Legal and Economic Integration

IRAC Method - steps for legal reasoning

Issue - what is the issue? - what competences are questioned?
Rule - what are the relevant legal norms? - definition of the legal basis
Application - how do these norms apply to the facts?
Conclusion - how is a judge likely to decide?

Sources of EU Law

1 - Primary law (EU treaties)
2- General principles of EU law
3 - International Law
4 - Secondary Law
5 - Implementation of EU law

Primary Law

Treaties - TEU and TFEU - the things below are attached to the treaties:
- Protocols (binding)
- Annexes (binding)
- Declarations (non-binding) - statements of political commitments by the MS but they are not legally binding.
Additional Primary Law:
- The Charter of Fundamental Rights of the EU (CFREU) - fundamental rights that the EU recognises are in this. This is what legal order relies on.
- General Principles of EU law - CJEU

Treaties

- a formally concluded and ratified agreement between MS.
- Treaties embody a political compromise between all 27 MS, they are important because it is not easy to amend them
- relatively stable because they are so hard to change.

Ordinary Revision Procedure

Article 48 TEU - How can the treaties be changed?

- used when the EU is gaining new competences from the member states
1 - Supranational phase: changes of the treaties can be initiated by a MS, Parliament or Commission -\> the procedure is then opened by the Council with a simple majority
2 - convention phase (optional): convened by European Council (simple majority). composition: reps of national parliaments, heads of state/gov, EP, Commission. functioning: adopts a recommendation by consensus.
3 - intergovernmental phase: conferences with reps of MS
4- national phase: ratification according to national procedures, unanimity required (national phase is the hardest to pass)

simple procedure: doesn't include national phase, but cannot change EU competences.

General Principles of EU Law (GPEL)

- Established by the case law of the CJEU
- Not written in the Treaties
- Adopted by the charter of fundamental rights

content of GPEL

- Fundamental rights
- Responsibility of MS (CJEU, Francovich)
- Legal certainty
- Proportionality

GPEL applies to the EU institutions and MS

Where is GPEL justiciability found?

Article 2 TEU

International law

- International agreements where EU is a party (e.g. free trade agreements)
- Unilateral acts obliging the EU
- General international law (e.g. customaryinternational law)

International law is legally binding to the EU to which it is bound.

Secondary Law

types of legal acts - Art. 288 TFEU:
- Regulation
- Directive
- Decision

regulations

- General application - not directed at a specific individual or MS.
- Legally binding in all its elements - binding in its entirety
- Direct application in all MS (Ø implementation) (direct effect) - doesn't require MS implementation
- Has direct effect
- Detailed and universally applicable
- No national act needs to be taken, an individual or other MS can take them to court if the regulation is infringed.

directives

- General application
- Binding on all MS with regard to results, they can use whatever methods or forms they deem appropriate as long as they reach the desired result/outcome - but doesn't affect individuals
- Rule: no direct effect, need for implementation (transposition) by national governments.
o Deadline - set by each directive
o Form: law (at least in the material sense)
o Content: not necessarily identical

Exceptions that lead to direct effect - 3 conditions:
1 - No/bad implementation
2 - Deadline expired
3 - Obligation/right is unconditional and sufficiently precise
o These three conditions lead to a direct effect.
- This allows for discretion and variance by MS.

decisions

- Individual act - has specific addressees
- Binding in all its elements
- Direct application (direct effect) - but not general application

secondary law: recommendations & opinions

recommendations:
- Invitations addressed to MS or individuals (natural and legal persons) to conform with an adopted line of conduct
- Non-binding - except in excessive deficit procedure)
- 'soft law'
- Agreement that there are benefits from conforming with this line of conduct but it is not binding.
- No legal issues if an MS does not comply

Delegated acts (Art. 290 TFEU)

- Non-legislative acts of general application
- Commission delegated by legislative act
- Supplement or amend non-essential elements
- Subject to supervision by European Parliament and Council: right of revocation and objection

atypical acts

- Sui generis decisions
- Interinstitutional agreements
- Resolutions and conclusions
- Communications of the Commission

Implementation of EU law

in the hands of MS

implementation competence:

rule: MS and national administrations
exception: EU, esp Commission with implementing acts (Art. 291(2) TFEU), where uniform implementation is needed; MS control through 'comitology committees'

interpretation of EU law

- guarantee of uniform interpretation by CJEU
- preliminary ruling procedure, art. 267 TFEU
- sanctions and responsibility in case of violation.

competences: principle of conferral

- Art. 4(1) + Art. 5(2) TEU
content:
- the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein'
- 'competences not conferred upon the Union in the treaties remain with the Member States'
ratio legis:
respecting MS sovereignty
conditions:
demands legal basis (goal of the legal act) but can often legal bases are broadly framed (eg. Art. 114) or court can interpret a generous interpretation

principle of conferral simple

MS have their own competences unless the EU has conferred these competences. The EU can only act on competences conferred on them.

