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Published: Fri, 02 Feb 2018

Breach of treaty at customs case

(A) In relation to Jamie being asked by the German authorities to pay a custom charge of 50 Euros a day per consignment can be argued is in breach of Art.28 and 30 of the Treaty on the Functioning of the European Union (TFEU) previously Art.23 and 25 EC Treaty. Art.28 states that ‘The Union shall comprise a custom 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 traiff in their relations with their countries’. [4] 

Art.30 TFEU specifically prohibits the introduction of any customs duties, or charges having an equivalent effect to customs duties (CEE) on either imports or exports between Member States. Art.30 TFEU states that ‘customs duties on imports and exports and charges having equivalent effect shall be prohibited between Members States. This prohibition shall also apply to customs duties of a fiscal nature’. Customs duties and charges having an equivalent effect were defined in the case of Commission v Italy (1969) as ‘any 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’. [5] 

The levying of a pecuniary charge by member states on goods entering or leaving their territory is completely incompatible with the ideal of an internal market within which goods are capable of moving freely. The court has been uncompromising, no matter what the purported reason for the charge is. For example, in Sociaal Fonds voor de Diamantarbeiders (1969), a 0.33 per cent charge on imported diamonds was paid into a social fund for workers in the diamond-mining industry in Africa. The Court of Justice acknowledged that the charge was “for a good cause”. However, it was still considered as a charge having equivalent effect to a custom duty and thus was prohibited by the Treaty.

A charge, which has the effect of discriminating between domestic goods, and similar goods of Member States that cannot be justified, this will therefore amount to a charge having equivalent effect. However, there are three different circumstances in which charges having an equivalent effect can be justified. Firstly, if a charge imposed as consideration for a specific service rendered to the individual importer or exporter. ‘The Court of Justice has accepted that where the charge imposed is merely payment for a service which the Member State has rendered directly to the importer, then the charge should not be regarded as a CEE provided the charge levied is in proportion to the service provided’ [6] (Commission v Belgium (1970)). Also in Ford Espana v Spain (1989) it was stated that ‘even if a specific benefit to the person or body paying the charge can be identified, the stated imposing the charge will still fall foul of what is now Art.30 TFEU if it cannot be shown that the sum demanded is proportionate to the cost of supplying the benefit’. [7] 

Secondly, charges arising from EU provisions. For example, in Bauhuis v Netherlands (1977), where the Dutch government imposed a fee for veterinary inspections of pigs being imported as this was important to satisfy the national law rules and the requirements of a Union directive. ‘The Court held that, where such checks are mandatory under Union law and are part of the process of ensuring the free movement of goods, they are permitted under what is now Art.30 TFEU’. [8] 

According to the facts in Jamie’s case presented in the question that the German authorities will charge Jamie 50 Euros a day per consignment for placing his ice-cream in temporary storage in special refrigerators at the German frontier. However, it is unclear due to insufficient information given as to why the ice-cream is being kept at the German frontier refrigerators. Nevertheless, if the storage of the ice-cream is for the completion of custom formalities then the German authorities are in breach of Art.30 TFEU because the charge for the service is solely connected with the fulfilment of customs formalities (Commission v Belgium (1970)) and therefore, the charge is disproportionate to the costs of rendering the service unlawfully. If Jamie’s goods are subjected to inspection for health and safety regulations or turn out be incompatible with the union law then Jamie will be liable to pay the charge imposed by the German customs authorities.

