EU Law Free Movement of Goods - Coursework Example

of the of the of the EU Law – Free Movement of Goods QUESTION ONE Curofen is a UK based pharmaceutical company that exports its products to other Member States of the EU and other countries in the world. Part A Curofen’s cough syrup, Throatex, had been approved of by the UK authorities. However, Germany refused to allow its import, as this composition does not comply with its standards. In addition, Italy was willing to permit its import, only if it was repacked, in accordance with Italian packing specifications regarding such products. In United Kingdom v. European Parliament and Council1, the UK requested the European Commission to rescind Regulation No 2065/2003 EC for the reason that the regulation deals with granting sanctions to smoke flavourings for food instead of harmonisation and thus Regulation 2065/2003 EC had to be adopted under Article 308 EC and not under Article 95 EC. The Court did not accept this contention and decided that the variation in the national laws in respect of smoke flavourings was proving to be detrimental to their free movement. Therefore, Germany cannot object to the import of the cough mixture because it did not contain the ingredients required by its laws. The cough mixture had been accepted by the UK authorities. Therefore, Germany cannot proscribe the sale of Throatex, as it had been tested and approved of by the UK authorities. In EC Commission v. Denmark (Re Returnable Containers Case)2, the Danish government enacted legislation that required the packaging of beer and soft drinks to be sold in Denmark, to obtain the approval of the national environment protection agency. The ECJ held this requirement to be discriminatory and not justified under public policy requirements. It also ruled that Article 28 EC had been breached3. Hence, if the Italian authorities are insistent that the packaging should conform to its standards, it can communicate the same to Curofen. However, it cannot discontinue the imports. Part B Curopill is a contraceptive produced by Curofen. This product had been thoroughly tested by the UK authorities. All the same, the Swedish authorities refused its import, on the grounds that it contained harmful ingredients. In addition, Hungary, banned its import as it could enhance immoral behaviour amongst its teenagers. In the case of German Sausages, Germany had prohibited the marketing and sale of certain sausages in Germany, on the grounds that some of the additives in those sausages had been prohibited in Germany. The ECJ held that Germany had infringed Article 28, as there was no such proscription in the Member State where they had been manufactured4. Thus, Sweden cannot ban the import of Curopill, on the grounds that it contains harmful ingredients. In addition, in Commission of the European Communities v. Italian Republic, Italy had prohibited the import of caffeinated beverages. It claimed that these beverages contained higher levels of caffeine than the prescribed level; however, Italy failed to establish the maximum level of caffeine that would damage health. The ECJ held that Italian Republic had violated Articles 28 and 30 EC5. A similar judgment was delivered in Commission v. Germany6 and Commission v. Belgium7. Hungary has thought it fit to ban the use of Curopill on moral grounds. However, the mere availability of such pills, will not damage the morality of teenagers. Moreover, the EU aims to prevent any hindrance to the Common Market. Therefore, in the absence of specific proof that Curopill has a bad influence on the morals of teenagers; Hungary cannot ban its import. As per the case law a product if approved of in other Member States, should not be proscribed by any Member State, unless strict proof of harm to morality, on account of these pills can be established. Hence, Hungary cannot prevent the import of these pills. Part C Slimcure is a Curofen slimming pill that is sold in the shops and over the internet in the UK. The Austrian Pharmaceutical Association did not accord its approval to this medicine, and in the absence of such approval, this medicine cannot be sold in Austria. Moreover, the French authorities did not endorse this product, with the result that it cannot be advertised in France. Goods manufactured in accordance with the legal norms of one Member State can be marketed in another Member State. This is known as the doctrine of mutual recognition. Consequently, goods manufactured legally in one Member State cannot be prohibited in some other Member State of the EU. The European Court of Justice had established this principle in Cassis de Dijon case8. Therefore, Austria cannot rely on the decision of its Pharmaceutical Association, in order to prohibit the use of Slimcure in its country. Therefore, the doctrine of mutual recognition assures the free movement of goods and services throughout the EU. This doctrine operates even in the absence of common rules and harmonisation of national laws of the Member States. As such, no Member State can prohibit the import and sale of such goods. This doctrine of mutual recognition applies even if the technical, safety and quality requirements of the concerned Member States differ from each other. A Member State can prohibit