Free Movement Of Goods In The Eu Essays On The Great

Free movement of goods

The free movement of goods, the first of the four fundamental freedoms of the internal market, is secured through the elimination of customs duties and quantitative restrictions, and the prohibition of measures having an equivalent effect. The principles of mutual recognition, elimination of physical and technical barriers, and promotion of standardisation were added in order to continue the completion of the internal market. The adoption of the New Legislative Framework (NLF) in 2008 significantly strengthened product marketing rules, the free movement of goods, the EU’s market surveillance system and the CE mark. The mutual recognition principle was also consolidated, and applies to a wide range of products not covered by EU harmonisation.

Legal basis

Articles 26 and 28-37 of the Treaty on the Functioning of the European Union (TFEU).

Objectives

The right to free movement of goods originating in Member States, and of goods from third countries which are in free circulation in the Member States, is one of the fundamental principles of the Treaty (Article 28 TFEU). Originally, free movement of goods was seen as part of a customs union between the Member States, involving the abolition of customs duties, quantitative restrictions on trade and equivalent measures, and the establishment of a common external tariff for the Community. Later, the emphasis was laid on eliminating all remaining obstacles to free movement of goods with a view to creating the internal market — an area without internal borders, in which goods could move as freely as on a national market.

Achievements

The elimination of customs duties and quantitative restrictions (quotas) between Member States was accomplished by 1 July 1968, i.e. one and a half years early. This deadline was not met in the case of the supplementary objectives — the prohibition of measures having an equivalent effect, and the harmonisation of relevant national laws. These objectives became central in the ongoing effort to achieve free movement of goods.

a.Prohibition of charges having an effect equivalent to that of customs duties: Articles 28(1) and 30 TFEU

Since there is no definition of the aforementioned concept in the Treaty, the case-law has had to provide one. The Court of Justice of the European Union considers that any charge, whatever it is called or however it is applied, ‘which, if imposed upon a product imported from a Member State to the exclusion of a similar domestic product has, by altering its price, the same effect upon the free movement of products as a customs duty’ may be regarded as a charge having equivalent effect, regardless of its nature or form (Cases 2/62 and 3/62 of 14 December 1962, and Case 232/78 of 25 September 1979).

b.Prohibition of measures having an effect equivalent to quantitative restrictions: Articles 34 and 35 TFEU

In its Dassonville judgment, the Court of Justice took the view that 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 (Cases 8/74 of 11 July 1974 and points 63 to 67 of Case C-320/03 of 15 November 2005). The Court’s reasoning was developed further in the Cassis de Dijon (Case 120/78 of 20 February 1979) jurisprudence, which laid down the principle that any product legally manufactured and marketed in a Member State in accordance with its fair and traditional rules, and with the manufacturing processes of that country, must be allowed onto the market of any other Member State. This was the basic reasoning underlying the debate on defining the principle of mutual recognition, operating in the absence of harmonisation. As a consequence, even in the absence of European harmonisation measures (secondary EU legislation), Member States are obliged to allow goods that are legally produced and marketed in other Member States to circulate and to be placed on their markets.

Importantly, the field of application of Article 34 TFEU is limited by the Keck jurisprudence, which states that certain selling arrangements fall outside the scope of that article, provided that they are non-discriminatory (i.e. they apply to all relevant traders operating within the national territory, and affect in the same manner, in law and in fact, the marketing of domestic products and products from other Member States) (Joined Cases C-267/91 and C-268/91 of 24 November 1993).

c.Exceptions to the prohibition of measures having an effect equivalent to that of quantitative restrictions

Article 36 TFEU allows Member States to take measures having an effect equivalent to quantitative restrictions when these are justified by general, non-economic considerations (e.g. public morality, public policy or public security). Such exceptions to the general principle must be interpreted strictly, and national measures cannot constitute a means of arbitrary discrimination or disguised restriction on trade between Member States. Exceptions are no longer justified if Union legislation that does not allow them has come into force in the same area. Finally, the measures must have a direct effect on the public interest to be protected, and must not go beyond the necessary level (principle of proportionality).