(B) The second barrier preventing Jamie to export his ice-cream is that the French government has introduced a 20% tax on the most fattening sweet products such as ice-cream whereas sorbets which are made in France are only taxed at 10%. This can be debated that the French government is in breach of Art.110 (1) TFEU (previously Art.90 (1) EC Treaty) states that, ‘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’. [9] 

In the case of Commission v France (1980), the Court of Justice stated that it was necessary to consider as similar product, which have ‘similar characteristics and meet the same needs from the point of view of consumer’. For example, in the case of John Walker v Ministeriet for Skatter (1986), the issue in this case was whether liqueur fruit wine was to whisky under Art.110 (1) TFEU. The Court of Justice held that they were not similar after analysing the objective characteristics of the product because they had different alcoholic contents and different manufacturing process. On the other hand, in the case of FG Roders BV ea v Inspecteur der Inverrechten en Accijnzen, the problem in this case was that a higher tax was imposed on French wine, Spanish sherry and Italian vermouth, compared to fruit wines produced in the Benelux countries. The Court of Justice held that fruit wines and grapes wine were similar as they are made from the same kind of agricultural product and meet the same needs of consumer and therefore, held to be similar.

The aim of Art.110 (1) is ‘to ensure free movement of goods between the Member States under normal conditions of competition by the elimination of all forms of protection which results from the application of internal taxation which discriminates against products from other Member States (Commission v Italy (1980)’. [10] Where one Member State imposes high level of tax on goods being imported to protect domestic product, then this Member State will be in breach of Art.110 (2) TFEU. Art.110 (2) states that ‘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’.

‘Thus while each Member States are free to decide on the rate of taxation to be applied to a particular product and discriminate between different types of product, they are not free to apply rates which discriminate, directly or indirectly, as between domestic and imported products which are similar or which afford indirect protection to the former. However, to do so would give a competitive advantage to the less highly taxed product and thereby distort competition within the single market’. [11] For example, in the case of Commission v UK (1983), the UK produced vast amount of beer, but very little wine. The UK levied five times more tax on wine than that on beer. The Commission claimed that UK breached Art.110 (2) TFEU and this was agreed by the Court as stated in Para 28 of this case and follows, ‘It follows from the foregoing consideration that, by levying excise duty on still light wines made fresh grapes at a higher rate, in relative terms, than on beer, the UK has failed to fulfil its obligations under the second paragraph of…[Article 110 TFEU]’.

Also in the case of Commission v UK (1983), ‘the Court of Justice carried out a two-stage process to determine whether the UK had breached what is now Art.110 (2) TFEU’. ‘The first stage is that the Court sought to establish some competitive relationship between the two products to ascertain if Art.110 (2) TFEU could be applicable at all. In considering this issue, the Court took account of the extent to which the goods were substitutable for each other. The Court will also examine the nature of this competition. The second stage is that the Court will ascertain whether the tax system is in fact protective of the domestically produced goods’. [12] 

According to the facts of this case as presented in the question, French government introduced a 20% tax on most fattening sweet product i.e. ice-cream where domestically made sorbets taxed at 10% and this could be argued that the French authorities are in breach of Art.110 (1) TFEU, because it can be debated whether ice-cream and sorbet are similar product, although they are made using different ingredients i.e. ice-cream uses milk ,whereas sorbet consist of frozen fruit and does not consists of milk, but they both can be said to meet the same needs from the point of view of consumers. If the Court finds the goods are similar under Art.110 (1) TFEU, then the tax will be unlawful and therefore, Jamie will have to pay the same tax level imposed on domestically made products.

However, if the goods are not found to be similar, Jamie can argue that French government are in breach of Art.110 (2) TFEU for providing indirect protection to their domestic goods because if Jamie’s ice-cream is taxed at the same level as domestic product, ice-cream sales will increase and therefore, causing problems for the French sorbets producers. Consequently, increasing the tax will ensure that sales of the ice-cream do not exceeds the sales of the sorbets. In these circumstances the French government will have to tax Jamie at the same level as the domestic goods.

(C) In regards to Jamie’s issue arising from the Italian regulatory authorities as Italian food regulation states that ice-cream must be made with cream containing no vegetable fat. However, vegetable fat is an essential ingredient in Jamie’s entire product and as a result Jamie’s ice-cream will be marketed as ‘Ice-cream substitute’ and therefore, the Italian food regulatory authorities are in breach of Art.34 TFEU, this can be read as ‘Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’. [13] To establish whether Art.34 prohibits a measure, it must either be a Quantitative Restriction (QR) or a Measure having Equivalent effect to a Quantitative restriction (MEQR).

