User:Kaihsu/IMlawB2

European internal market.

Module B: Equal treatment and non-discrimination.

Chapter 2: Equal treatment and non-discrimination.

General framework: discrimination vs restriction
De Búrca in Barnard & Scott: A measure in question will fall somewhere within a spectrum of "protectionism – direct discrimination – indirect discrimination – restriction on access to market". Operationalizing a test to detect where it falls, i.e. any protective intent (or effect) of a measure is problematic (e.g. ‘likeness’?). This may then followed by an examination of the justification of – or applicable exemption on – the measure in question. Such negative regime for free trade needs to be considered in the context of positive regulatory regime.

Article 34 TFEU: import restriction
"Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States": Article 34 TFEU.

Recall Joined cases C-267/91 and C-268/91 Keck: If national rules applies “to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States”, they do not hinder trade between Member States by impeding access any more than it impedes the access of domestic products.

The ‘quantitative restrictions’ prohibited by Article 34 are ‘measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit’: Case 2/73 Geddo v Ente Nazionale Risi. This includes a total ban on the import of a product: Case 34/79 R v Henn and Darby, Case 124/81 Commission v UK (UHT milk). A quantitative restriction arose from the various inconveniences with which private persons were confronted when importing through Systembolaget: Case C-170/04 Rosengren.

A product ban hinders “access to the market [...] inasmuch as it has a considerable influence on the behaviour of consumers and prevents a demand from existing in the market at issue for such trailers. However, that prohibition must be regarded as justified by reasons relating to the protection of road safety”: Case C-110/05 Commission v Italy (trailers).

Directive 70/50/EEC was an early attempt to set out non-exhaustively examples of what is considered measures having an equivalent effect to a quantitative restriction.
 * Distinctly applicable measures (Article 2(3) of the directive) – those which apply based on whether the goods are a home product or an import – are prohibited: Case 249/81 Commission v Ireland (‘Buy Irish’). This is so even where they favour some national producers over other national producers and over imported products: Case C-21/88 Du Pont de Nemours Italiana (Mezzogiorno regional quota).
 * National rules requiring that the origin of goods should be identified are prohibited: Case 113/80 Commission v Ireland (Irish souvenirs), Case 207/83 Commission v UK (origin-marking).
 * So are those fixing prices (Case 82/77 Openbaar Ministerie v Van Tiggele, Case C-531/07 Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH) and favouring procurement from domestic producers (Case 50/83 Commission v Italy (used buses) and Mezzogiorno above; see also Case C-45/87 Dundalk).
 * Border checks and sanitary inspections, even where free, run the risk of violating Article 34: Case 4/75 Rewe-Zentrale (San José scale), Case 35/76 Simmenthal, Case 251/78 Denkavit.

Restrictions may be justified on the grounds of public health or environmental protection: Case C-524/07 Commission v Austria (roadworthiness of cars), Case C-54/05 Commission v Finland (vehicle import licence), LIBRO above. Reverse discrimination is permitted: Case 237/82 Jongeneel Kaas; but not where there exists an effect on intra-Union trade: Joined cases C-321–4/94 Pistre.

Measures “which, first, require private electricity supply undertakings to purchase electricity produced in their area of supply from renewable energy sources at minimum prices higher than the real economic value of that type of electricity, and, second, distribute the financial burden resulting from that obligation between those electricity supply undertakings and upstream private electricity network operators are not incompatible” with Article 34, “such provisions being useful for protecting the environment in so far as the use of renewable energy sources which they are intended to promote contributes to the reduction in emissions of greenhouse gases which are amongst the main causes of climate change” which the EU and its Member States have pledged to combat: Case C-379/98 PreussenElektra.

Article 35 TFEU: export restriction
"Quantitative restrictions on exports, and all measures having equivalent effect, shall be prohibited between Member States": Article 35 TFEU.

The test is whether the national measure has the effect of specifically restricting patterns of exports, thereby establishing a difference of treatment between trade within a Member State and its export trade: Case C-388/95 Belgium v Spain (Rioja). A new test is measures whose effect was to restrict exports and which created a difference between domestic trade and exports: Case C-205/07 Gysbrechts and Santurel.

