Question:
Claude owns a bakery in Belgium, located near the French border. He wishes to import dried apricots from Turkey for a new range of buns but is being charged 3 euros per box at the border. A friend who owns a bakery in Germany tells him that he is only charged 2 euros when he imports the same dried apricots.
He also imports coarse stoneground flour from Ireland but has just been informed that there may be a problem with tiny insects, known as weevils, getting into the flour at the mills. As a precaution the Belgian authorities have decided to start inspecting the flour at the port of Ostend where it arrives, and Claude will be charged 10 euros per tonne for the inspection. As these inspections may take up to a week (the insects being particularly small and hard to detect), he will have to store the flour sacks in a warehouse in Ostend, at a charge of 5 euros per tonne per night.
A group of militant French bakers, angry at the increasing volume of imported bakery products being sold in French shops, has launched a campaign of �direct action�. The group recently halted one of Claude�s vans in France and threw its entire load into a nearby river. French police officers who witnessed the event refused to intervene or to arrest any of those involved. The French police have since issued a statement saying that intervention would have provoked an escalation of the violence and led to increased damage to property.
Claude�s �Belgian Buns� are one of his most popular lines with French consumers, but he believes that the volume of buns he can export to France is limited because of a French rule requiring bakeries to close between 1pm and 4pm.
After much thought, Claude has decided to buy a small specialist chocolate business in the neighbouring town. As Belgian chocolates have an excellent reputation as luxury goods, he designs and pays for an advertising campaign with the theme �Belgian chocolates are real chocolates�. His local Chamber of Commerce (run by the Mayor of the town) approves of the campaign and has paid for the newspaper advertisements.
Advise Claude as to the legal issues raised in each of the five paragraphs.
Please , please read the following notes and example . please use cases
FREE MOVEMENT OF GOODS
Internal Market Art 28(1) TFEU: maintenance of �a customs union which shall cover all trade in goods and which shall involve the prohibition between Members 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�.
Financial Barriers to Trade
Art 30 TFEU (was Art 25 EC):
�Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.�
26/62 Van Gend en Loos [1963] ECR 1
The meaning of �goods�
7/68 Commission v Italy (Art Treasures) [1968] ECR 423
��products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions��
C-97/98 J�gerski�ld v Gustafsson [1999] ECR I-7319
Goods from third countries:
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�have been levied in that Member State��
The effect, not the purpose
7/68 Commission v Italy (Art Treasures) ) [1968] ECR 423
Fairhurst, p563: �In rejecting the Italian argument, and confirming that the reason for the charge is irrelevant, the Court has made a significant impact on removing the financial frontiers which could otherwise have remained in a disguised form and thus impacted upon the free movement of goods.�
24/68 Commission v Italy (Statistical Levy) [1969] ECR 193
The Court said:
�The justification for this prohibition is based on the fact that any pecuniary charge, however small, imposed on goods by reason of the fact that they cross a frontier constitutes an obstacle to the movement of such goods.�
2 and 3/69 Sociaal Fonds voor de Diamantarbeiders [1969] ECR 211
Charges having an equivalent effect to a customs duty (CHEEs)
24/68 Commission v Italy (Statistical Levy) [1969] ECR 193
The Court said:
��any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning � [of Articles 28 and 30 TFEU], even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product.� It also said that the prohibition ��constitutes a fundamental rule which�does not permit of any exceptions�.
The exceptions
18/87 Commission v Germany (Live Animal Imports) [1988] ECR 5427
– payment for a service rendered to the trader at his request;
– payment for an inspection carried out to fulfil obligations under EU law;
– a charge that relates to a general system of internal dues applied under Art 110 TFEU (see below).
132/82 Commission v Belgium (Public Warehouses) [1983] ECR 1649
170/88 Ford Espa�a v Spain [1989] ECR 2305
24/68 Commission v Italy (Statistical Levy) [1969] ECR 193
87/75 Bresciani [1976] ECR 129
46/76 Bauhuis v Netherlands [1977] ECR 5
The Court said that fees could only be charged for inspections if:
– the inspections are obligatory and uniform for all such products across the EU;
– they are required by EU law;
– the charge is at actual cost;
– they promote free movement of goods by replacing possible unilateral measures permitted under Art 36 TFEU (see below)
89/76 Commission v Netherlands (International Plant Protection Convention) [1977] ECR 1355.