There is no definition of QR in the treaty and therefore, the case law is important element in distinguishing what is meant by QR. The Court of Justice defined QR in the case of Geddo v Ente Nationale Risi (1973) as, ‘any measures, which amount to a total or partial restraint on imports or exports or goods in transit’. [14] In relation to Jamie’s case, there is no restriction put on the amount of ice-cream he can import into Italy and consequently, this is not a problem.

Also, there is no definition of MEQR, and therefore, the help of case law is needed. In the case of Procureur du Roi v Dassonville, MEQR is defined as, ‘all trading rules enacted by Member States, which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade [i.e. trade between member states within the European Union]’. Art.34 was applied in the case of Commission v Ireland, where the Irish government launched an advertising campaign to persuade consumers to ‘buy Irish’ and this was held to be incompatible with Art.34.

The principle of mutual recognition comes into light when arguing about the import and export products. This means that when one product is produced and sold in one Member State, the same product can be sold in another Member State without any obstacles. The principle of mutual recognition was applied in the case of Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon) (1979), where the German authorities refused to permit the importation of French “Cassis de Dijon” on the ground that its alcoholic strength was below the minimum alcohol content of 25 per cent. It was held while this was consider to apply to both domestic and imported goods, nevertheless, this type of rule constitute a barrier to trade free between Member States. The Court of Justice noticed that ‘there is 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 states; the sale of such products may not be subject to a legal prohibition on the marketing of beverages with an alcohol content lower than the limit set by the national rules’.

There are two measures laid down in the principle of mutual recognition and they are, Measures relating to ingredients and composition and Packaging measures. Measures relating to ingredients and composition were discussed in the case of Commission v Spain (2003) and Commission v Italy (2003), the issue in these cases was that the Spanish and Italian legislation provided that the only vegetable fat used in chocolate had to be Cocoa butter and this seems to be a problem for chocolate products made by Irish and British as they contain vegetable fat. They products have to be renamed as chocolate substitute in order for the product to be sold in Spain and Italy. The Court applied the presumption of mutual recognition laid down in Cassis de Dijon. The Court also stated that the forced name change to “chocolate substitute” created extra packaging costs and also depreciated the value of the product in the eyes of the consumers.

Packing measures were examined in the case of Walter Rau v De Schmedt (1982), in this case Belgian legislation has acted contrary to the principle of mutual recognition by requiring the other member states to package their products in a way that they finding suitable to be marketed in their territory.

According to question, it can argued that the Italian food regulatory authorities are in breach of Art.34 TFEU because as mentioned earlier, a Member State cannot prohibit the trade of a product which is lawfully made and sold in another Member State (Commission v Spain (2003) and Commission v Italy (2003)) and consequently, Jamie does not have to change the name of his product and can import ice-cream into Italy freely.

(E) Another problem that Jamie faces is that the Polish authorities refused to allow the sale of Jamie’s ice-cream on the ground that the added colour in the ice-cream is dangerous to health according to Polish reseachers. In these circumstances Jamie can argue that the Polish authorities are in breach of Art.34 TFEU because as it states that one Member State cannot prohibit trade of goods which are lawfully produced and sold in another Member State. However, the Polish authorities can derogate from the free movement of goods which is provided by the Treaty under Art.36 TFEU and also by the Court of Justice.

However, there are three exceptions to these derogations that rise as a result of trade: firstly, the Mandatory requirements, this is to do where the member state requires another member state to fulfil the formalities that contrary to the rules of the host state. Therefore, there are areas that should be satisfied by the member state in order to be allowed to market and sold in their territory; the effectiveness of fiscal supervision, the fairness of commercial transaction, public health protection and consumer protection.

Secondly, indistinctly applicable measure, this is where the restrictions is imposed on both the domestic and imported goods equally. Thirdly, the principle of proportionality, this is when restriction imposed on the free movement of goods must be necessary in order to protect the mandatory requirement. As in here the polish authorities have described their ban on Jamie’s ice-cream due to the health concerns that may rise as a consequence of its consumption.

