Tariff and fiscal barriers

Imposing some kind of taxation on goods to make them more expensive, discouraging importation
into the state.
You cannot have something fall into BOTH ART 30/ 110 and ART 34- they are mutually exclusive.

Commission v Denmark (cant some doubt on mutually exclusive): in Denmark, cars are taxed rather
high. Should the tax on this car be regarded as a measure have equivalent effect to quantitative
restriction because there was no discrimination (not ART 110), so it could be prohibited by ART 34.
Court said no that it does not have equivalent effect to quanittiave restriction. Court suggests that if
the tax was so high that no one will import it, it could fall under the scope of ART 34 as it prevents
access to the state.

De Danske: taxation of cars in Denmark. AG Jacobs was critical of earlier judgement because its not
logical with the structure of the treaty. The structure is premised on there being a distinction
between tariff barriers and non tariff barriers. The relevant provision should be ART 30/110 not ART
34. So, tax cant fall within the scope of ART 34.
Court didn’t say much, and we are still in the same situation, so door is open for ART 30 to be applied
to taxation if taxation is too stringent that it avoids importation.

You impose custom duties to make the goods more expensive, so they cant really compete with
domestic goods.
By contrast to ART 34, in ART 34, even if something is prohibited by ART 34, there are derogations via
justification and mandatory requirements, there is no derogation for ART 30; there is no derogation
for the ban on custom duties and charges havign equivalent effect.
So if a court determines that a charge has equivalent effect, it is automatically prohibited by the
treaty- Art Treasures.

Italy imposed a tax on the exportation on works of art but could they do so. Under ART 36 there is a
derogation on the grounds of protecting artistic or culturally heritage of a MS. Can you impose a tax
on that? No, there is no possible justification.

Any charge, however minute, on imports or exports, will be treated as prohibited by ART 30-
Statistical Levy.
Issue was Italy was makign imports and exports subject to a very small levy to compensate for the
cost. Court said it was not lawful for Italy to impose the tax.

Donner was importing goods from another MS and court said if you import a package through the
post, the post will charge you for it in term of custom clearing. Court of Justice said if the charge is
directly related to the operation of importation of the goods, that will be regarded as a charge havign
equivalent effect as custom duty.
So ART 30 made it illegal for the post office to charge.

Even crossing from a MS to another MS can be caught by ART 30.

Legros: There was a tax imposed on importation of goods into the french Caribbean islands, and this
was a charge having equivalent effect even if the goods are coming from mainland france.

Carbonati: exportation for marble from Carrara, Italy. If you were taking the marble out of the
municipality of Carrara, you need to pay a tax. Court said because you are imposing the tax by reason
the goods are leaving the territory (geographical area within the EU) to go to another part of the EU
(despite the same state), that is going to be regarded as a charge having equivalent effect to a
custom duty.
Custome duties are imposed for protective measures or generating revenue fro the state, but it
doesn’t matter.
The court doesn’t look at the purpose of the tax when determines if it has equivalent effect-
Diamantarbeiders.
Tax on importation of raw diamonds into Belgium to finance social funds for workers in the diamond
industry. Court said the change has equivalent effect.

No derogation from the ban of cushion duties having equivalent effect but the court accepts that
where you made the importer/ exporter pay for something in return for a service you provide to
them, that is consideration for a service so it is not a charge imposed merely by goods crossing the
border- warehousing charges.

As long as it is in a bonded warehouse, it is treated as if it wasn’t imported into the host sate so you
do not pay the exercised duty. Just import your goods in these warehouses but you will have to pay
for it. The charge is related to import so you might trade it as a charge havign equivalent effect, but
the court said if it a service provided to the importer, as long as the charge you impose is related to
the cost of providing the service, it is okay.

Court made some clarifications in this case:

- It has to be a genuine service for the importer- statistical levy: court said you are imposing
the service on custom duties, they did not offer, so it is not a genuine serivce rendered to the
importer, so it falls within the scope of ART 30.

- Donner case: court said it is inconceivable that people are going to go to the border to pick
up a parcel and clear it themselves. So the reality, they don’t have a choice, thus there was
no realistic choice for indivuals to do that. So post office did not have a genuine sericve to
the importer (people).

- Charge has to be proportionate to the cost of carrying out the inspection – Bauhuis

Article 30 prohibits charges having equivalent effect ART 110 discriminatory taxation.

Humblot: the more powerful the car, the higher the tax. Court found that the one category which
we have disproportionate taxations corresponds to the category with which there are not french
cars.

Commission v Greece; Court said the system was not discriminatory because there was no
particularly targeting.

Larsen case: ART 110 applies to imports and exports.

How to determine if the products are similar

1. Objective physical characteristic of the product; material, manufacture
2. The way people use the goods

Commission v UK: domestic product that is low taxed and imported product that is higher taxed. UK
said there are different markets these goods are sold in so there’s no competition. Court said there
would be total competition in that market as the market is distinct but that isnt true of all wines. By
having high taxes on wine, you are making it a luxury product.
Taxation is okay if you are taxing the domestic and international product the same

Co Frutta: the court considers even if there is no domestic production/ or very little, the court sees if
you have a similar system of taxation to other products.

But if it is not made at all in the country,

Commission v Denmark: high level of taxation of cars as no cars are made in Denmark as long as it
does not discirmate in favour of imported products.