The EU cannot create new competences for itself.

But there is a bit of flexibility in the EU competences, they adopt a wide reading of competences of the EU - more extensive.

types of EU competences

- Exclusive
- Shared
- Complementary
- CFSP

exclusive competences

Article 3 TFEU:
- MS can no longer adopt legislation on these areas.
- They can only adopt legislation on the implementation of EU law.

Shared competences

Article 4 TFEU:
- Both EU and MS can legislate, principle of presumption
- MS can no longer act once the EU has made legislation on an area.

Complementary competences

Article 6 TFEU:
- EU cannot harmonize but can support and supplement and coordinate the MS action but cannot rule/legislate.
- EU can provide common frameworks.
- EU does not have harmonizing powers

CFSP

Common Foreign and Security Policy of the EU

Horizontal competences

exist between European Union bodies

Vertical competences

between MS and the European Union bodies

implied competences

idk

issue with principle of conferral

Sometimes conferral does not ensure the effectiveness of EU law. Principle of conferral is more contested and has a lot of grey areas.

principle of subsidiarity (structural principle)

article 5(3) TEU + protocal no. 2:
content:
- in areas of shared competence
principle whereby the EU does not take action, unless it is more effective than action taken by MS, or at a regional or local level.

ratio legis

taking decisions close to the citizen (democracy)

procedural aspects of the principle of subsidiarity

- political control: protocol 2 (national parliaments)
- judicial control

how can MS go against EU decisions regarding the principle of subsidiarity

National parliaments can issue reasoned opinions within two weeks if they do not agree with the Commission, this may force the Commission to reconsider. There is also judicial control by the court to check if it fits the principle of subsidiarity.

principle of proportionality

article 5(4) TEU:
content:
the EU will only take the action it needs to achieve its aim, and no more.
rationale:
rule of law and limiting power

conditions under which it can be pursued:
1) appropriateness: measure is adequate to its (legitimate) goal
2) Necessity: no alternative measures available that would be less restrictive, but as efficient
3) Proportionality sensu stricto: balancing

how to establish whether the EU can legislate?

1. Check EU competences, check Articles 4-6 of TFEU
2. Find legal basis in Part 3 of TFEU

concept of legal basis

legal basis \= a specific provision that confers power upon the EU to adopt an act. It is more specific than a competence. Allows the EU to use another competence to act in a domain where it has weak power.

the part of one of the EU's treaties (most commonly in the Treaty on the Functioning of the European Union) that gives the EU the legal right to act.

what to do if no legal basis fits?
options

specific:
Exclusive & shared competences, complementary competences.
114 TFEU:
Subsidiary legal basis for internal market, only measures necessary for the functioning of internal market. (Whenever there is a need to implement internal market measures, art. 114 can be used as it is quite broad.)
352 TFEU:
Subsidiary legal basis for all treaty objectives, unanimity required in the Council. If there is no link with the internal market, art. 352 can be used. implements legislation through unanimity in the Council under the pursual of the aims of the treaties, under which the EU institutions do not have the power to act. Tension between conferral and this residual competence - but this is outweighed by the unanimity in the Council, each MS can have a veto in this situation.

types of legislative procedures

1) ordinary legislative procedure Art. 289(1) TFEU --\> used when nothing is specified
2) special legislative procedure Art. 289(2) --\> specified in legal basis P3 TFEU

- Legislative procedure is determined by the legal basis for a particular act.

ordinary legislative procedure

- The Council and EP have more or less the same power and are on the same footing.
- previously called co-decision procedure.

OLP Steps

- The Council (241 TFEU) and EuParl (255 TFEU) can initiate the initiative - but the Council decides if they move forward with it. No one else can formally initiate new legislation.

