User:Kaihsu/IMlawA4

European internal market.

Section A: The scope of the four freedoms.

Chapter 4: Wholly internal situations.

Notes by Kaihsu Tai, 2012-01-25.

Goods
Reclassification of a customs duty within the EU is contrary to Article 30 TFEU (abolition of customs duties and charges with equivalent effect): Case 26/62 Van Gend en Loos.

“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 or if the product on which the charge is imposed is not in competition with any domestic product”: Joined Cases 2/69 and 3/69 Sociaal Fonds voor de Diamantarbeiders .

Regional levies based on transit across an frontier internal to a Member State are incompatible with Article 28 TFEU (customs union): Case C-163/90 Legros; developed in Joined Cases C-303/93 and C-407/93 Lancry; confirmed in Joined Cases C-485/93 and C-486/93 Simitzi and Case C-293/02 Jersey Produce Marketing Organisation.

National rules refusing to permit a name to be used for a product, legally so named in other Member States, is incompatible with Article 34 TFEU (quantitative import restrictions and measures having equivalent effect): Case 298/87 Smanor. Even the mere potential for a measure having equivalent effect to affect intra-Union trade is enough for the Treaties to apply: Case 8/74 Dassonville, confirmed in Case C-321/94 Pistre and Case C-184/96 Commission v France (foie gras).

“When a national measure has limited territorial scope because it applies only to a part of the national territory, it cannot escape being characterized as discriminatory or protective for the purposes of the rules on the free movement of goods on the ground that it affects both the sale of products from other parts of the national territory and the sale of products imported from other Member States. For such a measure to be characterized as discriminatory or protective, it is not necessary for it to have the effect of favouring national products as a whole or of placing only imported products at a disadvantage and not national products”; but such a measure, if proportionate, can be justified on public-health grounds under Article 36 TFEU: Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior and Publivía. These provisions of the Treaties do not apply on national measures that are less favourable for domestic goods (“reverse discrimination”): Joined Cases 80/85 and 159/85 Edah.

Persons: workers
Typically a transfrontier element needs to be present for the Treaties to apply. Hypothetical prospect of employment in another Member State do not establish Treaty applicability in wholly-internal cases: Case 180/83 Moser.

Third-country nationals cannot claim Treaty rights for family reunion when their EU-citizen children have never moved to another Member State: Joined Cases 35/82 and 36/82 Morson and Jhanjan. The Treaties (in particular Article 21 TFEU, citizenship of the Union) do not provide a remedy for wholly-internal reverse discrimination against citizens residing in one region in a Member State: Case C-212/06 Government of the French Community and Walloon Government. Article 21 TFEU does not apply to a dual-national not having exercised free-movement rights: Case C-434/09 McCarthy. But children with another EU nationality than that of the host Member State can raise EU law without having moved: Case C-148/02 Garcia Avello, Case C-353/06 Grunkin and Paul, Case C-200/02 Zhu and Chen. The distinguishing point is whether “genuine enjoyment of the substance of the rights” conferred by the Treaty is deprived by the national measure at issue: see also Case C‑34/09 Ruiz Zambrano, Case C‑256/11 Dereci.

Article 45 TFEU “precludes an employer from requiring persons applying to take part in a recruitment competition to provide evidence of their linguistic knowledge exclusively by means of one particular diploma issued only in one particular province of a Member State” even though both parties in the case referred were from the same Member State, because persons “not resident in that province therefore have little chance of acquiring the Certificate and it will be difficult, or even impossible, for them to gain access to the employment in question”: Case C-281/98 Angonese.

Any EU citizen “who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in a Member State other than that of residence” falls within the scope of Article 45 TFEU; returning nationals can raise Article 45 TFEU against his home State: Case C-18/95 Terhoeve. (See also Case C-385/00 De Groot, Case C-152/03 Ritter-Coulais, Case C-212/05 Hartmann, Case C-527/06 Renneberg.)

But “national of a Member State who has exercised the right to freedom of movement for workers guaranteed by [Article 45 TFEU] and has ceased to exercise his occupational activity in the host Member State and returned to his Member State of origin [...] cannot rely on [that article] to obtain from the [host] Member State a right” unconnected to his former employment: Case C-33/99 Fahmi and Esmoris, confirmed in Case C-43/99 Leclere and Deaconescu.

The Treaties do not affect a residence requirement for candidacy in a regional election: Case C-535/08 Pignataro.

Services and establishment
Article 49 TFEU (establishment) does not apply to situations which are purely internal to a Member State: Case C-17/94 Gervais. Article 56 TFEU (service provision) cannot be applied to activities which are confined within a single Member State: Case C-41/90 Höfner v Macrotron. Confirmed in Case C-134/95 USSL nº 47 di Biella: these Treaty provisions “do not apply to a situation, such as that in the main proceedings, which is confined in all respects within a single Member State”.

The freedom to provide services could not be fully effective if a provider “were to be deterred from exercising it by obstacles raised in his country of origin to the entry and residence of his spouse”: Case C-60/00 Carpenter.

A national having a qualification from another Member State can have such recognized and thus establish themselves within their own Member State: Case 115/78 Knoors, strengthened by Directive 2005/36. But a Member State has a legitimate interest in preventing the evasion of national requirements using Treaty provisions: Case C-61/89 Bouchoucha.

A national residing both in his own Member State and another can raise Article 49 TFEU against his own Member State’s discriminatory tax treatment: Case C-107/94 Asscher; this does not apply where the establishment is in the home Member State, though the residence is in another: Case C-112/91 Werner.

Capital
Once a cross-border element is in place, the Treaty (in particular Article 63 TFEU) can be invoked: Case C-364/01 Barbier.

Even though the facts in a case referred are confined to a single Member State, ECJ may consider the potential “application of national legislation such as that in issue in the main proceedings to the extent that it is applied to persons resident in other Member States”: Joined Cases C-515/99 etc. Reisch. ECJ will consider a case where national rules require equal treatment of own nationals and other EU nationals: Case C-300/01 Doris Salzmann II.