Internal Market

Grzelczyk

"Union citizenship is destined to be the fundamental status of nationals of the Member States"

Article 207(1) TFEU

"based on uniform principles"

Opinion 1/75

- EU exclusive competence as a necessary implication of EU internal market integration - The relationship between external exclusive competence and internal shared competence

Article 50 TEU

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. 2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period. 4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union. 5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.

Article 2 TFEU

1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts."

Bauhuis

A charge for an inspection/formality required by EU Law is lawful if proportionate to the costs of carrying out the inspection

Diamantarbeiders

A charge is banned regardless of its purpose (so even if it isn't for protectionist purposes)

Tobacco advertising case

A directive to ban most forms of tobacco advertising or sponsorship in EU (in particular sporting events) - near total Art 114 TFEU does not provude a general power to regulate the internal market

Criticism of Keck in Leclerc-Siplec

AG Jacobs's view: One cannot assume that selling arrangements do not create obstacles to inter-state trade Keck reintroduced discrimination in the law. For AG Jacobs, discrimination is irrelevant to the matter Keck leads to a fragmentation of the market as traders must adapt to local regulation of selling arrangements in different Member States

Bettray/Trojani

Activity must have an economic value "forming part of the normal labour/services market"

Larsden

Art 110 TFEU applies to exports

ENISA

Art 114 TFEU can be used for non-harmonising procedural measures when in the broad context of harmonisation

Swedish Match

Art 114 TFEU may be used to impose a ban on a product when it is allowed to be used in only some States Motives are irrelevant as long as it falls within parameters of Art 114 TFEU

Directive 70/50

Art 2 = this directive covers measures other than those applicable equally to domestic or imported products which hinder imports which could otherwise take place including measures which make importation more difficult or costly than the domestic production. Art 3 = the directive also covers measures governing the marketing of products which deal in particular with shape, size, weight, composition, presentation, identification or putting up and which are equally applicable to domestic and imported products where the restrictive effect of such measures on the free movement of goods exceeds the effects intrinsic to trade rules.

Article 115 TFEU

Article 114 TFEU cannot be used in tax

The Common Commercial Policy

Article 207 TFEU - internal market but for persons The scope of application of the single market - Free movement of goods (Opinion 1/94) - Freedom to provide services (Opinion 1/2008) - Freedom of establishment - Free movement of workers - Free movement of capital

CoFrutta

Bananas and typical Italian table fruits are not similar Even when products are not similar, they may be caught out by Art 110(2) if they are competing

Article 3(1)(e) TFEU

CCP is a field of exclusive competence

Customs Union

Common Commercial Policy, boundary only exists to get in

Commission v UK (beer and wine(No1))

Competition ma be partial, indirect or potential

Border obstacles

Custom Duties (Tariff/fiscal barrier) Quotas and other quantitative restrictions (Non-tariff barriers)

Buy Irish

Dassonville applies to state-sponsored advertising campaigns No need to show actual impact, only potential

AGM-COS.MET

Dassonville formula applies to statements by a public official in his personal capacity in tv/newspaper interviews

Withdrawing from the European Community Act

Doesn't actually change EU obligations

Participation in the WTO

EU is signatory to agreements which establish common rules for participating customs territories Aim of progressive abolition of tariffs and setting rules regarding non-tariff barriers

Opinion 1/78

EU should respond to global trade developments as a unified entity

Condition of Arts 45, 49 and 56 TFEU

Economic activity

Criticism's of distinction between selling/product rules

Excessively formalistic Artificiality of separating marketing and product design (eg: luxury/'lifestyle' products) Inapplicability of Art 34 especially problematic for 'dynamic' (as opposed to 'static') selling arrangements

Steymann/Trojani

Form of remuneration is not essential

Four Freedoms

Free movement of good + freedom to provide services + free movement of persons + free movement of capital