- The EP can either approve or amend the proposal.
The first reading is by the Parliament, they can adopt the Commission's proposal or amend it.
- Then, there is the first reading in the Council, they can accept the EP's position, in which the proposal is adopted or they can amend the EP's position and return the proposal to the EP for a second reading.
- The second reading in parliament examines the Council's proposal and approves it (adopted) or rejects it à procedure is ended and nothing is adopted; or it can propose amendments and returns it to the Council for a second reading.
- Then, second reading in Council, they either approve all of the EP's amendments and act is adopted or if rejected this convenes the Conciliation Committee - they try to reach a joint agreement on a joint text. Then this is forwarded to the EP and Council for 3rd reading.

OLP - Publication of the act

done after approval by EP and Council. The law needs to be published for it to come into effect, which is important. The entry into force of an act comes from the moment of publication. If the act is not published, it cannot be in force. This has to do with democratic transparency.

OLP necessary majorities

- EP - needs a simple majority (

special legislative procedure

certain legislative proposals require a consultation procedure or a consent procedure. The consultation procedure.

Consultation procedure:
- Consultative function of EuParl
- Necessary opinion, but not binding
- EP is consulted, it is mandatory but their opinion can be disregarded.

Consent Procedure:
- Only one reading
- EP cannot adopt amendments but adopt or reject the measure in question
- No amendments by EP


Normally the Council has more weight than the EP in adopting the legislation, so special legislative procedure is used to make it more even when national interests are at stake.

protocol 2 - Early Warning Mechanism

Protocol No.2 on the application of the principles of subsidiarity and proportionality. It is used to get the input of national parliaments and get reasoned opinions from them.

- National parliaments are consulted on a draft legislative act
- 8 weeks for reasoned opinion:
o Individual opinion (2 per MS)
o Collective opinion (1/3 opinions)
o Special legislative opinion (\>50% of opinions)
- No automatic blockage of the legislative procedure

european citizens' initiative

Allows EU citizens to call on the Commission to propose legislation by collecting 1 million signatures in 12 months

Stages of European Citizens' Initiative:

- Citizens Committee
- Registration (àadmissibility, checking the requirements of the MS, at least 7 citizens from 7 MS - it has to be legally feasible and not exceed the competences of the EU)
- Verification
- Submission of the initiative to the Commission
- Examination, public hearing in the EP and answer by the Commission

admissibility - European Citizens' initiative

- Citizens' committee (7 citizens of 7 MS)
- Proposal not manifestly outside of EU competences
- Not manifestly abusive, frivolous or vexations
- Not manifestly contrary to the EU values as set out in Article 2 TEU
- «Positive» proposal - creation/adoption of a new EU law, but not non-adoption

collecting statements of support

- 1 million signatures in 12 months
- Minimum number of signatures from at least 7 MS

structural principles of EU law

- principle of direct effect
- principle of supremacy/primacy
- Principle of sincere cooperation
- Principle of institutional autonomy
- Transparency and access to documents

+ conferral, subsidiarity and proportionality.

principle of direct effect

Content:
Union law may confer rights on individuals which the courts of MS are bound to recognize and enforce. E.G. Regulations. Individuals can go to court for this and MS are forced to recognize this.
Conditions:
- Clear
- Unconditional
- Containing no reservation on the part of the MS - the MS has not opted out.
- Not dependent on any national implementing measure

Legal basis:
Judge made rule - CJEU. Van Gend en Loos

Rationale:
Uniform and effective application of EU law.

principle of supremacy/primacy

Content:
- Where a conflict arises between EU law and national law, EU law always prevails.

Conditions:
- Priority in application (\=/ annulment)
- Applies to any national law (CJEU, Tanja Kreil)
- Any national court can apply it (CJEU, Simmenthal)

Legal Basis:
CJEU, Flaminio Costa v ENEL (1964) Case 6/64 + Declaration no.17
Reform of the national electricity system, nationalization of electricity. Costa refused to pay this new nationalized electricity bill, they argued that it breaches EU competition law. Referred for preliminary ruling.

Rationale:
Uniform and effective application of EU law.

