LAW OF THE INTERNAL MARKET I:
Free Movement of Goods and Services
LLM European Competition Law and Regulation | University of Amsterdam
,1. INTRODUCTION
Learning objectives
Understand the rationale of economic integration in EU
Overview of different forms of economic integration
Goods and services regimes
Role of article 30 and 110 TFEU
1.1. Economic Integration
⇒ free trade allowing for specialisation which allows for comparative advantage (but this based on
perfect competition assumptions and assuming no regulation ⇒ tariff and non-tariff barriers)
● Levels of economic integration: preferential trade area (most favoured nation principle) < free
trade area (common internal policy but different external ones) < customs union (common
policy for non-members as well) < common market < economic union < monetary union <
political union < full union
○ Process of integration: [theory of liberal intergovernmentalism] spillover effect from
one area to another + institutions central in development of these, need MS allowing
for spillover effect to happen
■ Decentralised: non-discrimination, market access and mutual recognition
■ Centralised: harmonisation
● Reasons of economic integration:
○ Geopolitical goals: peace1 + increase EU’s standing in international order
○ Economic goals: allocative efficiency, prosperity and growth, more opportunities for
companies and consumers ⇒ free trade > specialisation > comparative advantage
+ Democracy: opening up to new technologies and ideas which promotes
political and civil freedoms
Economic liberalisation as counterpower to government power
⇒ process of integration as spillover effect in one area to another = liberal
intergovernmentalism because need MS to allow for spillover effect (+ role of private parties)
● Internal market: Articles 56-62 TFEU
○ Negative and positive integration: prohibitions + enacting measures at EU level
○ Goods and services: different regimes applicable
1.2. Fiscal / Quantitative Barriers
Customs Duties and CEEs Articles 28-30 TFEU
Art 30 with horizontal direct effect so can be used as remedies + restitutionary claims available!
1
France’s self-interest in accessing Germany’s coal and steel with union
, ● Definition CEE: “any pecuniary, however small and whatever its designation and mode of
application, which is imposed unilaterally on domestic and foreign goods by reason of the fact
that they cross a frontier, even if no discriminatory or protectionist effect”
- No de minimis rule + any form + at frontier + absolute prohibition
[Italian Marble, para 20]
Contra legem interpretation in this case: applicable to frontiers within MS with reason of ensuring
free movement throughout territory of customs union, regional borders too (para 22)
- (Court giving preliminary reference only when national court providing factual and legislative
context to show connecting factor, para 10)
[Jersey Potatoes]:
On marketing scheme obliging producers exporting potatoes to register and pay
contribution ⇒ About trade between MS because Jersey and UK as one single MS but still
impacting customs union, regional borders fall within Art 30 as well!
● Purely internal situations: “situation which is confined in all respects within a single MS”
⇒ CJEU without jurisdiction unless connecting factor to EU [Ullens de Schooten, para
50-53]
i. Possible cross border effect
ii. Impact of the decision to its own nationals and nationals of other MS
iii. Equality of rights
iv. National law following same as EU law
● Not CEEs: no exception allowed under Article 30! Need to not fall under it to be excluded!