Article 28 TFEU

Free movement of goods

Common Market

Free movement of products + free movement of factors of production

Art 45 TFEU

Free movement of workers

Bergandi

Freedom of MS to tax products how they choose

Art 49 TFEU

Freedom of establishment

Art 56 TFEU

Freedom to provide services

Commission v Denmark

Grape based wines and fruit wines are similar

Blesgen/Quietlynn

Held single burden rules fall outside the scope of Article 34

discrimination model for in-state barriers

Host state can impose its rules on imported goods as long as the rules no do discriminate, indirectly or directly, against imported good used by WTO Appropriate for eradicating protectionist measures Does not address dual-burden problem

Donner

How a charge is labelled is immaterial charges for compulsory operations imposed by public authorities in relation to importation/exportation are charges having equivalent effect

Ahokainen and Leppik

Import licenses are direct discrimination

Leclerc v Au Blé Vert

Internal measures which apply to both domestic and imported goods but using different criteria are a type of distinctly applicable measure

Buy Irish/Irish souvenirs

Internal measures which target/apply exclusively to imported goods are distinctly applicable measures

In-state obstacles

Internal taxation (tariff/fiscal barrier) regulatory requirements (non-tariff)

Keck

It is established by the case-law beginning with "Cassis de Dijon" [...] that [...] obstacles to free movement of goods which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods (such as those relating to designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article [34]. rules relating to selling arrangements lie outside scope of Art 34 TFEU (National provisions regulating selling arrangements are outside the scope of Article 34...) "so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States."

Cassis de Dijon

Legislation made it impossible to import Cassis de Dijon (liquor) to Germany from France as it wasn't 25% (so couldn't be classed as liquor) 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... There is therefore 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

Conditions in Article 50 TEU

Miller judgment - conditions are a matter of UK public law Only official requirement is the notification to the European Council

EU FTA's

More than 30 covering more than 50 countries

Lawrie-Blum/Steymann

Motive or purpose is irrelevant for workers

Art 23 TFEU

Mutual consular protection

EFTA Court

National Courts can ask for preliminary ruling

Statistical Levy

No de minimis principle to the concept of a charge having an equivalent effect to a customs duty A service must be genuine for the imported/exporter

Kempf/Raulin

No lower limit of worker as long as "real and genuine"

Art 110 (2) TFEU

No taxation of imported good affording indirect protection to domestic goods

European Economic Area

Norway, Iceland, Liechtenstein The scope of access to the single market - almost full access - Not participating in other EU policies (CAP, Justice and Home Affairs etc) - EEA countries are not bound by the Customs Union and have their own external trade policies - Rules of Origin determining when products are deemed to be EEA products No direct effect - need to transpose into domestic law EFTA Council + Joint Committee

Article 114 TFEU

Possible way of derogating from harmonising measures

Home Country Control

Presumption that host Member State cannot impose its rules on imported products But presumption is rebuttable through mandatory requirements doctrine (avoids a 'race to the bottom')

Article 6 EEA

Principle of homogeneity

Article 35 TFEU

Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States.

Article 34 TFEU

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.

Hunermund

Restriction in volume of trading cannot in itself be sufficient to trigger application of Art 34 Need to distinguish restrictions on inter-state trade per se and restrictions on commercial freedom generally Art 34 should remain focused on market integration - it is not a tool to maximise the commercial freedom of traders generally.

Dynamic Medien

Restriction on sales to young persons of image storage media not submitted for approval by German authorities as suitable for public are a product rule

Art 24 + 227-228 TFEU

Right to petition the EP and apply to the ombudsman

Denkavit

Sanitary inspections on border are distinctly applicable measures

EU-Switzerland Trade Relations

Series of bilateral agreements limited access to services market only

Free Trade Area

Set own national commercial Policies

ordo-liberal model for in-state barriers

State can establish economic order to maximise market principles and genuine competition Free movement rules all state measures must be justified ideologically charged against State intervention

SPUC

Termination of pregnancy is practised in many MS, whether or not you regard it as moral it is still a lawful activity for remuneration and is a service in line with Article 56

Art 21(1) TFEU

The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, in accordance with the relevant provisions of the Treaties.