As mentioned in the question, the Polish authorities are relying on the provision Art.36 TFEU and this states that ‘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’.

As Polish authorities are arguing that the reason to refuse the sale of Jamie’s ice-cream is to protect the health and life of humans. Whilst it is recognized that the protection of health is an important reason for derogating from the free movement of goods, there must be a genuine health alert since Article 36 must not be used to disguise a restriction on trade. Not all restrictions on imports need concern major health scares such as communicable diseases. For example in the case of Commission v France (Case 216/84), ‘French legislation prohibited the marketing of milk substitutes on the grounds that milk substitutes had a lower nutritional value and secondly they were harmful to some people. The Court of Justice rejected both arguments and held that milk substitutes had a lower nutritional value than milk product hardly constituted a health risk when consumers had so many other food products to choose from. The milk could pose a risk to some individual but the necessary information on labels must be provided for the consumer’. [15] 

According to the facts laid in Jamie’s case, as his ice-cream is being sold in the UK without any concern from the UK authorities and then there should not be any problem for the Polish authorities to consider the ingredients used in Jamie’s ice-cream to be dangerous to health. Also, Jamie’s has being selling his ice-cream for more than a decade, there had been no outbreak of health problem in the UK and therefore, the ban or the refusal to allow the sale of Jamie’s product might be for economic reasons (Commission v UK (1982). Therefore, it can be argued that the Polish authorities have no right under Art.36 TFEU refuse to allow the sale of Jamie’s ice cream.

(D) Jamie is having problem with the Denmark authorities in regards to the sale of his ice cream in cinema which is prohibited by the Denmark government. The issue of selling arrangements does not fall within Art.34 TFEU. The reason why selling arrangement are outside Art.34 is that ‘their purpose is not to regulate trade as such and because their effect and nature do not prevent access to the market, or at least they do not make it any more difficult for imported products to penetrate the market than national product. They impose an equal burden on both domestic products and imported product’. [16] 

In Criminal Proceeding against Keck and Mithouard (Keck), the Court of Justice set out the conditions in para 16, relating to selling arrangement rule that if they are not met, then the rule would fall within scope of Art.34 TFEU. The conditions are; ‘provisions of the rule apply to all traders operating within the national territory and they affect in the same manner, in law and in fact, the marketing of domestic goods and imports’. If these two conditions are met, then a rule relating to selling arrangements will not fall under Art.34 TFEU.

‘‘Selling arrangements’ will not breach Art.34 TFEU, provided they are non-discriminatory. This means that they must affect, in the same way, the marketing of domestic goods and goods from other Member States. If they do not affect the marketing of domestically produced and imported goods in the same way and are liable substantially to restrict access to the national market, then they will breach Art.34 TFEU’. [17] 

it can be argued that due to inadequate information whether domestically produced products i.e. ice-cream or similar goods are being sold in cinemas or not. If the two conditions set out in Keck are not met then selling arrangement rule would fall within Art.34 TFEU and therefore, Jamie will not be prevented from selling his ice-cream in cinemas. On the other hand, if the two conditions are met, then Denmark will have all the power to prohibit the sale of Jamie’s ice-cream in cinemas.

After studing all the relevant articles and cases in relation to the free movements of goods, there is a strong chance for Jamie to import his ice-cream in other Member States without the Member States authorities imposing any kind of customs duties charges, demanding inconsiderable high tax rate for his goods that are similar to those of domestically produced and sold goods or tax imposed to protect that particular domestic product. Jamie can import his ice-cream in any Member States without having to worry about their legislations because as his ice-cream is lawfully produced and sold in the UK, the other Member States cannot obstruct his products from being sold in their territory.

However, the only problem Jamie is likely to face is that he cannot choose where and when to sell his ice-cream in a Member State. This is because it has been left to that particular Member State to decide and impose selling arrangements rules for every goods being brought into their State.



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