Furthermore, the Court of Justice has recognised in its jurisprudence (Cassis de Dijon) that Member States may make exceptions to the prohibition of measures having an equivalent effect on the basis of mandatory requirements (relating, among other things, to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer). Member States have to notify national exemption measures to the Commission. Procedures for the exchange of information and a monitoring mechanism were introduced in order to facilitate supervision of such national exemption measures (as provided for in Articles 114 and 117 TFEU, Decision 3052/95/EC of the European Parliament and of the Council of 13 December 1995 and Council Regulation (EC) No 2679/98 of 7 December 1998). This was further formalised in Regulation (EC) No 764/2008 on mutual recognition, which was adopted in 2008 as part of the so-called New Legislative Framework (NLF).

d.Harmonisation of national legislation

Since the late 1970s, considerable efforts have been made to harmonise national legislation. The adoption of harmonisation laws has made it possible to remove obstacles created by national provisions by making them inapplicable and to establish common rules aimed at guaranteeing both free circulation of goods and products and respect for other EC Treaty objectives, such as protection of the environment and of consumers, competition, etc.

Harmonisation has been further facilitated by the introduction of the qualified majority rule, required for most directives relating to the completion of the single market (Article 95 of the EC Treaty, as modified by the Maastricht Treaty), and by the adoption of a new approach, proposed in a Commission White Paper of June 1985, aimed at avoiding onerous and detailed harmonisation. In the new approach based on the Council resolution of 7 May 1985 (confirmed in the Council resolution of 21 December 1989 and Council Decision 93/465/EEC), the guiding principle is the mutual recognition of national rules. Harmonisation must be restricted to essential requirements, and is justified when national rules cannot be considered equivalent and create restrictions. Directives adopted under this new approach have the dual purpose of ensuring free movement of goods through the technical harmonisation of entire sectors, and guaranteeing a high level of protection of the public interest objectives referred to in Article 114(3) TFEU (e.g. toys, building materials, machines, gas appliances and telecommunications terminal equipment).

e.Completion of the internal market

The creation of the single market necessitated the elimination of all remaining obstacles to free movement of goods. The Commission White Paper of June 1985 set out the physical and technical obstacles to be removed, and the measures to be taken by the Community to this end. Most of these measures have now been adopted. However, the single market still requires substantial reforms if it is to meet the challenges of technological progress — the key factor in improving the EU’s competitiveness on global markets.

Role of the European Parliament

Parliament supported the completion of the internal market and has always given particular support to the ‘new approach’ in connection with the free movement of goods, clarifying its definition in a 1987 report. It has also made a strong legislative contribution to the harmonisation directives. Parliament made a significant contribution to the NLF package adopted in 2008. The key issues for Parliament, in its negotiations with the Council, were to secure agreement that all economic operators involved should increasingly be responsible for assuring the compliance and safety of the products they put on the market, and further to strengthen the CE mark by making consumers more aware of it. Parliament continues to work in this area, with the Alignment Package consisting of nine directives covering different products, including lifts, pyrotechnic articles and explosives.

In its resolution of 8 March 2011[1] Parliament called on the Commission to establish a single market surveillance system for all products (harmonised and non-harmonised), based on one legislative act covering both the General Product Safety Directive and Regulation (EC) No 765/2008 on market surveillance, in order to attain a high level of product safety and market surveillance, and to clarify the legal basis. On 13 February 2013, at Parliament’s request, the Commission presented the Product Safety and Market Surveillance Package, which aims to improve market surveillance systems in the Member States. The package consists of new enforcement rules for the internal market for goods, which will enable national market surveillance authorities to enforce the law and to provide better and more extensive means of consumer protection. In particular, authorities will be better able to track down unsafe products, while, at the same time, the rules on consumer product safety will be simplified and merged into a single piece of legislation.

The three most important parts of the package are:

  1. a proposal for a new regulation on consumer product safety (CPSR);
  2. a proposal for a single regulation on market surveillance for products, unifying and simplifying existing fragmented legislation;
  3. a multiannual plan for market surveillance of 20 individual actions that the Commission will take over the next three years.

Along with the principle of mutual recognition, standardisation plays a central role in the proper functioning of the internal market. Harmonised European standards help to ensure free movement of goods within the internal market and allow enterprises in the EU to become more competitive. These standards help to protect the health and safety of European consumers and also contribute to environmental protection. Aiming to enhance the content of the standardisation reform, Parliament adopted a resolution on 21 October 2010[2] in which it called for the standardisation system’s many successful elements to be maintained and improved, and for the right balance to be struck between the national, European and international dimensions. Parliament further argued that the addition of the principle of ‘appropriate representation’ is a vital element, given that it is of the utmost importance to incorporate all stakeholder positions in an appropriate manner whenever the public interest is concerned, especially in the development of standards intended to support EU legislation and policies.