Gaston Schul

The concept of a common market as defined by the court in a consistent line of decisions involves the elimination of all obstacles to intra-community trade in order to merge the national markets into a single market bringing about conditions as close as possible to those of a genuine internal market.

Article 26(2) TFEU

The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties.

Article 36 TFEU

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 or plants; etc....

Johnnie Walker

Whisky and fruit liqueurs are not similar

Humblot

a tax by a MS must be without discrimination as to the origin

Art Treasures

absolute ban on customs duties

Private obstacles to the market

anti-competition measures

Carbonati Apuani

ban on charges includes internal/regional borders

Familiapress

ban on prize competitions are a product rule

Warehousing charges

charge for a service provided to the importer/exporter is not a charge having equivalent effect

Decision 1/95

created the customs union

EU-Turkey Relations

customs deal, no access to Single market Based on Ankara Association Agreement

De Agostini

determination of whether a selling arrangement is discriminatory is normally left to the national court

Gourmet International Products

determination of whether a selling arrangement is discriminatory may be made by the ECJ if it is considered obvious

Distinctly applicable measures

discriminatory in a formal sense/direct e.g. measures linked to importation such as border measures

Dual regulatory burden

goods imported from one state to another are subject to regulations from both

Cinetheque/Torfaen

held that single burden rules can fall within the scope of Article 34

State obstacles to the market

hindering free movement law

Mickelsson and Roos

in principle selling arrangement unless it virtually deprives the product of any meaningful use

Motorcycle Trailers

introduced the substantial hindrance to market access test: "Any other measure which hinders access of products originating in other Member States to the market of a Member State is also covered by that concept" refers to Dassonville and then Cassis for product rules Refers to Keck for selling arrangements

Van de Haar/Bluhme

no de minimis principle

Art 110 (1) TFEU

no taxation of imported goods in excess of what is imposed on similar domestic products

Art 18 TFEU

non-discrimination on grounds of nationality

Dassonville formula

oLegislation was that if a product had an indication of geographical origin and the product was from outside Belgium, the person selling the goods had to have a certificate from the country of origin certifying that the goods did come from that country. Trader had imported the Scotch from France (who had himself imported from Scotland) who didn't have a certificate. "All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-[Union] trade are to be considered as measures having an effect equivalent to a quantitative restriction."

Competitive model for in-state barriers

oriented towards removing obstacles which result from multi-state models ] allocates regulatory power to home state (Host state must justify any measures) deals with dual-burden promotes a degree of regulatory competition presupposes mutual trust

R (Miller) v Secretary of State for Exiting the European Union

para. 17: "...it is the giving of notice which triggers the effects under article 50(2)and (3) leading to the exit of a Member State from [the EU]". para. 11: "Once a notice is given, it will inevitably result in the complete withdrawal of the United Kingdom from membership of the European Union and from the relevant Treaties at the end of the two year period,... or the earlier making of a withdrawal agreement... The effect of giving notice under Article 50 on relevant rights is direct"

Art 22 TFEU

participation (as elector and/or candidate) in municipal and European elections in state of residence

Alfa-Vita

requirement for bake-off product to go through final baking in a licensed bakery was a product rule

Morellato

requirement of "bake-off" products to be packaged were a product rule

Article 21 TFEU

right to move and reside freely "subject to the conditions laid down in the Treaty and by the measures adopted to give it effect"

Selling arrangements

rules relating to the marketing of a good (advertising, methods of promotion, where and when sold etc.)

centralised model

single, harmonised norm heavy demand on EU regulatory processes may stifle regulatory experimentation and innovation

Art 7(1)(a)

the economically active have: fairly secure right of residence (subject to public policy, public security and public health)

Art 7(1)(b) & (c)

the economically inactive have more precarious rights of residence

Art 114 TFEU can be used

to eliminate obstacles to free movement to remove distortions of competition

Single burden rules

usually rules relating to the marketing process