BUT this does not mean that national law is invalid, national law is only valid in its jurisdiction on its own national law. According to the principle of supremacy/primacy, EU law is prevails and national law remains but only in the books - national law remains in the corner. So, if one day an EU law disappears, then the national law can come into force. This applies to any national law including constitutional law.

principle of sincere/loyal cooperation

Content:
The EU institutions and the Member States should cooperate with each other in good faith.
- Positive obligation
- Negative obligation
Legal basis:
- Art. 13 (2) TEU - Institution

principle of institutional autonomy

Content:
The EU institutions can freely organize their functioning within the assigned competences

Legal basis:
Art.4 (3) TEU + Judge-made rule (CJEU, 208/80, Lord Bruce of Donington)

Rationale:
Separation of powers («checks and balances»)

transparency and access to documents

Content:
Widest possible access to acts of EU institutions óNon-absolute: data protection, public interest

Legal basis:
Art.1 (2) + 11 (3) TEU - transparencyArt.15 TFEU + 42 CFREU - access to documentsRegulation 1049/2001 on Access to documents

Rationale:
Democracy, transparency, accountability

European Obmudsman, art. 228 TFEU - Impartial organ:
- Complaints about maladministration against EU institutions
- Submitted by citizens or residents in EU MS or by companies and associations registered in the EU

role of court of justice

job: interpretation and application of EU law
seat: luxembourg

composed of 2 jurisdictions:
1) Court of Justice (1 judge per MS)
2) General Court (2 judges per MS)

working language: french

functions of CJEU

1. Guarantee of uniform interpretation and effective application of EU law (preliminary ruling - 267 TFEU)
2. Control of the respect of their obligations by the MS (infringement - 258 & 259 TFEU)
3. Review of legality and norms of EU law (annulment - 263 TFEU)

CJEU & preliminary ruling procedure

- Guarantee of uniform interpretation
- Possibility for individuals to invoke violations of EU law

National court asks CJEU for opinion on how to administer EU law.

Preliminary Ruling Procedure Stages:

- Ratio legis: Uniform interpretation and application (267 TFEU)
- Preliminary ruling questions concerning:
1) Interpretation of EU law
2) Validity of EU law
- Initiated by any national judge (obligation for last-instance courts)
- CJEU responds with a judgement
- National judge is bound to apply it when
- Also other EU judges are bound if confronted with the same question
- Intervening parties: EU institutions and Member States

Once the CJEU gives its ruling it must be implemented.

summary preliminary ruling procedure

when a national judge is unsure how to interpret EU law, so they go to the CJEU, the judgement by the CJEU becomes applicable to all MS.

mechanisms of sanctioning violation of EU law:

primary - infringement proceedings before the CJE
secondary - state responsibility before national courts.

positive integration of EU law

- Harmonization
- Article 5 TEU à Article 114 TFEU
- Harmonizing national law through EU law

negative integration of EU law

- Free movement of goods, services, capital, establishment and persons
- Removing barriers/restrictions (national laws) by prohibiting them
o Article 30 and 34 TFEU

Competition law:
Prohibition of cartels, abuse of market power and state aid

Example of negative integration:
abolish the rules that hinder free movement or the creation of an internal market. Anything that is incompatible with the four freedoms is removed.

positive integration - approaches to integration

1) total harmonisation:
a. Predominant in early stages of EU integration
b. Exhaustive regulation at EU level
c. Pre-empts MS activity
d. Regulation

EU competences in the Internal Market

- specific for each of the market freedoms
- subsidiarity general competence: Article 114 TFEU

Article 114 TFEU

- Residual competence
- Ordinary legislative procedure (since SEA)
- "Measures" - discretion as to type of secondary law
- Beyond approximation: also creation of new bodies and obligations for individuals
ØCJEU,
ØENISA, 2006
ØCJEU, ESMA, 2014
- Excluded from the scope (114 (2) TFEU)
ØFiscal provisions
ØFree movement of persons
ØRights and interests of employed persons

if we do not find a legal bases...

we can go to Art. 114 TFEU for internal market (majority), if that does not work, go to Art. 352 for any Treaty goals (unanimity).

case of tobacco advertising and Art. 114 TFEU

EU has been trying to ban advertising for a while of tobacco, but Germany opposed this. But Germany was outvoted in the Council and the directive was approved, so they challenged it in front of the court.
It was adopted under Art. 114 TFEU (legal basis).

Germany argued that this was a public health measure and not an internal market areas. The court struck down the directive for using the wrong legal basis - this is very rare.

