#2517 - Goods Revision - European Law

EU LAW Goods Fiscal Measures: Arts 28, 30 and 110 A. Introduction Articles 30 (at frontier) and 110 (internally) are complementary but mutually exclusive: Lutticke v Hauptzollamt Saarlouis * * * * Art 30 applies to imports only: Commission v Luxembourg and Belgium Article 110: applies to imported + domestic products: Commission v France Article 30: Absolute prohibition on CD and CEE; Article 110 allows MS to tax goods if not discriminatory/protective in effect. Art 30+110 "remove all restrictions of a fiscal nature capable of hindering the free movement of goods within the Common Market": Fink-Frucht B. Article 30 CD and CEE 1. Customs duties Def: Direct Charge on importer: Van Gend en Loos 2. Charges Having Equivalent Effect (CEEs) Def: "any pecuniary charge, however tiny, imposed unilaterally on import.." Comm v Italy * * A statistical levy + no deminis: Commission v Italy Name doesn't matter: Health inspection charge = CEE: REWE-Zentralfinanz NB: If charge is for service, that's fine, but compulsory storing 'service' before crossing customs not actually a service: Comm v Belgium: * Charge levied within country's regional frontier: Legros Lancry (confirms) NB: Scotland/England is a wholly internal situation and Art 30 applies. 3. Remedies 3.1 Direct Effect (Van Gend en Loos) 3.2 Repayment of unlawful charges San Giorgio: Can get money you paid due to unlawful charge back unless you would be unjustly enriched: Comateb [1997]: (1) If trader burdened with unlawful charge and they levy on consumer, consumer can get money either from trader or state. (2) Trader will also be able to go via Francovich in damages for loss of sales. C. Article 110: Internal Taxation Article 110(1): can tax but must be dissimilar products if different taxes Article 110(2): Concerns products not classed as similar, butin competition: beer /wine Together: "Ensure the complete neutrality of internal taxation" Co-frutta 1987 2. Freedom for Member States to Tax Johnnie Walker: In the absence of Union legislation, MS free to tax non-discriminatorily, objective difference, and not based on origin. The Bergandi (tax on game machines) and Chemial Farmaceutici SpA v DAF SpA nice examples of this freedom. 3. Goods which are similar: Article 110(1 3.1 Definition (a) The test Article 110(1) prohibits host MS from imposing higher tax on goods imported into the Member State than on similar domestic goods. "Similar" " ... exists when products are normally considered as coming within the same fiscal, customs or statistical classification." (Fink-Frucht ) shift to economic test "...which at the same stage of production or marketing, have similar characteristics and meet the same needs from the point of view of consumers" (REWE v HZA Landau) (b) Factors taken into account by the Court "Origin, manufacturing, needs they meet, Organoleptic properties" Comm v Denmark "Dark and white tobacco are similar" Commission v. France (cigarette) "Fruit wine and whisky not similar" Johnnie Walker "Bananas dissimilar to other soft fruit" Commission v Italy