Article 30 TFEU

The Political and Sociological Context

Article 30 of the Treaty on the Functioning of the European Union^[1] was introduced as part of the provisions relating to the free movement of goods. The crux of this is described in Article 28 TFEU, which provides that “the Union shall comprise a Customs Union which shall…involve the prohibition between Member States of customs duties on imports and exports”.^[2] As the European Commission has observed, “the single market can only function properly when there is a common application of common rules at its external borders”.^[3]  Article 30, which relates to customs duties on imports and exports and “charges having equivalent effect”,^[4] was enacted in order to support this principle.^[5]

The Legal Context

As observed above, Article 30 applies not only to customs duties imposed on imports and exports, but to any charges having an equivalent effect thereto.^[6] It is therefore clear that the provision was intended to have a wide legal ambit in order to prevent States from being able to introduce charges which, although not customs duties per se, were still capable of having a protectionist effect and therefore undermining the operation of the free movement of goods within the Union.

This is clear from Commission v Italy,^[7]in terms of customs duties. There, it was held that the relevant question to be determined is not the intended effect of the charge imposed, but whether the actual effect was that “trade in the goods in question is hindered by the pecuniary burden”^[8] imposed by the tax. Of course, the decision in that case rested on the application of the provisions of the Treaty Establishing the European Economic Community,^[9] rather than Article 30 and one may therefore wonder whether introducing Article 30 had any new legal purpose.

In this regard however, it should be observed that Article 30 does not aim to distinguish between when duties are imposed on goods; this should be seen as a departure from the old Article 12 EEC^[10] which applied to new duties and charges with equivalent effect, Article 13 EEC^[11] which applied only to existing duties, and Article 16 EEC,^[12] which applied to exports.  The enactment of Article 30 “rendered [this] distinction between new and existing duties redundant”^[13] and indeed, it is submitted that this ensures that Article 30 supports a unified free movement principle, rather than the more fragmented approach which existed in relation to the imposition of charges and duties under the old Articles 12 and 13 EEC.

Key Operation and Changes to the Law

Article 30 is not concerned with the subjective intentions of the State imposing the infringing tax; rather, it looks to the actual effect of the tax on the free movement principle.^[14] As Craig and de Burca observe, this interpretation of the Article is necessary to avoid its applicability being “significantly weakened if a State could argue that a duty or charge should not be prohibited because its purpose was in some sense non-fiscal”.^[15]

Article 30 goes beyond relating only to customs duties, but also applies to any charges which have an equivalent effect. It has been held that Article 30 is triggered whenever a charge is introduced on a good which has crossed a border, “even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the produce on which the charge is imposed is not in competition with any domestic product”.^[16]  Indeed, the law now goes further than this and provides that even where a charge is not imposed on a product, but rather on a “necessary activity in connection with the product”,^[17] Article 30 may still be applicable if it affects goods which have crossed a frontier to a greater extent than domestic products.^[18] The operation of Article 30 and its predecessors therefore ensures that charges having an equivalent effect to customs charges cannot be used to circumvent the aims of the free movement principle.

There are a number of circumstances in which Article 30 does not apply, but, rather than operating as exceptions to the principle, these operate so that the relevant charges relate to a specific service.^[19] This includes charges made for inspections required to be carried out by EU law,^[20] where the imposed charges fulfil a number of conditions including that the charge does not exceed the cost of the inspection and is “prescribed by Community law in the general interest of the community”.^[21]  Charges are also permitted where they constitute payment for services rendered although again it is clear from Commission v Belgium (Customs Warehouse Case),^[22]that this applies in limited circumstances.

It is therefore clear that the changes made to the law by Article 30 and its predecessors operate to ensure the effective operation of the free movement of goods principle so that charges having equivalent effect cannot be used to undermine that principle, regardless of the intention of the imposers of such charges.

Article 34 TFEU

The Political and Sociological Context

Article 34 TFEU^[23] is the key provision relating to the prohibition on quotas and measures which have an equivalent effect to such quantitative restrictions.^[24]  Article 34 provides that, “quantitative restrictions on imports and all measures having an equivalent effect shall be prohibited”.^[25] The Article therefore supports the political principle of the free movement of goods by which trade is promoted throughout the Customs Union, in the sense that it operates as an “anti-discrimination rule”^[26] preventing States from being able to circumvent the rules prohibiting the imposition of customs duties and equivalent charges.  Politically, the operation of Article 34 has been controversial due to the fact that rather than simply preventing the imposition of charges which may have a greater effect on imported than domestic products, Article 34 has a role in influencing the regulatory policies of Member States.^[27] It is suggested therefore that Article 34 has the potential to go beyond the politically uncontroversial economic aims of promoting the Customs Union and instead represent an attempt to harmonise regulatory policies across the EU.^[28]

The Legal Context

As observed above, Article 34 applies not only to quantitative restrictions, but also to Measures Equivalent to Quantitative Restrictions (MEQRs).  The former have been defined as being “measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit”.^[29] In terms of the latter, the key case is Procureur du Roi v Dassonville,^[30]in which the Court held that “all trading rules enacted by Member States, which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade”^[31] are to be viewed as MEQRs.  It was later clarified, in Cassis de Dijon,^[32]that such measures did not need to be discriminatory and that Article 34 could apply to measures which were directed at both domestic and imported products if the effect on the imported product was likely to be greater, unless the measures could be shown as necessary to ensure the effectiveness of fiscal supervision, the protection of public health, the fairness of consumer transactions and the defence of the consumer.^[33] These mandatory requirements will be discussed further below.