Rules requiring export licences for watches where no similar licences were required for watches on the domestic market violates Article 35: Case 53/76 Bouhelier. A ban on the possession of horsemeat did not violate Article 35 TFEU: Case 15/79 Groenveld. Article 35 TFEU applies to bans on the export of products in transit through a Member State: Case C-367/89 Aimé Richardt.

Article 37 TFEU: State monopoly
Article 37 TFEU: public monopoly with its exclusive import/export right must be adjusted so as to ensure that there is no discrimination between nationals of Member States regarding the conditions under which goods are procured and marketed: Case 86/78 Grandes Distilleries, Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon).

Article 110 TFEU: taxation
Article 110 TFEU: "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."

Article 110 TFEU prohibits fiscal barriers (tax) to free movement of goods. It has direct effect and may be relied on by individuals before the national courts: Case 57/65 Lütticke. Objective criteria unrelated to origin exempts: Case 252/86 Bergandi. Then, if the goods are similar, Article 110(1) TFEU applies; otherwise, Article 110(2) is applied to see whether the tax was protective: Case 168/78 Commission v France (spirits). For consumer substitutability, see Case 45/75 Rewe-Zentrale.

A system that "embodies no formal distinction based on the origin of products [...] manifestly exhibits discriminatory or protective features" contrary to Article 110, "since the power rating determining liability to the special tax has been fixed at a level such that only imported cars are subject to the special tax whereas all cars of domestic manufacture are liable to the distinctly more advantageous differential tax": Case 112/84 Humblot (French cars). For unique products, see Case C-383/01 De Danske.

"A system of taxation which differentiates between certain beverages does not unduly favour domestic producers where a significant proportion of domestic production of alcoholic beverages falls within each of the relevant tax categories": Case 243/84 John Walker. See Case 170/78 Commission v UK (beer and wine), Case 106/84 Commission v Denmark, Case C-167/05 Commission v Sweden.

The rates applied to imports and the time and manner of assessment and collection of taxes must not be less favourable than those applicable to domestic equivalents: Article 110(1) TFEU, Case 55/79 Commission v Italy, Case 17/81 Pabst and Richarz. Taxing an exported product more heavily than an import or domestically consumed product violates Article 110(1) TFEU: Case 142/77 Larsen and Kjerulff.

Reverse discrimination of different categories of domestically-produced electricity is not prohibited: Case C-213/96 Outokumpu. Nor is a higher tax prohibited on imports where the higher tax reflects a justifiable difference between the products or their respective modes of production: Case 140/79 Chemial.

A levy which offsets some of the costs of domestic production is prohibited: Case C-234/99 Nygård.

Persons: freedom of movement for workers
Article 45 TFEU provides for the freedom of movement for workers. The relevant secondary legislation is the Citizens’ Rights Directive (2004/38/EC); and for workers, Articles 1–9 of Regulation (EU) 492/2011, codifying and repealing Regulation (EEC) 1612/68. Often Articles 49 (establishment) and 56 (services) are also engaged.

Obstacles to access to the employment market impeding freedom of movement of workers without enough public-interest justification violates Article 45 TFEU: Case C-415/93 Bosman; on assessing such justification, see Case C-325/08 Olympique Lyonnais. See also C-18/95 Terhoeve. Deterring from exercise of the right of free movement is prohibited, even if the link to Union law is tenuous: Case C-370/90 Surinder Singh, Case C-60/00 Carpenter. Article 45 have effect against professional regulatory bodies (Reyners, Bosman) and even trade unions: C-438/05 Viking Line.

Linguistic requirements: Article 3(1) of Regulation 492/2011
Non-discrimination precludes ‘the imposition of any requirement that the linguistic knowledge in question must have been acquired within the national territory’, but public policy goals exempt: Case 379/87 Groener, see Case 202/11 Las for subsequent proportionality test. However, it is in the interest of patients whose mother tongue is not the national language that there exist a certain number of dental practitioners who are also capable of communicating with such persons in their own language: Case C-424/97 Haim II.

Quotas (Article 4), employment assistance (Article 5) and recruitment (Article 6)
Article 4 of Regulation (EU) 492/2011 prohibits the application to Union workers of quotas applying to foreign workers: Case 167/73 Commission v France (merchant navy), Case C-279/89 Commission v United Kingdom (fishing vessels).