The court believed that this was beyond the scope of Art. 114 TFEU. Exceptional case.

4 market freedoms

1. Free movement of goods
2. Free movement of services
3. Free movement of persons
4. Free movement of capital

Article 26 TFEU : Goods, services, persons, capital.
Sometimes market freedoms overlap

Goods

- Articles 30-6 TFEU
- Goods \= products, o 'products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions' (Commission v Italy (1968))
- interferences:
1) Customs duties on imports and exports and charges having equivalent effect (CEE) Articles 28(1) and 30 TFEU) - no charges because of crossing a border of an MS e.g. truck taxes when passing through.
2) Quantitative restrictions and measures having equivalent effect (MEE)

-\> Imports (34 TFEU)
-\> Exports (36 TFEU)

'measure having equivalent effect' (MEE) - Free movement of goods

«All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions»
This is a broad definition, anything that represents an actual or possible obstacle to trade must be gone.

principle of mutual recognition (if no harmonisation) - Free movement of goods

CJEU, Cassis de Dijon, case 120/78, 20 February 1979:
the sale of goods lawfully produced and marketed in one MS may not be restricted in another MS.

possible justifications for Art. 34 and 35 TFEU - Free movement of Goods

· Art. 36 TFEU - discriminatory measures
· CJEU - non-discriminatory measures

Art. 36 TFEU - discriminatory measures
Free movement of goods

- public morality, public policy or public security;
- the protection of health and life of humans, animals or plants;
- the protection of national treasures
- possessing artistic, historic or archaeological value;

CJEU - non-discriminatory measures
Free movement of goods

- Efficiency of fiscal control
- Protection of consumers
- Protection of environment
- ... - if they use any of these, they have to prove that the measure is proportionate and the least restricting to do its job.

Can be enforced if non-discriminatory.

freedom to provide services - types

1) freedom of establishment
2) free movement of services

freedom of establishment:

- Exercise of an economic activity
- on a stable and continuous basis
- in another MS

freedom of establishment - scope

Natural or legal persons managing undertaking in another MS (CJEU, Stauffer, 2006):
- Permanent presence
- Pursuit of economic activity
- Right to set up agencies, branches or subsidiaries in another MS (secondary establishment)
- Includes cross-border mergers

free movement of services

- Offer and provide services
- on a temporary basis
- in another country, while remaining established in the country of origin

exceptions of the free movement of services

- exercise of public authority (Art. 51 TFEU)e.g. Notary public: CJEU, Commission v Belgium, C-47/08, 24 May 2011

- production or trade in arms (Art. 346(1b) TFEU)

justifications - freedom to provide services

· Justifications - Art. 52 TFEU, 61 TFEU (\=\> 52 TFEU):

- Public order, public security and public health
- As long as restrictions not abolished, no discrimination on nationality and residence

Directive 2006/123/CE - «services directive» or «Bolkestein directive»
Art. 56 TFEU - legal basis - restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.

Aim:
digLiberalization of access to services in the EU

digital single market

commission policy since 2015:
- access to online products and services
- conditions for digital networks and services to grow
- growth of the European digital economy

implementation;
- 35 legislative proposals
- Roaming charges (Regulation (EU) 2017/920)
- Privacy and electronic communications directive 2002/58/EC
- GDPR (2016/679)

free movement of persons

- Articles 45 - 48 TFEU (free movement of workers)
- Articles 20-25 TFEU (EU citizenship)

At the beginning, persons were only economically active - employees of a company.
Persons now, changed with EU citizenship à shift in definition: workers, job-seekers, economically inactive, semi-economically active, citizen

free movement of workers: Art. 45-48 TFEU

- Abolition of any discrimination based on nationality between workers of the MSs
- As regards employment, remuneration and other conditions of work and employment

EXAMPLE: Content (CJEU, C-415/93, Union royale belge des sociétés de football association ASBL v Bosman (1995)): concerns the rules of football teams, said that there was a minimum number of each football team had to be from the MS itself. BUT - the court said that this was an obstacle to the free movement of workers - discrimination based on nationality.


