The practice and procedure of the CJUE in commercial matters

- the course is about the jurisprudence of the ECJ regarding the fundamental
freedoms of the internal market: free movement of goods, capital, services, and
labor.

- the internal market is essential for the EU, because it reflects a very high level
of integration and express the success of the integration; also it is visible for the
citizens;

- internal market is a part of the European economic integration: it is to be

located between the custom union and the economic and monetary union;

- economic integration is the most advanced form of the European integration;

the most visible and successful and attracts in an ineluctable way other form of
integration, such as social, judicial and political integration.

- The European Single Market, Internal Market or Common Market is a single

market which seeks to guarantee the free movement of goods, capital, services,
and labour and communcompetiotion rules.

- The ECJ played an essential role in the achievement of this important

European project, by developing the principles of the nation treatment and
access on the market.

Free movement of goods:

- Article 26 TFUE
(ex Article 14 TEC)
1. The Union shall adopt measures with the aim of establishing or
ensuring the functioning of the internal market (is has a concurrent
competence with the Member States in this field – subl. n.), in
accordance with the relevant provisions of the Treaties.
2. The internal market shall comprise an area without internal
frontiers(so, internal markets comprise the custom union - subl. n.),in
which the free movement of goods, persons, services and capital is
ensured in accordance with the provisions of the Treaties.
(…)
 FREE MOVEMENT OF GOODS
Article 28
(ex Article 23 TEC)
1. The Union shall comprise a customs union which shall cover all trade
in goods and which shall involve the prohibition between Member States
of customs duties on imports and exports and of all charges having
equivalent effect, and the adoption of a common customs tariff in their
relations with third countries.
The customs union of the European Union removes customs barriers
between member states and operates a common customs policy towards
external countries, with the aim "to ensure normal conditions of
competition and to remove all restrictions of a fiscal nature capable of
hindering the free movement of goods within the Common Market".

Article 30 of the Treaty on the Functioning of the European Union ("TFEU")

prohibits border levies between member states on both European Union
Customs Union produce and non-EU(third country) produce. Under Article 29
of the TFEU, customs duty applicable to third country products are levied at the
point of entry into EU, and once within the EU external border goods may
circulate freely between member states.

Under the operation of the Single European Act, customs border controls
between member states have been largely abandoned. Physical inspections on
imports and exports have been replaced mainly by audit controls and risk
analysis.

Article 30 of the TFEU prohibits not only customs duties but also charges
having equivalent effect.So, we have an absolute interdiction of custom
duties on import and export and charges having equivalent effect.

The European Court of Justice defined "charge having equivalent effect" in

Commission v Italy.

[A]ny pecuniary charge, however small and whatever its designation and
mode of application, which is imposed unilaterally on domestic or foreign
goods by reason of the fact that they cross a frontier, and which is not a
customs duty in the strict sense, constitutes a charge having equivalent
effect... even if it is not imposed for the benefit of the state, is not
discriminatory or protective in effect and if the product on which the
charge is imposed is not in competition with any domestic product.
A charge is a customs duty if it is proportionate to the value of the goods; if it is
proportionate to the quantity, it is a charge having equivalent effect to a customs
duty.

There are three exceptions to the prohibition on charges imposed when goods
cross a border, listed in Case 18/87 Commission v Germany. A charge is not a
customs duty or charge having equivalent effect if:

 it relates to a general system of internal dues applied systematically and in

accordance with the same criteria to domestic products and imported
products alike,
 if it constitutes payment for a service in fact rendered to the economic
operator of a sum in proportion to the service, or
 subject to certain conditions, if it attaches to inspections carried out to
fulfil obligations imposed by Union law.

This interdiction illustrates the negative integration. Negative integration

means to eliminate obstacles. We have two categories of obstacles: at the
borders of Member States (customs duties but also charges having equivalent
effect)and in the Member States.

Obstacles to free movement in Member States:

Article 34
(ex Article 28 TEC)
Quantitative restrictions on imports and all measures having equivalent
effect shall be prohibited between Member States.
Article 36
(ex Article 30 TEC)
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; the protection of national treasures
possessing artistic, historic or archaeological value; or the protection of
industrial and commercial property. Such prohibitions or restrictions shall
not, however, constitute a means of arbitrary discrimination or a disguised
restriction on trade between Member States.
Free movement of goods within the European Union is achieved by a customs
union and the principle of non-discrimination. The EU manages imports from
non-member states, duties between member states are prohibited, and imports
circulate freely. In addition under the Treaty on the Functioning of the European
Union article 34, Quantitative restrictions on imports and all measures having
equivalent effect shall be prohibited between Member States.