Internal Taxation Art 110 TFEU
Art 110 TFEU (was Art 90 EC):
�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.�
(Following 57/65 Alfons L�tticke [1966] ECR 205 this Article is directly effective.)
(a) Art 110(1) Similar products
168/78 Commission v France (Tax on Spirits) [1980] ECR 347
243/84 John Walker v Ministeriet for Skatter [1986] ECR 875
184/85 Commission v Italy (Bananas) ) [1987] ECR 4157
(27/76 United Brands [1978] ECR 207)
57/65 Alfons L�tticke [1966] ECR 205
112/84 Humblot [1985] ECR 1367
(b) Art 110(2) Protective effect
170/78 Commission v UK (Excise Duties on Wine) [1983] ECR 2263
184/85 Commission v Italy (Bananas) [1987] ECR 4157
NB 193/85 Co-operativa Cofrutta [1987] ECR 2085
Non-financial Barriers to Trade
Art 34 TFEU (was Art 28 EC):
‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.’
Actions by the state and actions by individuals
249/81 Commission v Ireland (Buy Irish) [1982] ECR 4005
222/82 Apple and Pear Development Council [1983] ECR 4083
Failure to act by the state
C-265/95 Commission v France (French Farmers’ Blockades) [1997] ECR I-6959
The Court said that
“…the measures adopted by the French Government were manifestly inadequate to ensure freedom of intra-Community [i.e. intra-Union] trade in agricultural products on its territory by preventing and effectively dissuading the perpetrators of the offences in question from committing and repeating them.
“Although it is not impossible that the threat of serious disruption to public order may, in appropriate cases, justify non-intervention by the police, that argument can, on any view be put forward only with respect to a specific incident and not, as in this case, in a general way covering all the incidents cited by the Commission…”
R v Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd [1995] 4 All ER 364
C-112/00 Schmidberger [2003] ECR I-5659
Quantitative restrictions
This concept is reasonably straightforward; it includes quotas and outright bans, which were abolished early in the days of the Common Market. A definition may be found in:
2/73 Geddo v Ente [1973] ECR 865
“The prohibition on quantitative restrictions covers measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit.”
34/79 R v Henn and Darby [1979] ECR 3795
C-170/04 Rosengren [2007] ECR I-4071
Measures having equivalent effect to quantitative restrictions (MEQRs)
8/74 Procureur du Roi v Dassonville [1974] CR 837
The Court said:
“All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community [i.e. intra-Union] trade are to be considered as measures having an effect equivalent to quantitative restrictions.” (The Dassonville Formula)
Directive 70/50/EEC of December 1969
Distinctly applicable measures
51-54/71 International Fruit Company (No.2) [1971] ECR 1107
154/85 Commission v Italy (Import of Foreign Motor Vehicles) [1985] ECR 1753
4/75 Rewe-Zentralfinanz v Landwirtschaftskammer (Apples) [1975] ECR 843
249/81 Commission v Ireland (Buy Irish) [1982] ECR 4005
113/80 Commission v Ireland (Irish Souvenirs) [1981] ECR 1625
72/83 Campus Oil Ltd [1983] ECR 2727
Indistinctly applicable measures
120/78 (Cassis de Dijon) Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649
‘The rule of mutual recognition’:
“There is…no valid reason why, provided that they have been lawfully produced and marketed in one of the Member States, alcoholic beverages should not be introduced into any other Member State;…”
207/83 Commission v UK (Origin Marking) [1985] ECR 1202
45/87 Commission v Ireland (Dundalk Water Supply) [1988] ECR 4929
82/77 Openbaar Ministerie v Van Tiggele [[1978] ECR 25
261/81 Walter Rau v de Smedt [1982] ECR 3961
Derogations and defences to Art 34 TFEU
These may be found in Art 36 TFEU and also in Cassis de Dijon.
