The Free Market and European Union Law

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European Union (EU) legislation and the case law of the Court of justice (CJEU) attempt to ensure the free movement of goods within the internal market. In order to assess how well it ensures the free movement of goods, it is first necessary to identify what is meant by an internal market within the EU. Moreover, it is essential to ascertain how Treaty Articles, as well as, case law, regulate the EU as a customs union, since sometimes charges on imports and exports, within the internal market, may introduce restrictions to the free movement of goods. Finally, it is indispensable to pinpoint, how Treaty Articles and case law from the CJEU regulate quantitative restrictions on the free movement of goods within the union, due to the fact that quotas or even complete bans are restrictions to the free movement of goods. WHAT IS AN INTERNAL MARKET It is stated in Article 3(3) of the Treaty on the European Union (TEU) that “the union shall establish an internal market”. The internal market is defined under Article 26(2) of the Treaty on the Functioning of the European Union (TFEU).[1] Using a purposive approach to interpret this Treaty Article, it can be deduced that its aim is to achieve the free circulation of goods without the imposition of any restrictions within the Union. HOW TREATIES AND CASE LAW REGULATE THE EU CUSTOMS UNION “It can be understood from Articles 26 and 28-32 of the TFEU that a customs union exists within the EU. This is because the EU has a common external tariff, in addition to a free trade area.”[2] Article 30 TFEU restricts MS from imposing any custom duties on imports and exports, and any charges having an equivalent effect (CHEE). It also states that it covers “all trade in goods”. [3]The CJEU added clarity to the Treaty Article by providing a definition for “goods”. They were defined as “products with monetary value and which are capable of forming the subject of commercial transactions.[4] A customs duty is comprised of two defining elements. To begin with, it is a pecuniary charge. Secondly, it is imposed on goods as a consequence of them crossing a border. It must be mentioned that custom duties can never be justified, due to the fact that they are a clear violation of Article 30. The prohibition of custom duties is a clear example of the EU ensuring the free movement of goods by using legislation in collaboration with case law from the CJEU. It has been provided by the CJEU that a duty may be classed as a CHEE, provided that it meets certain criteria: “(a) it must be enforced unilaterally at the time of importation (b) it must be imposed only on a specific product which is imported from other MS whilst excluding such duties on similar domestic products; and (c) it must have the consequence of altering the price of the product.”[5] These criteria were further developed by the CJEU to include “any pecuniary charge, however small”.[6] Thus, it can be construed that there is “no de minimis principle in relation to the Treaty articles relating to the free movement of goods”.[7] Consequently, it can be argued that the EU safeguards the free movement of goods to a great extent, by restricting even the smallest CHEE. The CJEU has established its own set of rules on when charges can be made lawfully for services performed. An example of such rules derived from rulings of the CJEU, was the one established in the case of Bresciani, where the rule that veterinary checks and charges implemented as a service are acceptable, was established. [8] Hence, the EU provides MS with some flexibility on when charges are justifiable, providing their primary motive is not the restriction of free movement of goods. The TFEU provides guidelines for taxes being placed on goods originating from other MS. The CJEU established that Article 90 EC (now 110 of the TFEU) was to have direct effect, and is an essential foundation of the Common Market. [9] Article 110 does not prohibit MS from imposing national taxation, however, it prohibits taxation that is deemed to discriminate between national products and imported products from other MS, either directly or indirectly. Furthermore, Article 110 prohibits MS from imposing internal taxations on imports in order to indirectly protect other products.[10] Further clarity to Article 110 was provided by the CJEU in Commission v France (Reprographic Machines), where the court provided a definition for “taxation”. It was defined as “a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike”. [11] This is a clear example of how EU legislation and the CJEU ensure the free movement of goods. As abovementioned, Article 110 covers both direct and indirect discrimination. Direct discrimination is where nationally produced goods and imported goods, of a similar nature, are deliberately treated differently. Whereas indirect discrimination, ostensibly treats domestic and imported goods in the same way, however, the result is that imports are, in actual fact, disadvantaged. An example where the CJEU outlawed indirect discrimination was in the case of Humbolt v Directeur des Services Fiscaux.