The
post yesterday included another freedom related to European Union law: free
movement of goods. This is of particular importance for the United Kingdom in
light of Brexit (and therefore, Northern Ireland).
Free
movement of goods would not work if there were barriers. Therefore, European
Union law prohibits financial and non-financial barriers to free movement of
goods. In brief:
Financial barriers
The applicable law
arts 28-30 TFEU refers to the prohibition of customs duties and charges having
equivalent effect (CEEs).
Art 110 TFEU
refers to the prohibition of discriminatory internal taxation.
Relevant case law
(European Court of Justice).
Non-financial barriers
The applicable law
arts 34-36 TFEU.
Relevant case law
(European Court of Justice).
Financial barriers
Customs duties and CEEs (arts 28-30 TFEU)
Art 28 TFEU: requires the creation of a customs union
between member states.
It means that (i)
internally (free trade area)there is a prohibition of customs duties and charges
having equivalent effect (CEEs) between member states on imports and exports;
and (ii) externally, the adoption of a common customs tariff (CCT) on goods
imported from third countries. Art 28
TFEU requires removal of existing customs duties and CEEs.
What is a custom
duty/ CEE? A charge (payment of money) imposed/collected on goods because they cross
a border.
Art 29 TFEU: goods
in “free circulation” are goods from third countries which have paid CCT on
entry to the European Union. Once inside the European Union, having paid the CCT,
they must be treated as goods originating from within the European Union.
Art 30 TFEU: prohibits
imposition of new customs duties and CEEs on imports and exports.
Finally, a CEE:
the definition can be found in Commission
v Italy (Statistical Levy Case) 24/68 refers to “any pecuniary charge.” The
purpose of duty/ charge is irrelevant. The effect
is what counts.
Once customs duty
or CEE are found within the scope of Art 30 TFEU the customs duty is unlawfull.
Some charges may be permissible. For example, charges made for provision of
genuine commercial service to importer Warehouse
Case 132/82; charges levied on importer/exporter for inspection which mandatory
under European Union or international law Commission
v Germany Case 18/ 87.
The post tomorrow
will introduce discriminatory internal taxation to complete the picture about
financial barriers. On Thursday and Friday, the posts will highlight the key
elements referred to non-financial barriers.
Jorge
Emilio Núñez
17th July 2018
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