For Distinctly Applicable Measures – use Art 36 ONLY
For Indistinctly Applicable Measures – use Art 36 AND Cassis
113/80 Commission v Ireland (Irish Souvenirs) [1981] ECR 1625
Art 36 TFEU (was Art 30 EC):
The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals and plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
C-1/96 R v MAFF ex parte Compassion in World Farming [1998] ECR I-1251
174/82 Officier van Justitie v Sandoz [1983] ECR 2445
C-24/00 Commission v France [2004] ECR I-1277 at para 67
Public morality
34/79 R v Henn and Darby [1979] ECR 3795
121/85 Conegate Ltd v HM Customs and Excise [1986] ECR 1007
(115-116/81 Adoui and Cornuaille v Belgium [1982] ECR 1665)
Public policy and public security
C-265/95 Commission v France (French Farmers’ Blockades) [1997] ECR I-6959
72/83 Campus Oil [1983] ECR 2727
Public health
40/82 Commission v UK (Turkeys/Imports of Poultry Meat/Newcastle Disease)
124/81 Commission v UK (UHT Milk) [1983] ECR 203
174/82 Officier van Justitie v Sandoz [1983] ECR 2445
Protection of national treasures
Compare 7/68 Commission v Italy (Art Treasures) [1968] ECR 423
Directive 93/7/EC the export of cultural property,
Regulation 3911/92/EEC export of cultural goods to third countries.
Protection of industrial and commercial property
C-92/92 Collins v Imtrat [1993] ECR I-5145
C-388/95 Belgium v Spain (Rioja wine exports) [2000] ECR I-3123
Cassis de Dijon and the Cassis rule of reason
120/78 (Cassis de Dijon) Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649
The �rule of reason� or �mandatory requirements defence�.
“Obstacles to movement within the [Union] resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognised as being 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.”
Public health
178/84 Commission v Germany (Beer Purity Laws) [1987] ECR 1227
95/01 Greenham v Abel [2004] ECR I-413
Consumer protection
178/84 Commission v Germany (Beer Purity Laws) [1987] ECR 1227
C-46/93 Brasserie du Pecheur [1996] ECR I-1029
Other cases �resulting� in labelling
286/86 Minist�re Public v Deserbais [1988] ECR 4907
C12- and C14-00 Commission v Spain and Commission v Italy [2003] ECRI-788/79
Italian State v Gilli and Andres [1980] ECR 2071
261/81 Walter Rau v de Smedt [1982] ECR 3961
Other mandatory requirements
(a) Protection of the environment
302/86 Commission v Denmark (Returnable bottles) [1988] ECR 4607
C-320/03 Commission v Austria (Transport on the A12 motorway) [2005] ECR 9871
(b) Protection of culture
60-61/84 Cin�th�que [1985] ECR 2605
379/87 Groener [1989] ECR 3967
(c) Diversity of the press
C-368/95 Familiapress [1997] ECR I-3689
(d) Social-cultural characteristics
145/88 Torfaen Borough Council v B&Q [1989] ECR 3851
The Keck judgment
C-267, 268/91 Keck and Mithouard [1993] ECR I-6097
“In view of the increasing tendency of traders to invoke…[Art 34] as a means of challenging any rules whose effect is to limit commercial freedom even where such rules are not aimed at products from other Member States, the court considers it necessary to re-examine and clarify its case law on this matter.”…
“However, 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 judgement…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 fact, the marketing of domestic products and those from other Member States.”
C-401,402/92 Tankstation [1994] ECR I-2199
C-292/92 H�ndermund [1993] ECR I-6787
C-412/93 Leclerc-Siplec [1995] ECR I-179
C-470/93 Mars [1995] ECR I-1923
C-368/95 Familiapresse [1997] ECR I-3689
C-405/98 Gourmet International Products [2001] ECR I-1795
FREE MOVEMENT OF GOODS
Internal Market Art 28(1) TFEU maintenance of �a customs union which shall cover all trade in goods and which shall involve the prohibition between Members 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�.
So it is an internal free trade area along with a common external tariff. Once goods from third countries are in the EU and have paid the appropriate external tariff (CCT) they are in �free circulation� and must be treated like any other goods produced within the EU (Art 28(2) TFEU).
Customs duties are long gone as well as border controls, although various border formalities can still be necessary. Still many invisible barriers e.g. different product standards and many national measures aimed at consumer and environmental protection. While many are valid and well-intentioned, they can also be misused to give the domestic product an unfair competitive advantage. The Commission and the ECJ are aware and alert to problematic national measures and many of the cases we�ll be looking at involve measures that, accidentally or deliberately, have an adverse effect on trade.
