Report On The Basic Principles Of Free

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.