the marketing of the goods that are legally manufactured in another Member State only on the grounds of harm to public health or safety, or environmental damage9. Therefore, if Austria had any reservations regarding the safety or morality of this medication, then it has to establish that its actions were justified because of the danger posed to public health and morality. It was held by the ECJ that a Member State cannot prohibit the import of goods that were legally manufactured in another Member States, on the basis of its national laws that are of a greater stringency than those of the latter10. In Campus Oil Ltd. v. Minister for Industry and Energy, the Irish government had stipulated that Irish oil importers had to purchase oil to the extent of 35% from the state owned refineries11. This was upheld by the ECJ, which considered this specification to be essential for the public security of Ireland12. However, in Spanish Strawberries13, the ECJ ruled that the free movement of goods could not be prevented. What had transpired was that French farmers had resorted to violence, in order to prevent the inflow of goods from other Member States. The ECJ ruled that in accordance with the provisions of Article 10 EC and Article 28 EC, the Government of France had to prevent the obstruction of these imports14. Hence, France cannot prevent the advertisement of this product, merely on the grounds that it had not endorsed it. QUESTION TWO No Member State can levy higher charges on imports from other Member States; this is the gist of Article 25 EC Treaty. All the same, Article 90 permits a Member State to levy taxes on imports, provided, such taxes are levied to the same extent on similar domestic products. In addition, this article permits Member States to impose product tax that complies with the harmonisation measures initiated as per the provisions of Article 93. As such, Article 25 precluded the imposition of a levy, if it is equivalent to a custom duty15. According to Article 90, Member States have the discretionary power to levy taxes, provided such levy is within the limits specified by harmonisation. In our present problem, the EU required Italian wines to be subjected to a health check. As a part of this measure, the French authorities required Guiseppe to submit its product to a health check. Moreover, they required Guiseppe to pay the unloading and storage charges. Guiseppe cannot object to these charges, because Article 90 bestows discretionary power upon the Member States, if the latter impose the same charges on similar domestic products. In Commission v UK (Re excise duty on wine), the UK government imposed heavier taxes on wines than on beer. Beer is prepared locally, whereas wine is imported from other Member States. The ECJ held that the imposition of higher tax on wines infringed Treaty Articles. This UK tax, which was higher than that in other Member States, had restricted the free movement of goods between Member States16. In Commission v. Germany Re Animals Inspection Fees case, the German authorities collected additional amounts towards maintenance of the animals’ inspection infrastructure. The ECJ held that these inspections were patently required by EC law; hence there was no equivalent effect to customs duties. Therefore, such fees were permissible17. As per the ruling in this case, economic burden is not a valid reason for non – compliance with EU Law; hence, Guiseppe cannot plead exemption from the additional charges levied by the French, in the course of conducting tests on the imports. Mutual recognition is essential for maintaining the single common market. In case of any dispute with regard to the free movement of goods and services, the rules of the Member State of origin are to prevail. This establishes the principle of subsidiarity, while eliminating the enactment of other rules, and it complies with the local, regional and national traditions18. In Procureur du Roi v. Benoit and Gustave Dassonvile19, and Rewe – Zentral (Cassis de Dijon) 20 the ECJ held that some of the trade restrictions imposed by Member States had breached Article 28 EC21. In Franzen22 the requirement under Swedish law for every importer of alcoholic beverages to procure a license was set aside by the ECJ, because it infringed Article 28 EC Treaty23. For promoting the free movement of goods, the EU harmonized taxation and established the maximum amount of such tariffs that could exist between third countries and its Member States. The result of these initiatives has been that customs, tax barriers or regulations that hinder free movement of goods, are no longer extant in the EU24. The national rules and tariff apply to the free movement of goods if there are no common rules. The Member State that applies the rules should ascertain whether those goods had complied with the national standards of the state where they had been produced. Goods from a Member State that comply with the national rules of that Member State have to be allowed to move freely throughout the EU. If a Member State wishes to stop the inflow of such goods, it should have justifiable reasons, like environmental damage or health hazards to its citizens25. As such, Article 28 deals with imports and Article 29 deals with exports. Albeit, a