College aantekeningen
European law
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récapitulatif des structures européenne et de leurs productions (loi, traité, règlementation...)
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Voorbeeld van de inhoud
exam : 2 or 3 little cases to solve, based on our knowledge. ex : Is there an infringement (transgression) ?Can we resolve it ?
Identify which treaty we are talking about + justification (can it be proportional)
(avoir une copie des traités qui régissent les relations de l’UE et apprendre à s’en servir)
EU LAW
Substantive law are the law that permits to establish how you should be treated and how you should treat the others
even beyond the limits of the state
The free movement of goods and services is the fact that permits to trade any goods or any service through the
countries. You can offer you services much lower in a country than another.
People are subject/part of the international market. You can go in a country and establish your market there.
The free movement of capital/money is the last but not least thing that can be traded.
how close the economies and daily life of the people has become difficult in the EU?
the idea is to understand how difficult it is to understand the trading in the EU
FREE MOVEMENT OF GOODS
Free movement of goods has to be taken seriously because it is the most influential freedom since it is part of our
daily life (i.e supermarket). It is something that should be taken for granted and should be limited. It is beyond
questioning at the moment at the european union and it is the most legislatized subject.
What can the member state do to regulate ? What does left for the member states to regulate ?
What can the member state do about some products (alcool, pornography) to be limited ?
It is all about the integrity of the states : can Italy propose gambling in Sweden for example ?
This is all that EU law has to regulate.
Corporation only exist because the countries considered that this corporation fulfilled every requirements to exist. But
those requirements varies from a state to another.
That should be easy for a company to come in another one because there is a common market. This is highly
regulated. Can a spanish person that fixes roofs go to Germany to do the same work without qualification that are not
needed in Spain but needed in Germany?
Supremacy of EU law and direct effect of EU law or the effect of articles and treaties are important because it permits
to understand that there are rights under EU law that has been violated.
You can go to a national court to make EU law applied, you don’t need to go to an international court for that. The
cases we have read are all about substantive law topics about the increased taxation.
Everyone in the EU talks about the internal market. The UK wants to leave the Eu market not to be associated to it.
No one ever doubts about the existence of an internal market, it is an idea that is deeply integrated and everyone think
that it is something that really helps.
From common to internal market
⟹ why an internal market in the first place ?
Basic economic theory : How big should the market be ?
Ricardo : if a country is good at something, it should trade it with other countries. The british should try for example not
to trade olive oil but trade beer and let spanish product olive oil. It is an economic theory that is still the way of thinking
and this is why countries has import sections in their governments
There is a problem about it based on state intervention (REGARDER DEF). The premised on situation of perfect
competition and no-state intervention : any country is superior to another
There are different market legislation on different part of the market which is a problem. IF you have the production of
the same car on the same market but with different conditions, taxes, there will be unequal competition. It is not easy
to make it equal.
How did the EU deals with that ? What forms of economy exist ?
You can produce a car in MExico and export it to United state but you’ll have to pay taxes to do so. It is the idea that
you can take away anything between the states thanks to free trade.
Forms of economic integration
1. Free trade area
2. Customs union: FTA+ common external policy
3. You can move to a common market based on the Custom union + the free movement and other factors of
production. It is easy to remove tariffs and customs tariffs to be paid at the border. it is a non financial method
to trade.
The common market concerns far more issues such as the level plane field and perfect competitions.
4. Monetary Union = CM+ single currency + monetary policy
It is basically what we do have in the EU. It is very interesting to see how the dynamics can change.
5. Economic UNion= MU+ common fiscal policy
6. Political union = EC.U + central authority responsible to parliament.
The UK didn’t really decided if they wanted to be part of the 1 or 3
THE SINGLE MARKET
if you look at this treaty, the common market is defined.
art. 26 TFEU :
1. “( … )
, 2. The internal market shall comprise an area without internal frontiers in which the free movement of good,
persons, services and capital is ensured in accordance with the provisions of the Treaties.
3. ( … )”
“Without internal frontiers” = that does not mean that you don’t have border check.
It’s not link to international market.
You have four : good, persons, services and capital : what you need in economy to create wealth.
We don’t have border control thanks to the policies of common market.
You need in an economy to create wealth and capital.
The internal market is not without limits. But where do we find those limits in the treaties. There are limits, the free
movements are not limitless. They are defined in the treaties by member states.
Techniques of economic integration
Positive integration
A. Harmonization :Positive law needs you to make something, you make law. You can do regulation or centralize
everything. For example, for the production of a car : if you have an internal market of 28 member states and
you produce the car in France, you will sell it in those 28 member states. But the car has to be quite different
depending of the countries because of the regulation there is in every country.
The standards that has to be fulfilled are defined by the member states for each one. There is also a set of
rules common to those member states. We permitted an harmonization of national laws for the member states
to facilitate the trade. Instead of 28 set of law, we try to have just one.
B. Regulation: The EU is the biggest and richest market in the world .
C. Centralized model
Negative integration
That means that there is a regulatory gap, we don’t have rules. We need though, to have a mutual recognition.
A. Deregulatory : there is no rules for a common market
B. Recognition : every member has to recognize the national law there is in every state.
C. Decentralized model : non-discrimination, market access and competitive federalism. instead of having
harmonization, you have consumers, sellers, and rules for yourself that are applying in your country only.
DUTIES, CHARGES AND TAXES (aka financial restrictions)
Financial restrictions are things that are paid at the borders to cross it. Customs duties, import duties : when you cross
a custom border, you usually offers duty free products.
There is a Quota for every state: you can’t import more product (car for example) than what is (prévu)
Art 28 TFEU :
“The Union shall comprise a customs union which shall cover ALL trade in goods and which shall involve the
prohibition between Member States of customs duties on imports and exports and of all charges having equivalent
effect, and the adoption of a common customs tariff in their relations with third countries.”
Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member
States. Every product that can be traded is covered by this article. It covers things that are maybe unwanted by some
member states such as pornography or alcool.
We are always thinking about import but it also covers the export of goods. All charge have equivalent effect on the
member states. In relation with third countries, we not only have customs duty when we trade with each country but
also with the countries beyond EU. For example those rules are applicable to the trade with Turkey.
GOODS FROM THIRD COUNTRIES
ART. 28 ( 2 ) TFEU :
“The provisions of Article 30 and of Chapter 3 of this Title shall apply to products originating in Member States and to
products coming from third countries which are in free circulation in Member States.”
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.”
Whenever you import product, you pay a custom duty but then the product is in free circulation, basically meaning that
once you have imported a good into the custom union, this good is in free circulation, you won’t have to pay any more
custom duty. The provisions of good on free movements are then applied back.
Article 30 TFEU:
“Customs duties on imports and exports and charges having equivalent effect ( CEE ) shall be prohibited between
Member States ( MS ). This prohibition shall also apply to customs duties of a fiscal nature.”
What is a custom duty ?
There is a case called Statistical Levy (Com v italy, Case C-24/68), Italy tried to get away with some form of charge
that they had to pay. They tried to get the value of a product that is imported, and pay a sort of charge (levy) to make
the product part of this statistical project. It didn’t take long to begin a procedure against Italy.
The court said that an import duty had to have equivalent effects. A custom duty is any pecuniary charge, whatever
how small it is. It has to be imposed equivalently whatever the country. The final thing is that the country is charged
because the product crossed the borders. The charge is also prohibited if it is not imposed for the benefit of the state,
if it is not in competition with the domestic product. The essence of it is that the state doesn’t want any charge that has
the same effect/ equivalent of another charge of the EU law. The court is very strict with it.
To resume, it said that :
1. Any pecuniary charge, however small…
, 2. … whatever it designation and mode of application
3. … imposed unilaterally on domestic or foreign goods by reason that they cross a frontier
So a charge covered by article 30 is unlawful. There are no exceptions to it. But there are three situations in which a
charge will not be covered by the ARt 30 because it does not qualify as a CEE. These 3 situations are listed in Com v
Germany (Case C-18/87).
Charge is not covered by article 30 TFEU if it :
1. … Relates to a general system of internal dues applied systematically and in accordance with the same
criteria to domestic and imported products alike
2. … constitutes payment for a service in fact rendered to the economic operator
3. … constitutes payment for inspections carried out to fulfill obligations under EU law
The general system of internal dues has to be similar burden imposed on domestic goods. The imported good must
be paid the same amount of money per unity, than a producer of this item produced domestically. There must be a
strict equivalence, with the same criteria and the same stage of production. That means that there has to be
equivalence at every time of the production. These are the two things that has to be required. It is part of a system of
internal taxation assessment under the article 110 of the TFEU :
« 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.
Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a
nature as to afford indirect protection to other products. »
It is all about finding a coherent system within the trade.
Case Denkavit about the importing of food : the food that is imported has to be produced within certain requirements.
We have to prove that domestic products are exposed to the same production and technics. It has to be absolutely
equivalent.
Payments for service
This argument is not readily accepted. It has to be clear what is the advantage of this service. What we actually get
from it.
Statistical Levy : “advantage so general, and so difficult to assess”
Bresciani (Case 87/75): “activity (...) intended to maintain a public health inspection system imposed in the general
interest cannot be regarded as a service”
I.E that to import beef from Italy to Australia, this ultimate country is afraid of the microbes, so it might provide the
veterinary and the laboratory to check it, but if they do so, they will also have to check their domestic products.
Inspections under EU Law
You have to do something in order to fulfill the requirements.
The conditions for that is that if you require something from a country, they only have to charge the actual costs
without exceeding them.
They also have to uniform or all products concerned in the EU : you cannot have different tariffs for the same product
They have to be prescribed by the EU law in the general interest of the EU. Finally, it has to promote the free
movement of goods by neutralizing obstacles, every country has to trust the others. For example, Australia would
have to trust that the meat is of good quality.
If it is not covered by EU law, then it cannot be a charge which is mandated by European Union law. There can be
applied any charge if it is not required by Eu law on the Art 30 of the TFEU
Internal taxation
The EU cannot do more than the member states authorize it to do. Taxation is an area in which EU has a very limited
competence. There is no EU tax code. All those taxations are part of our tax system. The EU or the TFEU content
article 110 TFEU actually says 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.
Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such a
nature as to afford indirect protection to other products. »
Even if you’re selling the same product, you can’t impose a charge on another product to afford indirect protection.
You have to decide what are similar products. The first way to go for it is :
1. a formal test about the same fiscal, customs and statistical classification
2. Factual comparison: there is no need for the goods to be strictly identical. It is a factual comparison. We base
it on the basic product, the composition, the consumer needs and the production process. If I can show that
the product is similar, we will apply the same taxation
Article 110 (1) TFEU permits to avoid direct discrimination I.E that formers are treated differently from domestic
product. Indirect discrimination is that we have no difference in law but in the facts, they are treated differently
In the law, they have to pay the same tax but in fact, they won’t. In indirect discrimination, there can be a justification
for this inequality whereas there isn’t any for the direct one.
Art 110 (2) : “Any agreements or decisions prohibited pursuant to this Article shall be automatically void.”
All forms of indirect tax protection in the case of products which, without being similar within the meaning of the first
paragraph, are nevertheless in competition, even partial, indirect or potential, with certain products of the importing
country
For the products that are not similar but in competition, they are not similar but offers the same goal.
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