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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? campai

gn 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.

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