Work is continuing on harmonising measures that will allow acceptable product and other standards across the EU but it�s a massive task and until then producers are reliant on various legal procedures that will allow for scrutiny of a particular national measure. (One of these is the Enforcement Procedure (Arts 268-270 TFEU) and these cases can easily be identified as �Commission v State X�.)
We will look at this topic under two headings:
– Financial Barriers to Trade;
– Non-financial Barriers to Trade.
 
Financial Barriers to Trade
Art 30 TFEU (was Art 25 EC):
�Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.�
26/62 Van Gend en Loos [1963] ECR 1
This case establishes that Art 12 EEC (the original version of this Article) is directly effective.
The meaning of �goods�
7/68 Commission v Italy (Art Treasures) [1968] ECR 423
Tax imposed on export of items of an �artistic, historical, archaeological or ethnographic nature�. Italy claimed that such items were �cultural articles� and not �goods� in the generally accepted commercial sense. The Court decided that �goods�, in the context of the Article, meant �products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions�. (The Italian tax itself was proportionate to the value of the items.)
C-97/98 J�gerski�ld v Gustafsson [1999] ECR I-7319
A case about the right of a fishing licence holder to fish in private waters. One argument made by the claimant was that the fishing licence somehow breached Art 30 TFEU, so the question was whether the licence came under the heading of �goods�. The Court disagreed and said that even though proof of the licence was evidenced by a piece of paper, for which money had been paid, the licence was effectively a �service�, not a �good�. It drew a distinction between an �intangible� benefit, such as a licence, and a �tangible� good, such as a can of Coke.
Goods from third countries:
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�have been levied in that Member State��
The effect, not the purpose
7/68 Commission v Italy (Art Treasures) ) [1968] ECR 423
See above. Italy also argued that the purpose of the tax was to protect the artistic heritage of the country and that it made only an insignificant contribution to the state�s budget. The Court again took a strict approach and declared that the purpose of the charge was irrelevant � the important point was that it raised the price of the exported article and hence had a restrictive effect on the export trade in the goods.
Fairhurst, p563: �In rejecting the Italian argument, and confirming that the reason for the charge is irrelevant, the Court has made a significant impact on removing the financial frontiers which could otherwise have remained in a disguised form and thus impacted upon the free movement of goods.�
24/68 Commission v Italy (Statistical Levy) [1969] ECR 193
Italy imposed a levy on exports to other MS to pay for the collection of statistical data on trade patterns, claiming that these data were useful both to MS and also to the exporters. The Court said: �The justification for this prohibition is based on the fact that any pecuniary charge, however small, imposed on goods by reason of the fact that they cross a frontier constitutes an obstacle to the movement of such goods.� It also referred to �the general and absolute nature of the prohibition�.
2 and 3/69 Sociaal Fonds voor de Diamantarbeiders [1969] ECR 211
A small levy imposed on imported diamonds was found to be in breach of Art 30 TFEU even though it had no protectionist purpose (Belgium does not produce raw diamonds!) and was intended to provide social security benefits for workers in the diamond cutting profession.
Charges having an equivalent effect to a customs duty (CHEEs)
24/68 Commission v Italy (Statistical Levy) [1969] ECR 193
See above. The Court said: ��any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense, constitutes a charge having equivalent effect within the meaning � [of Articles 28 and 30 TFEU], even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with any domestic product.� It also said that the prohibition ��constitutes a fundamental rule which�does not permit of any exceptions�.
The exceptions
18/87 Commission v Germany (Live Animal Imports) [1988] ECR 5427
Fees were charged for the import of live animals into Germany to cover the cost of inspections required under an EU Directive. Were such charges prohibited as CHEEs? The Court took the opportunity to sum up some previous case law (discussed below) and set out a short list of accepted charges that would not fall foul of Art 30 TFEU:
– payment for a service rendered to the trader at his request;
– payment for an inspection carried out to fulfil obligations under EU law;
– a charge that relates to a general system of internal dues applied under Art 110 TFEU (see below).
Looking at the individual precedents for the first two exceptions:
132/82 Commission v Belgium (Public Warehouses) [1983] ECR 1649
Customs clearance may be undertaken at public warehouses within a MS instead of at the border. Belgium was charging for temporary storage of goods at these facilities at the request of the trader. Charges were also levied on traders even when storage was not needed. The Court accepted that a charge could be made for the storage provided it was at the direct request of the trader and not imposed on him. However, the charge had to be �commensurate with that service�, i.e. at the actual cost, and those traders who did not request storage could not be charged at all.
