Free movement of goods is central to European Union law and of particular importance for the United Kingdom in light of Brexit (and therefore, Northern Ireland). European Union law prohibits financial and non-financial barriers to free movement of goods. Yesterday, the posts referred to the first set of financial barriers and the applicable law (arts 28-30 TFEU) in relation to the prohibition of customs duties and charges having equivalent effect (CEEs). Today, the post presents art 110 TFEU and the prohibition of discriminatory internal taxation.
Art 110 TFEU prohibits discriminatory internal taxation once goods have entered a member states. To be more precise, European Union law does not ban internal tax regimes (this part of a state’s fiscal SOVEREIGNTY). In other words, Genuine internal taxes which comply with art. 110 TFEU are not against European Union law.
A genuine internal tax means a general system of internal taxation applied systematically to domestic and imported products alike according to the same criteria irrespective of the origin of the products. Relevant case law: e.g. Capolongo Case 77/72BUT where an internal tax does not comply with this definition, it will be prohibited by Art 110.
In brief, an internal tax is unlawful if it discriminates against imported products or is protective of domestic products. Art. 110 TFEU is more intricate. A very brief introduction below.
Art 110(1) TFEU prohibits discriminatory taxation in respect of SIMILAR products. The tax may be DIRECTLY or INDIRECTLY discriminatory.
Art 110(2) TFEU, where goods are not similar, prohibits discriminatory taxation in respect of products IN COMPETITION.
The posts tomorrow and Friday will highlight the key elements referred to non-financial barriers. Thereafter, from Monday the posts centre the analysis on Northern Ireland; and how Brexit may affect positively their legal and political status.
Jorge Emilio Núñez
18th July 2018