Discrimination cannot take place based on nationality, but rather other requirement such as language. Employers can make a specific language requirement. e.g. speaking Dutch

EU Citizens: Articles 20-25 TFEU

-\> freely move and settle in another MS but this only lasts for 3 months)

Content (EU citizenship Directive 2004/38/CE):-
Right to move and settle freely in EU territory
- Without any conditions and permits for the first 3 months (unconditional for 3 months)
- More than 3 months: employment contract or sufficient resources + insurance coverage, so that they do not become a burden to the welfare state à persons of independent means.
- Right to family reunification (personal scope extended to family members), it is quite broad - doesn't only include descendants but also partner, can also go upwards. e.g. Case: Ruiz Zambrano, 2011

free movement of persons - job seekers

Content: stay of 6 months without further conditions (CJEU, Antonissen, C-292/89)

case law on social benefits - free movement of persons in MS

- Court was initially generous (C-184/99 Grzelzyck, C-224/98 D'Hoop)
- Recently more restrictive (CJEU, Iida, C-40/11; C-333/13, Dano)

Initially, the court was quite generous and allowed for non-economically active persons to apply for social benefits. BUT - with the euro crisis this changed and it became more restricted.

justifications for restrictions on the free movement of persons

- Public order, public security, public health (Art. 45(3) TFEU)
- Exception: Public sector (Art. 45 (4) TFEU) (restrictive interpretation)
- Transitional measures with enlargement (HR - 07.2020)

free movement of persons - posted workers

Posted workers - employed by their employer, just in another MS.
Idea that workers from a lower paying MS would be favoured in higher paying MS as it would be cheaper, so they would always use foreign MS companies so it is less costly for them.

Directive (EU) 2018/957 (Posted workers directive):
- Entered into force on July 29, 2018
- Incorporated into national law by the Member States until July 30, 2020

Idea of preventing social dumping on MS, and keeping the competitiveness of the internal market.

free movement of capital and payments

Content - prohibition of all restrictions ono capital movements and payments.
Scope of territorial application: intra-EU and EU-third countries.

restrictions on the free movement of capital and payments

- Direct investments to or from third countries - 64 TFEU
- Regulations predating 1993 - 64(1) TFEU
- Temporary safeguard measures with regard to third countries (embargo/sanctions) - 66 TFEU
- Further justifications 65 TFEU

market freedom - judicial examination:
examining the violation of market freedoms

1. Scope of application (personal, substantial (one of the four freedoms involved?), territorial (cross-border?))

2. (Existence of an) interference with the market freedom

3. Justification ?
Yes, if the measure is interfering with the market freedom:
a. Pursues a legitimate aim?
list of legitimate aims in the TFEU + Case law (does the national measure interfere with the market freedom?)
b. Is it necessary to achieve the aim?
(Are there less restrictive measures that would better suit?)
c. Is it proportionate?
stricto sensu (how big is the interference with the fundamental market freedom? If you do not take the measure, is there a risk?)

internal situations - market freedoms

Internal situations - no crossing borders into other MS to provide services/good -\> EU law doesn't apply only national law.

In a cross-border element situation - market freedoms

EU law applies, what counts in the origin of the goods and the place that they are sold.

free movement of goods dimensions

1. Customs union
2. Definition of goods
3. Customs duties and charges of equivalent effect
4. Quantitative restrictions and measures of equivalent effect
5. Justifications

customs union - external dimension

External dimension:•
- Common custom tariff (31 TFEU)
- Common commercial policy (207 TFEU)

customs union - internal dimension

- Prohibition of custom duties or charges of equivalent effect (CEE) (30 TFEU)
- Prohibition of quantitative restrictions or measures of equivalent effect (MEE) (34-36 TFEU)
- Prohibition of internal discriminatory taxation (110 TFEU)

customs union of the EU

One tariff for one market.
Separation between the internal market and the global market.

defining goods

- Originating in the EU (28(2) TFEU)
- Foreign products once they cleared customs (29 TFEU)
- Trader irrelevant
- Goods \= products -\> 'products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions' (Commission v Italy (1968))
- Goods

customs duties and charges ofo equivalent effect

Custom duties - nowadays rare, e.g.Van Gend en Loos

CEEs - CJEU, Diamonds, 1969
· Even a small pecuniary charge (≠ de minimis rule)
· By reason of crossing the frontier
· Not custom duty sensu stricto
· Even if not discriminatory nor protectionist
Also internal border (CJEU, Lancry, 1994)

Charges having equivalent effect, represents an obstacle in the similar way to a customs duty. Produces the same effect as a customs duty.