[12] In this case, the French system of annual vehicle taxation, charged cars with lower power ratings with a lower tax than those with higher power ratings. Since France did not produce higher power rating cars, the French taxation methods were deemed to be a type of indirect discrimination. By catching both types of discrimination, this indicates that the EU ensures the free movement of goods by providing a wide scope for Article 110. It could be argued that, if Article 110 also prohibited MS from imposing national taxation, it would resolve all issues with regard to discriminatory taxation. However, MS are not willing to give up their sovereignty, thus, harmonization of internal taxations may actually be impossible. HOW TREATY ARTICLES AND CASE LAW REGULATE QUANTITATIVE RESTRICTIONS WITHIN THE INTERNAL MARKET Barriers to trade that do not involve direct payments of money, are referred to as quantitative restrictions. Articles 34-35 of the TFEU restrict MS from imposing quantitative restrictions on imports and exports respectively. They also restrict MS from applying any measures having an equivalent effect (MHEE) on imports or exports. However, since restricting the free movement of exports is not a common occurrence, this essay will focus on Article 34 which regulates restrictions on imports. When it comes to identifying the scope of Article 34 of the TFEU, the CJEU has determined that it is directly effective, but only vertically against measures adopted by the state.[13] In some instances, the CJEU may be prepared to find that it also applies to private bodies where there is a substantial degree of state involvement or funding. This was certainly the case in Commission v Ireland (Buy Irish).[14] A campaign promoting domestically produced goods administered by the Irish Goods Council, but heavily subsidised by the government, was held to fall within the scope of Article 34 of the TFEU. This exemplifies the extent of Article 34, illustrating that the EU strives to achieve free movement of goods in both public and private sectors of an economy. Similar to custom duties, quantitative restrictions are easy to identify. The CJEU clarified Article 34 of the TFEU by defining the term “quantitative restrictions” as “measures that amount to a total or partial restraint of imports, exports or goods in transit”.[15] Thus, illustrating that Articles 34 and 35 cover not only complete bans, but also quotas, showing that the EU attempts to ensure, not just partial, but complete free movement of goods. Measures having equivalent effect (MHEE) are harder to identify. However, clarifications are provided by secondary legislation and the jurisprudence of the CJEU. In the case of Dassonvile, the CJEU defined MHEE as “all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.” [16] This definition is exceedingly wide in scope, meaning that any measure which is capable of hindering imports or exports in any way will be caught by Article 34 or 35 of the TFEU. Tim Connor characterizes this definition as “a potential weapon of mass destruction”.[17] This is because there existed an accumulating trend of persons involved in trade, calling upon Article 34 of the TFEU to challenge any rules which interfered with their commercial freedom.[18] Directive 70/50, even though now has expired, contains useful guidance on the scope of MHEE. The Directive recognises two classifications of MHEE. First under Article 2, it makes reference to measures which apply differently to domestic and imported goods. These measures are referred to as “distinctly applicable measures” due to the distinction made between domestically produced goods and imports. Secondly, under Article 3 the directive makes reference to measures that make no distinction between imported and domestic products. These measures are referred to as “indistinctly applicable measures” and may sometimes fall within the scope of Articles 34 and 35 of the TFEU. [19] The CJEU added the fundamental principle of “mutual recognition” to the free movement of goods in the case of Cassis de Dijon.[20] This principle provides that goods that are lawfully produced and marketed in one MS, should face no restrictions when being introduced into another MS. This is an example of the CJEU and its jurisprudence ensuring the free movement of goods within the internal market. EXCEPTIONS TO PROHIBITIONS OF QUANTITATIVE RESTRICTIONS AND MHEE Article 36 of the TFEU provides certain criteria where applying directly discriminatory quantitative restrictions may be acceptable. Such criteria include “public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property”.