| Movement Of Goods In Europe Essay, Research Paper
Report on the Basic Principles of free movement of goods
in Europe This report is based upon the
provisions made by the EU to implement and maintain the free movement of goods
and services among EU States.? The purpose of the report is to
outline the most important themes of EU legislation relating to this topic in a
condensed form.? It should take no more
than several readings of this document to become familiar with the provisions
of the Free Movement of Goods Act.In regard to the French beef
ban, sections 3.5 and 3.7 are most relevant.2.0 Methods of Procedure The steps I have taken to locate this information
are as follows: ??????????? ??????????? 2.1 Information obtained during law lectures2.2 General knowledge 2.3 Analysis of documentation and literature concerning the free movement
of goods in Europe. 2.4 World Wide Web 3.0 Findings 3.1?????? The main provisions of the free movement of goods policy are contained
in articles 9 to 37 of EU Treaty.? These
sections apply to goods, which originate in the EU member states and also to
those which have come from countries outside the EU.? Once goods are within the EU
they are considered as having passed the hurdle and will be treated in the same
legal respect as having been produced there.?
The Community?s Customs Tariff was the body set up to replace all
existing customs bodies.3.2
In order to develop free movement of goods within the
market, there are three obstacles. 3.2.1. ????????? Customs duties These are charges to be
paid for the import or export of certain goods.? 3.2.2.????????? Quantitative
restrictions This is the prohibition of
importing or exporting certain goods or placing limits on their numbers. 3.2.3.?????????? Tax ProvisionsArticle 95 prohibits
Member States from using internal tax rates to bias imports or exports.Traditionally, Member States
used these means to control trade. However there are other manners in which a
country can hinder the free movement of goods, these activities were not charges
or restrictions, but they had a similar effect.? These too, had to be prohibited. 3.3????????????? Goods
and Products covered by Articles 9 to 37 Article 9 provides that the
provisions of the treaty will apply to products, which originate in a Member
State and to products which have entered the system from a third country
outside the EU.? Regarding products from
outside the EU the idea is that once the custom or levy has been paid to the
first EU State it enters it can then move freely without being subject to
further restrictions.? Products are
determined to have originated from wherever the last substantial process or
operation was performed.The treaty does not
distinguish between ?goods and products? the case of EC Commission V Italy somewhat clarified this issue.? This case was regarding the transferral of
certain national treasures.? On
conclusion the Court determined that goods included products that can be valued
in money and which are capable as such, of forming the subject of commercial
transactions, including Art.? 3.4?????? Customs Duties and
Charges having equivalent effect: Articles 9 to 17 Article 9 details how the
community shall be based upon a customs union, which shall cover, all trade in
goods and which shall involve ?the prohibitions between Member States of
customs duties on imports and exports and of all charges having equivalent
effect. Also the adoption of a community customs tariff in their relations with
third countries?.? Articles 12 to 17
then go on to deal with these matters in a more specific way.? Article 12 is the provision that prevents
Members States from introducing new customs duties and charges having
equivalent effect and from increasing those, which they already apply in their
trade with each other.? This Article was
effective in the Van Gend en Loos
case 1963 where the Dutch government placed certain goods into a higher customs
duty bracket so as to increase revenue.?It is difficult to define what a charge having an
equivalent effect is.? Loosely speaking
any payment demanded from an importer or exporter can amount to a charge having
an equivalent effect.?B. McMahon, European Community Law in
Ireland 1993The consensus by the CCT as
stated in the WJG Bauhuis v Netherlands
State (1977) is that it is important to look at each case under the light
of the objectives proposed by the Treaty i.e. to ensure the free movement of
goods.? This attitude prevents the
irritation of cases involving charges for stamps and containers necessary for
transportation and of small expense but which technically break the provisions
of the Act. There are fees required by
Law and for public benefit.? Such as
charges for the inspection of meat before it enters a State or administration
charges.? However these charges must not
be of benefit to the government nor to the Importer/Exporter.3.5
Quantitative
Restrictions and Measure having Equivalent Effect: Articles 30 ? 36 A Quantitative restriction
is when a Member State discontinues the import of a good or the import of
certain amounts of that good.? A complete
ban on British beef would be a quantitative restriction. The European court described
the exact meaning of a measure having an equivalent effect as ?trading rules enacted by Member States which are
capable of hindering, directly or indirectly, actually or potentially,