1. Charged for inspections mandated by EU [Jersey Potatoes, para 56]
- As long as not charging more than that [Bauhaus]
- As long as not protectionist / discriminatory
2. Payment for service actually rendered to economic operator (freedom to use service
or not) [Italian Marble, para 31-32]
3. Article 110 on internal taxation (mutually exclusive provisions)
● Remedies: direct effect of Article 30 + repayment of unlawful charges
Tax measures Article 110 TFEU
Tax measures = measures that relate to a general system of internal dues applied systematically and
in accordance with same criteria to domestic products and imported products alike at the same
production stage for same chargeable event
⇒ MS fiscal autonomy and sovereignty as long as (1) not discriminatory, (2) not protectionist
a) Indirect protectionism prohibited for competing products
b) (in)Direct discriminatory prohibited for similar products
Free Movement of Goods and Services
LLM European Competition Law and Regulation | University of Amsterdam
,1. INTRODUCTION
Learning objectives
Understand the rationale of economic integration in EU
Overview of different forms of economic integration
Goods and services regimes
Role of article 30 and 110 TFEU
1.1. Economic Integration
⇒ free trade allowing for specialisation which allows for comparative advantage (but this based on
perfect competition assumptions and assuming no regulation ⇒ tariff and non-tariff barriers)
● Levels of economic integration: preferential trade area (most favoured nation principle) < free
trade area (common internal policy but different external ones) < customs union (common
policy for non-members as well) < common market < economic union < monetary union <
political union < full union
○ Process of integration: [theory of liberal intergovernmentalism] spillover effect from
one area to another + institutions central in development of these, need MS allowing
for spillover effect to happen
■ Decentralised: non-discrimination, market access and mutual recognition
■ Centralised: harmonisation
● Reasons of economic integration:
○ Geopolitical goals: peace1 + increase EU’s standing in international order
○ Economic goals: allocative efficiency, prosperity and growth, more opportunities for
companies and consumers ⇒ free trade > specialisation > comparative advantage
+ Democracy: opening up to new technologies and ideas which promotes
political and civil freedoms
Economic liberalisation as counterpower to government power
⇒ process of integration as spillover effect in one area to another = liberal
intergovernmentalism because need MS to allow for spillover effect (+ role of private parties)
● Internal market: Articles 56-62 TFEU
○ Negative and positive integration: prohibitions + enacting measures at EU level
○ Goods and services: different regimes applicable
1.2. Fiscal / Quantitative Barriers
Customs Duties and CEEs Articles 28-30 TFEU
Art 30 with horizontal direct effect so can be used as remedies + restitutionary claims available!
1
France’s self-interest in accessing Germany’s coal and steel with union
, ● Definition CEE: “any pecuniary, however small and whatever its designation and mode of
application, which is imposed unilaterally on domestic and foreign goods by reason of the fact
that they cross a frontier, even if no discriminatory or protectionist effect”
- No de minimis rule + any form + at frontier + absolute prohibition
[Italian Marble, para 20]
Contra legem interpretation in this case: applicable to frontiers within MS with reason of ensuring
free movement throughout territory of customs union, regional borders too (para 22)
- (Court giving preliminary reference only when national court providing factual and legislative
context to show connecting factor, para 10)
[Jersey Potatoes]:
On marketing scheme obliging producers exporting potatoes to register and pay
contribution ⇒ About trade between MS because Jersey and UK as one single MS but still
impacting customs union, regional borders fall within Art 30 as well!
● Purely internal situations: “situation which is confined in all respects within a single MS”
⇒ CJEU without jurisdiction unless connecting factor to EU [Ullens de Schooten, para
50-53]
i. Possible cross border effect
ii. Impact of the decision to its own nationals and nationals of other MS
iii. Equality of rights
iv. National law following same as EU law
● Not CEEs: no exception allowed under Article 30! Need to not fall under it to be excluded!
1. Charged for inspections mandated by EU [Jersey Potatoes, para 56]
- As long as not charging more than that [Bauhaus]
- As long as not protectionist / discriminatory
2. Payment for service actually rendered to economic operator (freedom to use service
or not) [Italian Marble, para 31-32]
3. Article 110 on internal taxation (mutually exclusive provisions)
● Remedies: direct effect of Article 30 + repayment of unlawful charges
Tax measures Article 110 TFEU
Tax measures = measures that relate to a general system of internal dues applied systematically and
in accordance with same criteria to domestic products and imported products alike at the same
production stage for same chargeable event
⇒ MS fiscal autonomy and sovereignty as long as (1) not discriminatory, (2) not protectionist
a) Indirect protectionism prohibited for competing products
b) (in)Direct discriminatory prohibited for similar products