[21] However, Article 36 goes further and states that the aforementioned justifications are subject to limitations. It states that “such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.”[22] Therefore, once again illustrating that even though MS are given certain leeway, the EU imposes restrictions to the derogations in order to ensure the free movement of goods. The aforementioned assumption of “mutual recognition” will sometimes be set aside if the “rule of reason” applies. It is provided by the “rule of reason” that barriers to trade resulting from product marketing provisions, that differ from those which apply in another MS, may be permissible so long as they satisfy one of the mandatory requirements. Mandatory requirements were listed in Cassis de Dijon by the CJEU as “the effectiveness of fiscal supervision, the protection of public health, the fairness of consumer transaction and the defence of the consumer”.[23] On the other hand, this is a non-exhaustive list. The CJEU is prepared to accept other measures and interests which deserve protection being classed as mandatory requirements. An example of an additional measure which was accepted, was environmental grounds in the case of Commission v Denmark (Disposable Beer Cans).[24] It could be argued here, that this additional measure places a restriction on the free circulation of goods within the internal market. This is due to the fact that imported products would have to comply with Denmark’s product marketing provisions in order for them to enter the Danish market. However, as characterised by Niamh Nic Shuibhne, justifications to the restrictions of free movement of goods are “an evolving framework”. [25] Since environmental issues are of ever-growing societal concern, the CJEU has adapted to this by accepting environmental protection as a justification to MHEE. Taking a synoptic view, it could be argued that the CJEU, in such circumstances, places restrictions on the free movement of goods instead of ensuring it. As abovementioned, there existed an ever-growing tendency of trades calling upon Article 34 as a way of challenging any rules which contravened with their everyday commercial transactions. Such claims may have not even restricted the free movement of goods. Thus, the court considered the re-examination of case law, would be necessary to clarify the law concerning this matter, in order to limit the flow of unnecessary cases. Cases which came after Cassis uncovered a distinction separating “indistinctly applicable measures” into two categories. To begin with, there are rules which relate to goods themselves, known as “dual burden” rules. [26] The second set of rules, are concerned with the marketing of products. These are called “equal burden” rules. This because they impose the same burden (equal) on national and imported goods. This was articulated in the case Keck and Mithouard. In this case, Keck and Mithouard were prosecuted for breaking French competition law due to the fact that they were reselling goods at a loss. They had tried to use Article 34 as a defence, stating that this restricted the free movement of goods. However, the CJEU recognised that French legislation had restricted the total volume of sales. It added by stating that national efforts to prevent “selling arrangements” do not fall within the Dassonville formula for MHEE, “provided that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States”.[27] Provisions like these do not hinder market access for imports any more than they do for nationally produced goods, thus they fall outside of the scope of Article 34. However, even though they do not hinder market access to imports, it could be argued that this acts as an indirect discrimination on imports. This is due to the fact that national rules imposing a hypothetical, equal burden on imports and exports, nevertheless have a differential impact on each of them. Thus, creating uncertainty in the law. This was articulated by Advocate General Jacobs, where he stated “the effect of the Keck judgement is still uncertain.” [28] Consequently, it can be construed that the CJEU justifies the discriminatory restrictions to the free movement of goods, thus, not ensuring the free movement of goods. On the other hand, it must be acknowledged that Keck only applies to “selling arrangements” such as, the opening hours of shops, [29]the types of retail stores that can sell certain types of goods, [30] as well as product advertising[31] but not to product characteristics. However, as aforementioned Keck specifies that a “selling arrangement” will only be able to escape Article 34 if it applies to all traders that are affected in the nation. Thus, it could be argued that the EU, even though, it provides exceptions to the enforcement of Article 34, it places further restrictions on those exceptions, ensuring the free movement of goods. CONCLUSION In conclusion, it can be deduced that the EU does what it can in order to ensure the free movement of goods, whether it be through the passing of EU legislation, or through the jurisprudence of the CJEU. In 2013 intra-community trade was much higher than the level of exports to non-EU members.