Measures having equivalent effect (MEERC):

Definition: any measure emerging from a public authority (even a

recommendation) and any administrative practices witch once applied makes
that imports from other Member States to be impossible, more difficult or more
expansive in comparison to the national products.In this case, we have a relative
prohibition, that means that Member Statescan use MEERC only if they can be
justified on grounds of public morality, public policy or public security; the
protection of health and life of humans, animals or plants; the protection of
national treasures possessing artistic, historic or archaeological value; or the
protection of industrial and commercial property. In all cases, these measures
must respect the principle of necessity and proportionality. Creation of the ECJ,
the principle of necessity and proportionality means that any MEERC should be
justified on a public ground, necessary in order to achieve that ground,
proportional to the ground and the less aggressive measure possible for the
internal market.

Jurisprudence for the measures having equivalent effect: Cassis de Dijon

(for the extensive sense, covering all measures, related to content, packaging and
commercial conditions); Keck and Mithouard (for the restrictive sense, covering
only condition related to the content of good).

Cassis de Dijon facilitated the affirmation of mutual recognition

principle, meaning that goods manufactured according to the rules of a
certain Member State can freely circulated on the territory of other
Member States, because these States should TRUST those nation rules.

In Procureur du Roi v Dassonville the Court of Justice held that this rule
meant all "trading rules" that are "enacted by Member States" which could
hinder trade "directly or indirectly, actually or potentially" would be caught by
article 34.[32] This meant that a Belgian law requiring Scotch whisky imports to
have a certificate of origin was unlikely to be lawful. It discriminated against
parallel importers like MrDassonville, who could not get certificates from
authorities in France, where they bought the Scotch. This "wide test",[33] to
determine what could potentially be an unlawful restriction on trade, applies
equally to actions by quasi-government bodies, such as the former "Buy Irish"
company that had government appointees.[34] It also means states can be
responsible for private actors. Generally speaking, if a member state has laws or
practices that directly discriminate against imports (or exports under TFEU
article 35) then it must be justified under article 36. The justifications include
public morality, policy or security, "protection of health and life of humans,
animals or plants", "national treasures" of "artistic, historic or archaeological
value" and "industrial and commercial property". In addition, although not
clearly listed, environmental protection can justify restrictions on trade as an
over-riding requirement derived from TFEU article 11.[36] More generally, it has
been increasingly acknowledged that fundamental human rights should take
priority over all trade rules.

Often rules apply to all goods neutrally, but may have a greater practical
effect on imports than domestic products. For such "indirect" discriminatory (or
"indistinctly applicable") measures the Court of Justice has developed more
justifications: either those in article 36, or additional "mandatory" or
"overriding" requirements such as consumer protection, improving labour
standards, protecting the environment, press diversity, fairness in commerce, [44]
and more: the categories are not closed. In the most famous case Rewe-Zentral
AG v BundesmonopolfürBranntwein, the Court of Justice found that a German
law requiring all spirits and liqueurs (not just imported ones) to have a minimum
alcohol content of 25 per cent was contrary to TFEU article 34, because it had a
greater negative effect on imports. German liqueurs were over 25 per cent
alcohol, but Cassis de Dijon, which Rewe-Zentrale AG wished to import from
France, only had 15 to 20 per cent alcohol. The Court of Justice rejected the
German government's arguments that the measure proportionately protected
public health under TFEU article 36, because stronger beverages were available
and adequate labelling would be enough for consumers to understand what they
bought. This rule primarily applies to requirements about a product's content or
packaging.

The fiscal neutrality:

Article 110
(ex Article 90 TEC)
No Member State shall impose, directly or indirectly, on the products of
other Member States any internal taxation of any kind in excess of that
imposed directly or indirectly on similar domestic products.
 Furthermore, no Member State shall impose on the products of other
Member States any internal taxation of such a nature as to afford indirect
protection to other products.

The negative integration was continued by the positive integration,

meaning the adoption of legislative rules (regalements and directives)
related to good manufacturing and selling.