intra-Community trade . . .?For example in EU Commission v Ireland (1982) a
government sponsored ?Buy Irish? campaign was declared as being a measure
having equivalent effect to a quantitative restriction, as it could obviously influence
imports and was clearly discriminatory.However other measures have
been proved to be not directly applicable or discriminatory but contravene the
intentions of policy nonetheless.? In
the Cassis de Dijon case it was held
that even though the restriction applied to both home and foreign produce there
was no substantial reason for this law and was used mainly to safeguard home
produce, it therefore opposed the policy.Similarly to Customs duty
restrictions, Article 31 prevents States from introducing any new restriction.Other examples of measures
which have an equivalent effect to a quantitative restriction are: Price
controls, import licencing requirement, as well as inspection fees demanded on
imports for veterinary and public health inspection of meat.? 3.6?????? Public Morality, Public
Policy and Public Security. The principal exception to
the prohibition of quantitative restrictions is contained in Article 36 which
excludes Articles 30 to 34 on the 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 and the protection of industrial and
commercial property. 3.6.1
Public MoralityMember States have certain discretion in what they
allow into their Country based on Public Morality.? Some Member States have tried to take advantage of this Article
namely the UK who tried to disallow the import of inflatable sex dolls on the
grounds of public morality. However similar sex dolls manufactured in England
were freely available, the argument was rebuked.3.6.2
Public Policy This is a vaguer term and is capable of being
easily abused by Member States.? The
Court of Justice has been vigilant in this respect.?The conclusion must be, then, that the concept of
public policy relates purely to the fundamental interests of the State and that
the interpretation of the concept is consistent with that adopted in relation
to persons and services.? L
Gormely, Prohibiting Restrictions on Trade within the EEC 1984 3.6.3
Public Security ??????? This applies not only on the
grounds of dangers to public safety such
as the import of weapons but also in respect to the protection of
economies.? An import or export may pose
a serious threat on an economic situation.?
This was seen in an Irish case where companies importing petroleum were
told to purchase a percentage of their oil from the Irish company Whitegate as
it was the only Irish Oil Company.? The
Irish government was permitted to do this, as without Whitegate there may be a
disruption in supplies.?????? ??????? 3.7?????? The protection of Health
and Life of Humans, Animals and Plants. ?Article 36 The Court of Justice has been very vigilant in making sure
that this Article does not dissolve the principle of the free movement of goods
treaty.? It has done so by declaring
that the exception must be used only to the minimum extent necessary to achieve
the health and life objectives (i.e. the principle of proportionality must be
observed).? It will not allow a trade
ban on goods based on Article 36 if it is merely a disguise for discrimination
based on other idiosyncrasy.? In other
cases the Court has, even where a national measure is probably justified under
Article 36, frequently struck down a measure as being disproportionate. To this
extent in these cases the Court has been heard to say.?Even
if the measure can be considered justified within the terms of Article 36, it
is nevertheless not allowed because it contravenes the principle of
proportionality?L Gormely, Prohibiting Restrictions on Trade within the EEC 1984 It
is understandable that Member States may want to inspect incoming goods for
public safety.? The Court has been
attentive in this area so as to ensure that the inspection of these goods is
for bona fide reasons and again not a
plot to effect quantities or increase revenue.Once
a Country has joined the community system and has adopted the directives of the
EU it is difficult for them to use Article 36.?
An introduction of a common market may raise the standards of one State,
and slightly lower the standards of another.?
This is why Member States? acts will be subjected to scrutiny by the
Court of Justice and will have to conform to whatever limits laid down by
Community Directives.? The introduction
of a trade ban which has already been terminated by the EU is a violation of an
EU directive therefore the member State will be given little latitude in their
argument. ???????????????? 4.0 Bibliography World Web WWW.europa.au.int WWW.lowpay.gov.uk WWW.lawoffice.com WWW2.echo.lu/legalBooks McMahon,
B., (1993) European Community Law in Ireland.
Butterworths. Weatherill, S., (1995) EC Law. Penguin. Goyder,
D.G., (1993) EC Competition Law. BCI. George,
S., (1990) Politics and Policy in
Europe. Penguin. Shaw,
J., (1993) European Community Law. Cortwell Goldman,
B., (1973) European Commercial Law. Penguin. Elles,
N., (1989) Community Law through Cases. TGC
books. Smit,
H., (1986) Columbia Law School Project
On Europe. Chapman and Hill. Gormely,
L., (1984) Prohibiting Restrictions on
Trade within the EEC. Penguin. Other Sources Mulconry, S., (1999) ?France V UK?, in Business and Finance. 4 October. Marlowe, L., (1999) ?French set to Continue in Beef Ban? in The Irish Times. 23 October Page 7 of 9.
|