[32] This, gives the impression that a free circulation of goods is ensured within the internal market. On the other hand, cases concerning MS restricting the free movement of goods are still rising, giving the impression that a unified market still faces many obstacles. However the CJEU in coordination with EU legislation will overturn the situation and penalize those in breach of an EU fundamental principle, thus ensuring the free movement of goods. BIBLIOGRAPHY Connor T, ‘Accentuating the Positive: The “Selling Arrangement”, The First Decade, and Beyond’ (2005) 54 International & Comparative Law Quarterly 127 European Commission, ‘Free Movement of Goods Guide to the Application of Treaty Provisions Governing the Free Movement of Goods’ [2010] Luxembourg: Publications Office of the European Union ——, Free Trade Is a Source of Economic Growth (Luxembourg: Publications Office of the European Union 2013) ‘Eurostat- Statistics Explained’ (Eurostat) <http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/International_trade_in_goods#Intra-EU_trade> Foster N, EU Law Directions (Oxford University Press 2012) Nic Shuibhne N, ‘The Free Movement of Goods and Article 28 EC : An Evolving Framework’ (2002) 27 European Law Review 408 Weatherill S, ‘FREE MOVEMENT OF GOODS’ (2009) 58 International & Comparative Law Quarterly 985 ‘Westlaw UK - Online Legal Research from Sweet & Maxwell’ (Westlaw UK) <http://legalresearch.westlaw.co.uk/>
[1] Consolidated Version of the Treaty on the Functioning of the European Union [2008] Article 26(2) [2] Nigel Foster, EU Law Directions (Oxford University Press 2012) 264. [3] Consolidated Version of the Treaty on the Functioning of the European Union [2008] Article 30 [4] Case 7/68 Commission v Italy (Art Treasures) ECR 423 [5] Case 2-3/62 Commission v Luxembourg & Belgium (Gingerbread) [1963] C.M.L.R. 199; [1962] 8 Recueil 813. [6] Case 24/68 Commission v Italy (Statistical Levy) [1969] ECR 193 [7] European Commission, ‘Free Movement of Goods Guide to the Application of Treaty Provisions Governing the Free Movement of Goods’ [2010] Luxembourg: Publications Office of the European Union 11. [8] Case 87/75 Bresciani [1976] ECR 129 [9] Case 57/65 Alfons Lütticke GmbH v Hauptzollamt Sarrelouis [1966] ECR 205 [10] Consolidated Version of the Treaty on the Functioning of the European Union [2008] Article 110 [11] Case 90/79 Commission v France (Reprographic Machines) [1981] ECR 283 [12] Case 112/84 Humbolt v Directeur des Services Fiscaux [1985] ECR 1367 [13] Case 74/76 Ianelli and Volpi SpA v Meroni [1977] ECR 557 [14] Case 249/81 Commission v Ireland (Buy Irish) [1982] ECR 4005 [15] Case 2/73 Geddo v Ente Nazionale Risi [1974] ECR 865 [16] Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837 [17] Tim Connor, ‘Accentuating the Positive: The “Selling Arrangement”, The First Decade, and Beyond’ (2005) 54 International & Comparative Law Quarterly 127, 3. [18] European Commission (n 5) 12. [19] Commission Directive 1970/50/EEC 22 December 1969 based on the provisions of Article 33 (7), on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty[1970] OJ L13/29 [20] Case 120/78 Rewe-Zentral AG v Bundesmonpolverwaltung fur Brantwein (Cassis de Dijon) [1979] ECR 649 [21] Consolidated Version of the Treaty on the Functioning of the European Union [2008] Article 36 [22] ibid [23] Case 120/78 Rewe-Zentral AG v Bundesmonpolverwaltung fur Brantwein (Cassis de Dijon) [1979] ECR 649 [24] Case 302/86 Commission v Denmark (Disposable Beer Cans) [1988] ECR 4607 [25] Niamh Nic Shuibhne, ‘The Free Movement of Goods and Article 28 EC : An Evolving Framework’ (2002) 27 European Law Review 408, 9. [26] Case 261/81 Walter Rau Lebensmittelwerke v De Smedt PVBA (Margarine) [1982] ECR 3961 [27] Cases 267-268/91 Keck and Mithuard [1993] ECR 6097 [28] Case 412/93 Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA [1995] ECR 179 [29] Cases 401-402/92 Tankstation 't Heukske vof and J. B. E. Boermans [1994] ECR 2199 [30] Case 391/92 Commission v Greece [1995] ECR 1621 [31] Cases 34-36/95 Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB [1997] ECR 3843 [32] ‘Eurostat- Statistics Explained’ (Eurostat) <http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/International_trade_in_goods#Intra-EU_trade>.
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