On 25 October 2012 Parliament and the Council adopted Regulation (EU) No 1025/2012 on European standardisation, modernising and improving the mechanism for setting European standards.

The seventh legislature concluded the legislative review of nine directives in the alignment package, in areas such as low-voltage equipment, electromagnetic compatibility, non-automatic weighing instruments, measuring instruments, explosives for civil uses, equipment and protective systems intended for potentially explosive atmospheres, pyrotechnic articles and simple pressure vessels, as well as directives on pressure equipment and radio equipment. Parliament also concluded legislative work on: the regulation laying down harmonised conditions for the marketing of construction products; the labelling and marking of the fibre composition of textile products; the safety and environmental performance of two- and three-wheeled vehicles and quadricycles; and the directive on recreational craft and personal watercraft (improving safety through better categorisation of watercraft)[3]. The eighth legislature has continued these efforts through its work on regulations on cableway installations, appliances which burn gaseous fuels, medical devices and personal protective equipment. Parliament has successfully completed work on the e-Call regulation[4] and the decision on interoperability solutions for European public administrations, businesses and citizens (ISA2)[5]. In the framework of the Circular Economy Package, Parliament is currently preparing legislation on the making available on the Single Market of CE marked fertilising products[6].

Parliament supports the need for stronger cooperation between EU and national authorities in order to improve the quality of EU legislation and identify legislation in need of simplification or codification, in accordance with the goal of putting more effort into better regulation, prompt transposition and correct implementation. Parliament also calls on the other institutions to support co-regulation and voluntary agreements whenever possible, in accordance with the same principle of better law-making.

Recent research indicates that the ongoing Brexit process will generate significant uncertainties and negative impacts on the Single Market and the rights of European citizens[7]. Parliament will need to play a significant role in ascertaining that democratic legitimacy and respect for citizens’ rights are present in this process[8].

Mariusz Maciejewski

11/2017

Transcript of EU law - Free movement of goods problem question

This Prezi has been designed to give you guidance on how to answer a typical problem question on the free movement of goods. You should note however, that this is simply one approach of which many are valid.
EU law - answering problem questions on the free movement of goods
Introduction
Final Conclusion
Introductions in problem style questions should be kept to a minimum. The focus should be on addressing the issues raised and the examiner will not be looking to give credit for an over elaborate introduction. However, to simply launch into the issues without some reference to context would be wrong.
Identify the issues...
The Question
Bubbles is a UK manufacturer of shampoo selling throughout several Members States of the European Union. At present, the company does not sell their goods in Poland but has recently decided to concentrate on this untapped market. It has encountered a number of difficulties in doing so.

Firstly, Poland places a limit on the quantity of bathing products which may be imported. Also, Polish legislation for the protection of health requires all shampoos sold in Poland to have a safety cap. Bubbles does not currently use safety caps on their products and are unhappy with the Polish requirement which is not imposed by other Member States.

Furthermore, Bubbles has been informed that when its goods enter Poland, it will have to pay a 2.5 Zloty (about 50p) fee per bottle. Bubbles has been told that the charge is levied for the compilation of statistics.

Bubbles has been informed that because its products use a stick-on label, they will be taxed at a higher rate than those products that print directly onto the bottle. Although the company are aware of a recent report suggesting that stick-on labels have an adverse impact on the environment, it thinks it is a little suspect that none of Poland’s bathing product producers use stick-on labels.

Finally, Bubbles is dismayed to hear that there are restrictions on television advertising of all hair care products in Poland, following a recent incident where a child mistook shampoo for a drinking bottle and suffered serious illness as a consequence.

Advise Bubbles Ltd as to the impact of any relevant EU law.
The question we'll use is a typical undergraduate problem question on this area. This is a question that I drafted for an examination some time ago and incorporates many of the issues that you would expect to be addressed in such a question.
Thus, in a question such as this, attention should be drawn to the importance of the free movement of goods to the effective and successful operation of the internal market as one of the four fundamental freedoms. Reference should be made to Article 26 TFEU.
It is worth noting from the outset that a question such as this is very likely to have more than one issue concerning the free movement of goods.
...and then address those issues in turn
Bubbles
Quantity limit
Safety cap
Fee
Tax rate
Advertising restrictions
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Conclusion on this issue
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Distinctly or indistinctly applicable measure?


Consider Dir 70/50 - noting that this is was a transitional measure and therefore is no longer formally applicable (see Articles 2 and 3).
Applies equally to domestic and imported products - thus, indistinctly applicable.