Member State’s domestic legislation prevents the export or import of an insignificant quantity of goods; the Member State cannot utilize this prevention to validate such legislation. Furthermore, the free movement of goods cannot be prevented on the basis of such domestic legislation26. In Keck and Mithouard, the ECJ held that the French law had contravened the provisions of Article 28 EC27. The ECJ had opined that Article 28 prohibits quantitative restrictions and measures that would create equivalent effect between Member States. It was held by the ECJ that a measure had equivalent effect on quantitative restriction, if that measure impeded the free movement of goods between Member States28. It was held by the ECJ that a Member State cannot prohibit the import of goods that were legally manufactured in another Member States, on the basis of its national laws that are of a greater stringency than those of the latter29. In Campus Oil Ltd. v. Minister for Industry and Energy, the Irish government stipulated that Irish oil importers had to purchase oil to the extent of 35% from the state owned refineries30. This was upheld by the ECJ, which considered this specification to be essential for the public security of Ireland31. However, in the Spanish Strawberries32, the ECJ ruled that the free movement of goods could not be prevented, resulting in violent protests by the French Farmers. The ECJ ruled that in accordance with the provisions of Article 10 EC and Article 28 EC, the French Government had to prevent the obstruction of these imports33. In Commission v Italy, Italy imposed higher taxes on the export of valuable art objects in order stop the export of the same from its territory. The Commission viewed this higher tax as prohibition of exports and held that such imposition would be a restriction of free movement of goods34. In German Beer, the ECJ held that Germany had violated Article 28, by enacting legislation, which required beer manufacturers to use only the word Bier, if a specific combination of ingredients was used to make beer. The ECJ held that as the manufacturers of beer have to display the ingredients on the container, the consumer could decide whether the ingredients were harmful or whether to consume the beer. By imposing such restriction, Germany had deliberately infringed the principle of proportionality35. The UK imposed a higher tax, in comparison to similar domestic products, on Guiseppe. This is a clear case of discrimination against the products of other Member States, which violates Article 28 EC Treaty. Guiseppe can claim redressal against the UK authorities for discriminatory levy of tax on its products. Consequently, the additional amounts levied on Guiseppe’s wines have to be rescinded. Works Cited Article 10 EC Treaty Article 25 EC Treaty Article 28 EC Treaty Article 29 EC Treaty Article 30 EC Treaty Article 90 EC Treaty Bailey, Allen & Bailey, Melinda C, “EU Directive Handbook: Understanding the European Union Compliance”, CRC Press, 1997 Barnard, Catherine & Scott, Joanne, “The Law of the Single European Market”, Hart Publishing, 2002 C - 7/68 Commission v Italy (Re Export Tax on Art Treasures) (1968) ECR 617 C – 8/74 Procureur du Roi v Benoit and Gustave Dassonville (1974) ECR 837 C – 120/78 Cassis de Dijon (1979) ECR 649 C – 170/78 Commission v United Kingdom (Wine and Beer) (1983) ECR 2265 C – 34/79 Henn and Darby (1979) ECR 3795 C – 72/83 Campus Oil Ltd v Minister for Industry and Energy (1984) ECR 2727 C – 121/85 Conegate (1986) ECR 1007 C – 302/86 Commission v Denmark (1988) ECR 4607 C – 62/90 Commission of the European Communities v Federal Republic of Germany (1992) ECR l-2575 C – 189/95 Franzen (1997) ECR 1-5909 C-265/95 Commission v France (Spanish Strawberries) (1997) ECR 1-6959 C – 420/01 Commission v Italian Republic (2003) ECR 1-065445 Craig, Paul & De Búrca, Gráinne, “EU Law”, Oxford University Press, 2008 Davies, Gareth, “European Union Internal Market Law”, Routledge Cavendish, 2003 Evans, Andrew, “The Integration of the European Community and Third States in Europe”, Oxford University Press, 1996 Free movement of goods, 27 December 2008, http://www.sweden.gov.se/sb/d/9625/a/88939 Israel, Jona, “European Cross-Border Insolvency Regulation”, Intersentia nv, 2005 Keck & Mithouard, Joined Cases C-267 & 268/91, (1993) ECRI-6097 Ortino, Federico, “Basic Legal Instruments for the Liberalisation of Trade”, Hart Publishing, 2004 Philipson, Agnette, Guide to the Concept and practical application of Articles 28 – 30 EC, European Commission, January 2001, 28 December 2008, < http://ec.europa.eu/enterprise/regulation/goods/docs/art2830/guideart2830_en.pdf>. Pitiyasak, Saravuth, FREE MOVEMENT OF GOODS WITHIN EU, Online Thailand Law Journal, 29 December 2008, < http://asialaw.tripod.com/articles/saravuth2.html>. The mutual recognition principle in the single market, 28 December 2008, < http://europa.eu/scadplus/leg/en/lvb/l21001b.htm>. Terra, Ben JM & Wattel, Peter, “European Tax Law”, Kluwer Deventer, 2005 Togan, Subidey & Hoekman, Bernard M., “Turkey: Economic Reform and Accession to the European Union”, World Bank Publications, 2005 Woods, Lorna, “Free Movement of Goods and Services Within the European Community”, Ashgate Publishing Ltd, 2004 Read More