
equivalent effect, the first thing to be established is whether it is also levied on corresponding
national products.
This does not appear to be the case. There is, in fact, for hides taken from animals slaughtered in the
State, no inspection corresponding to that for which the charge under consideration in this case is
levied.
In view of the way in which, in its decisions, the Court has defined charges having an effect
equivalent to customs duties, and, in particular, of its finding on the subject of charges relating to
medical inspections at the frontier (Judgment in Case 29/72, Marimex, Rec. 1972, p. 1317), the
import charge under consideration here could, in the absence of a corresponding domestic charge,
escape the prohibition in Article 13 only if it could be regarded as consideration for a service
rendered individually to the importer. This is impossible, however, since, as we have seen, the
examination in question is imposed in the public interest.
Regardless of their amount, pecuniary charges imposed for public health inspection at the frontier
must be treated as charges having an effect equivalent to customs duties and, as such, are prohibited
with effect from 1 January 1970.
Commission v United Kingdom (beer and wine)
The case concerned the issue of different taxes that applied to wine and beer in the UK. The tax on
wine represented about 38% of the sale price of the product, as compared to the tax on beer, which
was 25% of the product’s price. The UK produces much beer, but very little wine. The Commission
claimed that the differential excise tax was in breach of Article 95.
Wine and beer were found not similar as different raw materials, different production methods and
the products had different characteristics.
Dassonville
Belgian law required Scotch whisky to have a certificate of origin in order to be sold in Belgium.
Dassonville purchased Scotch whisky in France, to sell in Belgium. He forged certificates of origin in
order to satisfy Belgian law.
Was the Belgian law incompatible with EU law (art. 34 TFEU) which prohibits quantitative restrictions
on imports and all measures having equivalent effect between member states? yes.
, The Court of Justice defined a ‘measure having equivalent effect’ as:
“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.
As it would be more difficult for a seller such as Dassonville to sell Scotch whisky in Belgium than in
France (he would have to adapt his whisky at additional cost in order to sell it in Belgium), the Belgian
law was a measure of equivalent effect and must be prohibited.
Cassis de Dijon
A German liquor importer was refused permission to import ‘cassis de dijon’ liquor into Germany
from France, as ‘cassis de dijon’ would violate German law requiring fruit liquors to contain a
minimum alcohol volume of 25%.
Does this measure breach art. 34 TFEU? yes.
“Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited
between Member States.”
The Court of Justice found that under the principle of mutual recognition, a product lawfully
marketable in one Member State (France) should be freely marketable in another Member State
(Germany).
Having enacted a measure within the scope of Article 34 TFEU, the Court of Justice found that such a
measure could no longer be justified only under Article 36 TFEU (an exhaustive list of grounds).
However, the Court of Justice introduced the concept of ‘overriding reasons of public interest’
(ORPIs) – grounds of justification to act in addition to the Art 36 grounds. The court introduced
several in this case: “necessary in order to satisfy mandatory requirements relating in particular to
the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial
transactions and the defence of the consumer.” ORPIs may only be used where Art 34 measures have
a non-discriminatory effect, equally applying to both domestic and foreign products.
Since this case, the list of ORPIs has grown
Keck
Keck and Mithouard contended that their prosecution under French law, for selling products below
wholesale prices, contravened TEEC article 28 (now TFEU art 34). A French competition law
prohibited retail of products for prices below that which they had been purchased wholesale. The
aim of this law was to prevent retailers engaging in 'cut-throat competition' by dumping excess
produce onto the market, and forcing competitors out of business. Keck and Mithouard were
charged with having sold Picon liqueur and Sati Rouge coffee below the purchase price. They argued
that the law would discourage imports because importers are often new entrants to the market, and
while trying to acquire market share and brand recognition they may wish to cut prices.
By contrast, contrary to what has previously been decided, the application to products from other
Member States of national provisions restricting or prohibiting certain selling arrangements is not
such as to hinder directly or indirectly, actually or potentially, trade between Member States within
the meaning of the Dassonville judgment (Case 8/74 [1974] ECR 837), so long as those provisions
apply to all relevant traders operating within the national territory and so long as they affect in the
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