Just like Walter Rau Lebensmittelwerke v de Smedt PvbA (Case 261/81) [1982] ECR 3961 – Belgian requirement that all margarine for sale should be in cube shaped form or cube shaped packaging. Problem was that importers would have to adapt their packaging processes to comply with a requirement not imposed upon them at home.
Now, consider whether there is any potential justification. As this is an indistinctly applicable MEQR, it can potentially be justified under Article 36 TFEU or Cassis de Dijon.

The obvious argument here is public health. As this falls within both, either may be used.

However, in either case, the principle of mutual recognition would need to be explained and applied -
where goods have been lawfully produced and marketed in one Member State, there is no reason why they should not be introduced into another Member State. Here, we know that it is only Poland that has the requirement.
Conclusion on this issue
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Charge for service rendered? State law and apply to facts
Then, question whether an argument can be sustained that the charge is for a service.

However, a charge for services rendered will fall outside the Article 30 TFEU prohibition only if: the service provided is of direct benefit to the importer and the charge is proportionate to the service provided.

Apply - here, as in Statistical Levy, the argument is likely to fail. Any benefit to the importer is too vague and uncertain. It should be noted that the argument rarely succeeds in practice.
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Directly or indirectly discriminatory – explain and apply to facts with reference to case law.
Indirectly discriminatory tax (Taxation which appears neutral, but has the effect of discriminating against imported products(see Humblot)), can be objectively justified.

Commission v Greece (Case C-132/88) – Court considered an environmental justification for a car tax system providing for differential rates according to power rating. Greece imposed a tax on new and second hand cars wherever they were produced and once over a 1.8 engine, the tax rose steeply. Greece didn’t produce cars above 1.6. Held it would escape Article 110 TFEU notwithstanding that all higher taxed cars were imported so long as the taxation didn’t have the effect of discouraging Greeks from purchasing foreign cars. On the facts the tax was motivated by other considerations and there was no discernable protective effect.

Apply - here we have an indirectly discriminatory tax which, it could be argued, could be objectively justified on environmental grounds.
Conclusion on this issue
Identify potential barrier to trade with reference to and application of relevant Treaty Articles and case law.
Distinctly or indistinctly applicable measure?

Consider Dir 70/50 - noting that this was a transitional measure and therefore is no longer formally applicable (see Articles 2 and 3).
Now, consider whether there is any potential justification.

Interestingly, because this measure concerns the way in which goods are sold rather than product characteristics, it would appear to be a 'selling arrangement'.

Thus, apply Keck conditions.
Thus, if the measure is to be justified, it must be done so with consideration and application of Article 36 TFEU and Cassis (remember - this is an indistinctly applicable MEQR).

Note, the question does not require you to repeat previously explained material. Thus, deal quickly with the issues - relevant ground (public health), rebuts presumption of mutual recognition, proportionality etc (see earlier in relation to the safety cap).
Cassis - Principle of mutual recognition and rule of reason – Apply
Article 36 TFEU - Apply
Proportionate response? State law and apply to facts
Conclusion on this issue
You've now dealt with all of the issues raised by the 'Bubbles' scenario.
Feeling good?
Excellent...however, we've not quite finished yet
Excellent, but we still need to pull the piece together
#EUlawrocks
Conclusion on this issue
This Prezi was created by Matthew J. Homewood,
Principal Lecturer in European Union law at
Nottingham Law School.

Feedback is very welcome.

@mjhomewood
matthew.homewood@ntu.ac.uk
Quantitative restrictions can be defined as‘.... measures which amount to a total or partial restraint of, according to the circumstances, imports, exports, or goods in transit’ - Geddo v Ente Nazionale Risi (Case 2/73)

Apply - here we have "a limit on the quantity of bathing products which may be imported". As such, it is a partial restraint of imports. It is a quantitative restriction.
Article 34 TFEU - Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Thus, this non-tariff barrier to trade is a breach of Article 34 TFEU.
Procureur du Roi v Dassonville (Case 8/74) [1974] ECR 837 – “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”.

Apply - The requirement to have a safety cap will take time to comply with, will increase production costs and reduce competitiveness or profit margins. As a result, the measure is capable of hindering trade as these may deter Bubbles from entering the market.
Article 34 TFEU- Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Thus, this non-tariff barrier to trade on the form of a measure having equivalent effect to a quantitative restriction (MEQR) is a breach of Article 34 TFEU.
Now, the principle is rebuttable.by the mandatory requirements in Cassis or the list of justifications under Article 36 TFEU.