Despite Article 34 applying to non-discriminatory measures, it is clear that the Article does also apply where measures are discriminatory, including for example measures relating to markings stating the origin of goods.  For example, in Commission v United Kingdom,^[34]it was held that such policies “ha[ve] the effect of slowing down economic interpenetration in the Community by handicapping the sale of goods produced as the result of a division of labour between Member States”^[35] and thus constituted a discriminatory policy. What should however be noted is that the legal ambit of Article 34^[36] is to prevent any measures, whether discriminatory or otherwise, from undermining the free market and the rules contained in Articles 28-30 TFEU.^[37]

Key Effects

Whilst Article 34 clearly supports the principle of free movement of goods and thus promotes the Customs Union as a fundamental principle of the EU, its exceptionally wide ambit has been criticised for going beyond supporting free movement and instead undermining State “regulatory autonomy”.^[38]

This is clear for example from Torfaen BC v B&Q^[39]in which it was held that unless it fell within the mandatory requirements, outlined above, a national rule preventing retailers from opening shops on a Sunday did breach Article 34. Whilst it is true that the rule was in line with the mandatory requirements,^[40] it is argued that the potential that Article 34 could be used in circumstances beyond those relating to market access, and instead relating to how those goods could be sold, was a step too far.^[41]

One might therefore expect the fact that the Court has sought to limit Article 34 so that it now applies only to the quality of goods, rather than to selling arrangements,^[42] to be a welcome step. Although it cannot be discussed extensively due to the short nature of this work, the problem with this new approach is that where rules related to selling are intertwined with the nature of the product itself, Article 34 still applies;^[43] the same position may be found where even though a rule is ostensibly related to selling, it has a differential impact in law or fact, impacting on imported products to a greater extent than domestic products.^[44]  Aside from the confusion this creates in terms of selling rules, it seems that Keck^[45]does not really limit Article 34 in any substantial manner and it is suggested that its usage is still likely to be problematic to Member States as it goes far beyond mere market access issues,^[46] the ostensible aim of the Article.  Whilst it may be true that recent case law does seem to signify a resurgence of the market access test^[47] in line with Dassonville,^[48] Keck^[49]has not been overruled^[50] and it is therefore difficult to accept that its problematic results no longer exist.

Bibliography

Table of Treaties

• Treaty Establishing the European Economic Community (EEC Treaty) (Treaty of Rome) 1957
• Treaty on the Functioning of the European Union (TFEU) 2007

Table of Cases

• Commission v Belgium [1984] ECR 1543 (Case 314/82)
• Commission v Germany [1988] ECR 5427 (Case 18/87)
• Commission v Italy [1968] ECR 423 (Case 7/68)
• Commission v Italy [1969] ECR 193 (Case 24/68)
• Commission v Italy (2009) ECR I 519 (Case 110/05)
• Commission v United Kingdom [1985] ECR 1201 (Case 207/83)
• Criminal Proceedings Against Keck and Mithouard [1993] ER I 6097 (Case 267/91)
• Essent Netwerk Noord BV v Aluminium Delfzijl BV [2008] ECR I 5497 (Case C 206/06)
• Geddo v Ente Nazionale Risi [1973] ECR 865 (Case 2/73)
• Procureur du Roi v Dassonville [1974] ECR 837 (Case 8/74)
• Rewe-Zentral Ag v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649 (Case 120/78)
• Tofdaen BC v B&Q plc [1989] ECR 3851 (Case 145/88)
• Vereinigte Familiapress Zeitungsverlags-und Vertreibs GmbH v Heinrich Bauer Verlag [1997] ECR I 3689 (Case C 368/95)

Books

• Berry E, MJ Homewood and Bogusz B, Complete EU Law: Text, Cases and Materials (Second Edition, Oxford University Press 2013)

• Craig P and de Burca G, EU Law: Text, Cases and Materials (Fifth Edition, Oxford University Press 2011)

Other Secondary Sources

• Barents R, ‘Charges of Equivalent Effect to Customs Duties’ (1978) CML Rec 15 415-434

• Bernard N, ‘Discrimination and Free Movement in EC Law’ (1996) ICLQ 45(1) 82-108

• Editor, ‘ECJ Examines Netherlands Electricity Price Surcharge’ (2008) EU Focus 240 14-15

• European Commission, ‘EU Customs Strategy’ (2012) available at http://ec.europa.eu/taxation_customs/customs/policy_issues/customs_strategy/index_en.htm accessed 9/2/2016

• Horsley T, ‘Unearthing Buried Treasure: Article 34 TFEU and the Exclusionary Rules’ (2012) EL Rev 37(6) 734-757

• Lianos I, ‘In Memoriam Keck: The Reformation of the EU Law on the Free Movement of Goods’ (2015) EL Rev 40(2) 225-248

• Snell J, ‘The Notion of Market Access: A Concept or Slogan?’ (2010) CML Rev 47(2) 437-472

• Spaventa E, ‘Leaving Keck Behind? The Free Movement of Goods After the Rulings in Commission v Italy and Mickelsson and Roos’ (2009) El Rev 34(6) 914-932

• Weatherill S, ‘Free Movement of Goods (2012) ICLQ 61(2) 541-550

• White EL, ‘In Search of the Limits to Article 30 of the EEC Treaty’ (1989) CML Rec 26235-280