170/88 Ford Espa�a v Spain [1989] ECR 2305
The charge, which was itself legal, could not be a percentage of the declared value of the imported goods but had to be the actual cost of the service rendered.
24/68 Commission v Italy (Statistical Levy) [1969] ECR 193
See above. Even though it was argued that the statistical data was of value to traders, it was not provided at their request and was ��an advantage so general, and so difficult to assess�� that it could not be said to be a specific benefit to them. Consequently no charge could be levied.
87/75 Bresciani [1976] ECR 129
Italy levied a charge for compulsory veterinary and public health inspections on the import of raw cowhides. Even though a good case could be made for the inspections themselves (see below re Arts 34 and 36), the question was whether the trader could be charged for them. Could they be considered as a service to the trader? The Court said: �The activity of the administration of the State intended to maintain and public health inspection system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge. If, accordingly, public health inspections are still justified at the end of the transitional period, the costs which they occasion must be met by the general public which, as a whole, benefits from the free movement of [Union] goods.� The service was not to the trader but to the general public, and the general public should therefore bear the cost.
46/76 Bauhuis v Netherlands [1977] ECR 5
Fees were charged for veterinary inspections of pigs imported to the Netherlands. The Court said that fees could only be charged for inspections if:
– the inspections are obligatory and uniform for all such products across the EU;
– they are required by EU law;
– the charge is at actual cost;
– they promote free movement of goods by replacing possible unilateral measures permitted under Art 36 TFEU (see below)
(The second and third of these are the most important.) Note also that inspections required under an international treaty to which MS were party could also be charged for under the Bauhuis conditions, see 89/76 Commission v Netherlands (International Plant Protection Convention) [1977] ECR 1355.
Internal Taxation Art 110 TFEU
Harmonisation of internal taxation may only come about by legislation adopted by the Council acting unanimously so there has been little movement in this area of EU law. Consequently each MS sets its own tax levels and opportunities would appear to exist for discriminatory tax levels on goods imported from other MS. Art 110 is intended to take care of this. Whereas Art 30 is concerned with charges on goods because they cross a frontier, Art 110 covers charges imposed within a MS�s territory that nonetheless may have the effect of making the imported product more expensive than the domestic equivalent. The Article must guarantee the �complete neutrality� of internal taxation as regards competition between domestic and imported products.
Art 110 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.�
(Following 57/65 Alfons L�tticke [1966] ECR 205 this Article is directly effective.)
Note that this Article has two paragraphs. Art 110(1) concentrates on the taxing of the same or similar products in a different way. Art 110(2) looks at the taxing of differing but competing products in such a way that the domestic product is protected.
(c) Art 110(1) Similar products
168/78 Commission v France (Tax on Spirits) [1980] ECR 347
France had higher tax rates for spirits based on grain (e.g. whisky, vodka) than those based on wine or fruit (e.g. cognac, calvados). France produces very little grain-based spirits but is well known for its cognac and other wine or fruit based spirits. In considering whether the products were sufficiently similar to come under this Article, the Court decided that they would have to �have similar characteristics and meet the same needs from the point of view of consumers�. Such a definition could be applied to all types of spirits covered by the two tax rates.
243/84 John Walker v Ministeriet for Skatter [1986] ECR 875
Compare with the above case. The two sets of products here were liqueur fruit wine (e.g. cassis) and whisky. The Court looked at the alcoholic content, method of production and consumer perceptions and held that they were not similar.
184/85 Commission v Italy (Bananas) ) [1987] ECR 4157
Italy levied a heavy consumption tax on bananas which was not levied on other fruit. Italy produced almost no bananas, importing them from France, but was a major producer of most other fruit. The Court looked at the �objective characteristics� of bananas and decided that they were not similar to other fruit. The case then went on to look at Art 110(2) see below. (NB The case 27/76 United Brands [1978] ECR 207 also compared bananas to other fruit but in the context of Art 102 TFEU. See eventually your notes on Competition Law.)
Direct discrimination is easy to spot and correspondingly now very rare.
57/65 Alfons L�tticke [1966] ECR 205
An internal tax was levied on imported dried milk but not on the domestic equivalent. It was directly discriminatory and breached the Article.
