Download customs duties - Podpora cizojazyčného profilu výuky práva na PF UP

EU Customs Union
Václav Stehlík
2/3/2011
Podpora cizojazyčného profilu výuky práva na PF UP
reg. č.: CZ.1.07/2.2.00/15.0288
A. Structure of the provision on the
free movement of goods
- art. 28-30 TFEU (23-25 TEC ) – prohibition of
customs duties and measures of equivalent
effect
- art. 110-113 TFEU (90-93 TEC ) – prohibition
of discriminatory and protectionist taxes
- art. 34-37 TFEU (28-31 TEC ) – prohibition of
quantitative restrictions and measures of
equivalent effect
B. Prohibition of customs duties and measures of
equivalent effect
Article 28
(ex Article 23 TEC)
1. The Union shall comprise a customs union which shall
cover all trade in goods and which stall 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.
2. The provisions of Article 30 and of Chapter 2 of this Title
shall apply to products originating in Member
States and to products coming from third
countries which are in free circulation in Member
States.
Article 29
(ex Article 24 TEC)
Products coming from a third country shall be considered
to be in free circulation in a Member State if the
import formalities have been complied with and
any customs duties or charges having equivalent
effect which are payable have been levied in that
Member State, and if they have not benefited from a
total or partial drawback of such duties or charges.
Article 30
(ex Article 25 TEC)
Customs duties on imports and exports and charges
having equivalent effect shall be prohibited between
Member States. This prohibition shall also apply to
customs duties of a fiscal nature.
Article 31
(ex Article 26 TEC)
Common Customs Tariff duties shall be fixed by the
Council on a proposal from the Commission.
Article 32
(ex Article 27 TEC)
In carrying out the tasks entrusted to it under this Chapter
the Commission shall be guided by:
(a) the need to promote trade between Member States
and third countries;
(b) developments in conditions of competition within
the Union in so far as they lead to an improvement in
the competitive capacity of undertakings;
(c) the requirements of the Union as regards the
supply of raw materials and semi-finished
goods; in this connection the Commission shall take
care to avoid distorting conditions of competition
between Member States in respect of finished goods;
(d) the need to avoid serious disturbances in the
economies of Member States and to ensure rational
development of production and an expansion of
consumption within the Union.
Summary – key points:
– customs union
– prohibition of customs duties and
charges of equivalent effect
– Common Customs Tariff
– goods with EU origin
– goods with third countries origin
– direct effect – Van Gend en Loos
2. The notion of „customs duties“
- customs duties – charges applicable on the
import/export of goods to/from a Member State
- the effect, not the purpose of the charges is
important
- the customs union deals with all kinds of goods
Definition of „goods“:
„all products which can be valued in money and which
are capable of forming a subject of commercial
transactions“
(7/68 Commission v Italy)
What are the reasons for introducing art. 28 TFEU?
Reasons for introducing art.
28 TFEU:
- prohibition of charges which, by
altering the price of the product,
has the restrictive effect on the
free circulation of the product
Should there be any exceptions to the
prohibition of customs duties?
Cases
- 7/68 Commission v. Italy –
tax/duty on the export of artistic,
historical and archaeological items
- 2-3/69 Diamantarbeiders –
customs duty on the imported
diamonds to Belgium
3. The notion of „charges of
equivalent effect“
- 24/68 Commission v. Italy
„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, 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.“
- charges of equivalent effect – the same rules as
the prohibition of customs duties
Cases:
24/68 Commission v. Italy –
„statistical levy“
87/75 Bresciani – „the charges for
obligatory veterinary inspections on
imported cowhides at the borders “
The result: no exceptions to this
prohibition
18/87 Commission v. Germany - „fees for inspections
on the importation of live animals based on EU
law“
The inspections may be charged on condition that:
- they do not exceed the actual costs of the
inspections in connection with which they are charged;
- the inspections in question are obligatory and
uniform for all the products concerned in the
Community;
- they are prescribed by Community law in the
general interest of the Community;
- they promote the free movement of goods, in
particular by neutralizing obstacles which could arise
from unilateral measures of inspection adopted in
accordance with art. 36 TFEU
Recovery of unlawful charges
- Member States are obliged to return it
- with respect to national procedural rules
- with the exception that the trader has not
passed the loss on consumers
- the Member States may be liable also for the
damage incurred
Summary:
charges levied at the borders may be
acceptable only if:
- they are levied for a specific service
for the trader
- they are prescribed by EU law
- they form a part of the national tax
system
C. The prohibition of the
discriminatory tax provisions
1. Treaty provisions:
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.
Key points:
- prohibition of discriminatory
taxes
- prohibition of protectionist taxes
- art. 110 does not create a
common tax system for MSs
The aim of the art. 110:
- to complement art. 28 TFEU
2. What is a tax?
Can a MS levy a tax on products that
it does not produce?
If yes,what would be the difference to the
prohibition of customs duties – art. 28 TFEU?
Case 193/85 Co-Frutta „tax on the importation of
bananas to Italy“
3. The prohibition of direct discrimination
21/79 Commission v. Italy – „regenerated oil“
- taxes on the regenerated oil were lower than on the
ordinary oil, not applicable for imports
196/85 Hansen – „tax reliefs on spirits“
- tax relief available to spirits made from fruit by small
business must be equally applicable to similar
imported spirits
55/79 Commission v. Ireland – „tax procedure“
- domestic producers were treated more leniently as
regards payment of the tax
4. The prohibition of indirect
discrimination
112/84 Humblot – „annual car tax“
5. National autonomy and
fiscal choices
196/85 Commission v. France – „sweet v.
liqueur wines“
- sweet wines produced in a tradition manner
with a lower tax – produced in areas with
worse growing conditions – acceptable if not
directly discriminatory
132/88 Commission v. Greece - „tax for
cars“
- no direct discrimination, objectives of social
policy - acceptable
6. The relation between art. 110/1
and 110/2 TFEU
-
art. 110/1 TFEU – prohibition of
discrimination
- art. 110/2 TFEU – prohibition of protective
taxes
How to determine similarity of
products?
Cases:
243/84 John Walker
- is liqueur wine similar to whisky?
- ECJ analysed:
- characteristics of the product
- alcohol content
- manner of production
- perception of products by consumers
(ECJ used 110/2)
184/85 Commission v. Italy – „consumer tax on bananas“
- are bananas a similar product to other kinds of fruits?
(ECJ used 110/2)
170/78 Commission v. United Kingdom – „tax on
beer and wine“
Summary:
The determination of similarity:
–
–
–
interchangeability of products
elasticity of supply and demand (price increase)
views of the consumers
Questions:
What is customs union?
What are the measures equivalent to customs duties?
Are there any exceptions to the prohibition of customs duties?
What is the relationship between prohibition of customs duties and
discriminatory taxes?
What is a discriminative tax and protectionist tax?
Could you summarize the conclusions of following cases?
- 193/85 CoFrutta
- 170/78 Commission v. United Kingdom
Reading:
Craig, P, de Búrca, G: EU law text, cases and materials,
Oxford UP, 4th edition, pages 637-665
Case-law
- 193/85 CoFrutta
- 170/78 Commission v. United Kingdom
Website:
http://europa.eu/pol/cust/index_en.htm
http://curia.eu
Thank you for your attention
See you next week