You then need to consider whether there is a real risk to public health and whether this is a proportionate response (using relevant authorities such as San Jose Scale and Walter Rau).


Finally, (and this very much links to whether a real risk exists and indeed, whether the response is proportionate) consider whether the measure merely amounts to arbitrary discrimination or a disguised restriction on trade. Again, use relevant case law (Poultry Meat for example).
Commission v Italy (Case 24/68) (Re Statistical Levy)
- “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 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.”

Apply - here we have a pecuniary charge (the 2.5 Zloty fee) which has been levied for the compilation of statistics. As such, it is not a clear duty because goods have crossed a frontier, but it does meet the definition of a charge having equivalent effect (CEE).
Article 30 TFEU - Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States.

Thus, this tariff barrier to trade is a breach of Article 30 TFEU.
Here we are dealing with a matter of internal taxation. A definition of a genuine tax was given by the Court of Justice in Commission v France (Reprographic Machines) (Case 90/79) as a measure relating to a general system of internal dues applied systematically to categories of products in accordance with objective criteria irrespective of the origin of the products.
Article 110 (1) 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.

Article 110 (2) TFEU
Furthermore, no Member State shall impose on the products of other Member States any internal taxation of such nature as to afford indirect protection to other products.

Here, you need to consider which paragraph the measure falls into.
In John Walker v Ministeriet for Skatter (Case 243/84), the issue was whether Whisky and fruit liqueur wine were similar. It is obvious that they are both alcoholic drinks but the Court decided they were not similar because they had different characteristics. The process used to make them was different and they had significant differences in terms of alcohol content. Held that the term ‘similar products’ should be interpreted widely to encompass similar characteristics and comparable use.

Apply - On the facts there is nothing to suggest that the domestic and imported products are different in anyway and therefore it would be acceptable to assume that they have similar characteristics and comparable use.

As such, the tax is a breach of Article 110(1) TFEU.
Procureur du Roi v Dassonville (Case 8/74) [1974] ECR 837 – “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”.

Apply - Advertising is a key component of market access. If this is restricted, Bubbles may not be willing to enter the market or in so doing, would be at a significant disadvantage to domestic producers.
Article 34 TFEU- Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Thus, this non-tariff barrier to trade in the form of a measure having equivalent effect to a quantitative restriction (MEQR) is a breach of Article 34 TFEU.
Applies equally to domestic and imported products. Thus, indistinctly applicable.

Just like Walter Rau Lebensmittelwerke v de Smedt PvbA (Case 261/81) [1982] ECR 3961 – Belgian requirement that all margarine for sale should be in cube shaped form or cube shaped packaging. Problem was that importers would have to adapt their packaging processes to comply with a requirement not imposed upon them at home.
Criminal Proceedings against Keck and Mithouard (Cases C-267 & 268/91)– Concerned a French law stating that goods could not be re-sold at a loss. This was an issue because it would affect the overall volume of sales and the sales of products from other Member States. However, the court said that certain selling arrangements do not fall within the Dassonville formula –


“...provided that those provisions apply to all affected traders operating within the national territory and provided they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States…”.
However, their are authorities recognising that advertising restrictions do not apply equally in law and in fact - Konsumentombudsmannen (KO) v De Agostini (Svenska) Forlag AB (Cases C-34-6/95) - Related to a ban on TV advertising at children under 12. Court found that where a producer is unable to advertise its product it may be prevented from accessing a market. The same restrictions may have less impact on domestic products as they will already be known. Thus, outside of Keck due to the discriminatory effect.

Apply - the restrictions on advertising would have an adverse impact upon Bubbles in comparison to domestic producers. As such, the measure would not satisfy the Keck conditions.
Now, you've already concluded each issue as you've dealt with it, so what's the point of a final conclusion?
This is your opportunity to conclude your answer by pulling together the individual issue conclusions. In so doing, you neatly finish the piece and provide the examiner with a clear and concise summary of where your legal arguments have taken you.
...and that's all there is to it!
Consideration might at this point be given to whether the measure could be justified.

The only means by which quantitative restrictions can potentially be justified is under Article 36 TFEU.

However, given that there is nothing on the facts to suggest a potential justification, this should be dismissed swiftly as the available time is needed to concentrate on issues actually raised by the question.
.
Be confident in exercising your academic judgment in this regard. The very best answers don't waste valuable time or words on non-issues.

Full transcript

0 thoughts on “Free Movement Of Goods In The Eu Essays On The Great”

    -->

Leave a Comment

Your email address will not be published. Required fields are marked *