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 If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.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