Indirect discrimination is more difficult; it may not differentiate between products at first sight, but may in effect be more onerous on the import.
112/84 Humblot [1985] ECR 1367
France had two different types of annual car tax, depending on the power rating of the car. This rating was arrived at by a complicated calculation, but came out in �fiscal horsepower� or CV. (Remember the old 2CV cars?) Up to 16 CV the tax increased pro rata up to a maximum of 1,100 francs. Above 16 CV there was a flat rate tax of 5,000 francs. It just so happened that no car produced in France had a CV above 16, and only imported cars would attract the 5,000 franc tax. Did the French tax system discriminate indirectly against imported cars? The Court said that even though the system appeared to make no formal distinction between imported and domestic, �it manifestly exhibits discriminatory or protective features�. They pointed out the significant jump in the tax rate found at the 16 CV level, and said that the discrimination was made even worse by the fact that this was an car tax paid every year, not just on purchase.
(d) Art 110(2) Protective effect
170/78 Commission v UK (Excise Duties on Wine) [1983] ECR 2263
The tax levied by the UK on certain wines was about five times that levied on beer by volume. (38% of the sale price of wine compared to 25% for beer.) At the time the UK produced very little wine but vast quantities of beer. It was quickly established that the products could not be considered similar, but was the tax on wine (mostly imported) protecting the domestic product, beer?
Considerable research was undertaken by the Court, including consumer habits and the �substitutability� of the two products � although they made special note that such habits could and would change over time and it was important that any tax policy of a MS should not affect those natural changes. (And they also noted that such research should not be confined to the practices of a single MS.) As a result they chose to look at the competitive relationship between the lightest and cheapest wines as compared with beer. They said that �the effect of the UK tax system [was] to stamp wine with the hallmarks of a luxury product�, thus reducing its appeal to the consumer as a genuine alternative to the domestically produced beer.
184/85 Commission v Italy (Bananas) [1987] ECR 4157
See above. The Court did come to the conclusion that the banana tax had a protective effect on the other domestically produced fruit. Although they were not sufficiently �similar� they were still in broadly the same consumer market. It was �clear evidence of protectionism�.
NB 193/85 Co-operativa Cofrutta [1987] ECR 2085
A preliminary reference case (Art 267 TFEU) on the same point and judgment given on the same day. Some textbooks will refer to this instead of 184/85.
Non-financial Barriers to Trade
‘Non-financial barriers’ covers all other impediments to trade that do not involve money being paid to the state in one form or another. The two relevant Treaty articles are Arts 34 and 36 TFEU. (Art 35 TFEU is similar to Art 35 but covers exports.)
Art 34 TFEU (was Art 28 EC):
‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.’
Unlike Art 30 (financial barriers), it is possible for a MS to impose limited restrictions on trade that would breach Art 34 provided that they can be justified either under Art 36 or under the Cassis rule of reason (see below). Please note – you cannot use Art 36 or Cassis to justify the imposition of a financial charge.
The intention of this legislative framework is to balance the goal of a free and competitive market in goods across the EU with the genuine need, in limited circumstances, to protect essential public interests such as the protection of public health, the environment and consumer rights. Arts 34 and 35 are directly effective and any state measure that breaches them could give rise to state liability and the payment of damages, provided that the conditions set out in C-46/93 Brasserie de Pecheur and C-48-93 Factortame III are fulfilled.
Just as with Art 30, Art 34 bans not just quantitative restrictions themselves, but all measures having equivalent effect (often abbreviated to MEQR or MHEE), and the Article also applies to goods of non-EU origin which are now in free circulation within the EU, having fulfilled the CCT requirements.
The definition of ‘goods’ for the purposes of Arts 34-36 is similar to that for Art 30 and even includes generated electricity. An exception is coins, banknotes or bearer cheques, because they come under the rules on transfer of capital (Art 63 TFEU) but old gold coins that were no longer in circulation and were collectors’ items did count as ‘goods’.

Do you need a similar assignment done for you from scratch? We have qualified writers to help you. We assure you an A+ quality paper that is free from plagiarism. Order now for an Amazing Discount!
Use Discount Code "Newclient" for a 15% Discount!

NB: We do not resell papers. Upon ordering, we do an original paper exclusively for you.