General right to non-discrimination: Article 7
Article 7 of Regulation (EU) 492/2011 provides for a general right to non-discrimination. This covers indirect discrimination such as counting service in home State towards seniority (military: Case 15/69 Ugliola, civil: Case C-15/96 Schöning-Kougebetopoulou); social advantages (inter alia Case C-266/95 Merino García); tax advantages (Case C-182/06 Lakebrink and Peters-Lakebrink).

If nonresident workers were not at a disadvantage by comparison with their resident counterparts there would be no violation of Article 7: Case 152/73 Sotgiu, Case C-35/97 Commission v France (steelworkers’ pensions).

Rules on the freedom of movement for workers "does not preclude the exclusion [...] of a national of another Member State who resides in that State and is in minor employment (less than 15 hours per week) in the [host] State from receiving a social advantage such as a child-raising allowance on the ground that he does not have his permanent or ordinary residence in the [host] State": Case C-213/05 Geven. But they preclude "legislation of a Member State under which it refuses, generally and in all circumstances, to pay to its nationals a benefit granted to civilian victims of war or repression solely because they are not resident in the territory of that State throughout the period of payment of the benefit, but in the territory of another Member State": Case C-499/06 Nerkowska. See Case C-20/12 Giersch where a residence condition found to be appropriate for increasing the proportion of Luxembourg residents who hold a higher education degree.

Provisions affecting migrant workers can only be justified if there is objective considerations independent of the worker&rsquo;s nationality and if they are proportionate to the legitimate aim pursued by national law: Case C-237/94 O&rsquo;Flynn.

A law that is not discriminatory and does not preclude or deter a worker to quit and take up another job does not breach Articles 45, 49, 56 TFEU: Case C-190/98 Graf.

Union activities and housing: Article 8
Article 8 of Regulation (EU) 492/2011 precludes national legislation that refuses foreign workers the right to vote in elections within an occupational guild: Case C-213/90 ASTI. Restriction on acquisition of immovable property by nationals of other Member States in Greece’s border areas violates inter alia Article 45 TFEU: Case 305/87 Commission v Greece.

Services and establishment
A rule reserving the profession of lawyer (avocat) to own nationals violates Article 49 TFEU (establishment): Case 2/74 Reyners. Rules ensuring the administration of justice must be objectively justified and no alternative less restrictive is possible: Case 33/74 Van Binsbergen, confirmed in Case 107/83 Klopp. This was generalized and summarized thus: “national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions:
 * they must be applied in a non-discriminatory manner;
 * they must be justified by imperative requirements in the general interest;
 * they must be suitable for securing the attainment of the objective which they pursue; and
 * they must not go beyond what is necessary in order to attain it”: Case C-55/94 Gebhard.

Requiring service providers to comply with standards in the host state when they already complies with those of the home state violates Article 56: Case C-341/05 Laval; such direct discrimination is saved only by express derogations and proportionality. In contrast, indirect discrimination is justified only by public interest requirement (Case C-288/89 Gouda) or express derogations plus same interest not protected at plus proportionality (Case 205/84 Commission v Germany (insurance cases)).

Article 56 TFEU (services) was not violated by national rules that prohibited advertising in Sweden of gambling organised for profit by operators in other Member States; but Article 56 TFEU was violated by subjecting to stricter penalties advertising of gambling organised by private operators outside that Member State than the advertising of private gambling within Sweden: Joined Cases C-447/08 and C-448/08 Sjöberg.

[Non-discriminatory measures that are however liable to impede freedom to provide services can also breach Article 56; hindrance affecting access to the markets in services capable of hindering intra-Union trade is only justified by public policy needs and must be proportionate: Case C-384/93 Alpine Investments. Such can only be justified with express derogations, same interest not protected in the home state, and proportionality: Case C-76/90 Säger.

Capital and payments
The prohibition of ‘restrictions’ (not ‘discrimination’) on the movement of capital laid down in Article 63 TFEU goes beyond the mere elimination of unequal treatment, on grounds of nationality, as between operators on the financial market: reiterated in Case C-98/01 Commission v United Kingdom (UK golden shares).

A measure likely to deter taxpayers from investing in public debt securities issued by other Member States violates Article 63: Case C-20/09 Commission v Portugal (tax amnesty). Likewise an obligation created a difficulty (since it required action from and gave rise to costs for the individual) liable to discourage non-resident taxpayers from investing capital in Portugal: Case C-267/09 Commission v Portugal (tax representative).