Problem Question of EU Law

This question concerns the free movement of goods in Union law and in particular Article 28-30
and 34 TFEU. I will deal with the issues in this question separately.
First issue is that would the charges imposed by France in relation to inspection and storage for
the use of custom facilities be lawful. This issue clearly attracts Article 30 TFEU. Article 30
provides that “Custom duties on either imports/export and charges having equivalent effect
should be prohibited between member states.” The charges in question are not custom duties in
the traditional sense, so they could be regarded as Charges Having Equivalent Effect (CHEE).
CHEE has been defined in Commission v Italy (Statistical levy) as: “any pecuniary charge,
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.”
The charges of 100 & 200 pounds for inspection and storage are clearly pecuniary charges and
the charges here clearly relate to the imports and exports of the goods. The inspection of 3D
glasses is imposed by France while crossing a border so that requirement is satisfied. Now the
question is whether charges imposed by France would be lawful for the purpose of Art.30. As
the inspection of such glasses is not prescribed by the community law (Commission v Germany)
so it won’t fall with the exception of Art.30, so the charges for inspection clearly violate the
Art.30 TFEU. Further it could be argued that charges for storage might fall under the exception
of payment of service, but it might not be successful. To assess it, the court will look that
whether the service rendered benefit to the importer and it increased the actual cost of any
product, if so then it won’t fall under exception (Commission v Belgium), so as the charges of
storage gives benefit to France then it won’t be likely to fall under the exception. So both the
charges clearly violate Article 30 TFEU.
The second issue is whether the certificate of origin would be constituted as Quantitative
restriction or Measures Having Equivalent Effect (MEQR). Here Article 34 would be applicable
which provides that “Quantitative restriction on imports and all measures having equivalent
effect should be prohibited among Member States. MEQRs have been defined by Dassonvile;
“All trading rules enacted by member states capable of hindering, actually or potentially intra-
community trade.” By imposing the requirement of certificate of origin could hinder the free
movement of goods so here it should be considered as MEQR. further as per the International
Fruit case it held that imposing a requirement of having a specific license or certificate could
constitute MEQR, so the rule imposed by France would likely be considered as MEQR. As it is
established that demanding a certificate of origin is MEQR so it becomes a violation of Art.34
unless justified and proportionate. France could be able to justify this MEQR through Article 36.
They could justify it by using public health derogation given by Art.36. Here France has to prove
that the imported product (3D glasses) pose a real threat to their general public (Commission v
UK (UHT Milk)), if they won’t be able to prove it then France would be in violation of Art.34.
Now the question arises whether the action taken by the French Government is proportionate?
It would seem difficult for the government to argue successfully that its action in examining
glasses is proportionate, they could have relied on inspection of other countries, from which the
product is exported. So the proportionality test might not satisfy.
In conclusion, charges imposed by France for inspection and storage would likely to be deemed
as unlawful under Article 30 and the certificate of origin requirement likely constitutes an MEQR
under Article 34, as it cannot be justified and proportionate under Article 36.

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This question concerns the free movement of goods in Union law and in particular Article 28-30

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