1. 1957: replacing seperate markets of individual MS to 1 single common market art 3 EC Four fundamental freedoms and fair competition.
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9. Questions 1 : Jurisdiction ? EEX Question 2 : Applicable law : Step 1 : Special treaty: CISG provides answer to conflict! Step 2 : ECO rules of reference (to nat. Law which will provide answers) Step 3 : national rules that deal with IPL Question 3 : Specific treaty that provides an immediate solution to a conflict between contracting parties
10. Dispute? 4 sources to look for answers : 1 : Contract : entails many conditions, o.a. delivery terms (incoterms) and payment terms (Directive on Payment Services Aim is to make cross-border payment as easy, efficient and secures domestic payments within a MS) 2 : General conditions: using these means that businesses do not have to negotiate every condition individually every time they make a contract who’s set of rules usually depends on market position of seller and buyer. 3 : CISG provisions are permissive. 4 : national rules and jurisdiction applying to contract: only if 1-3 do not provide the answer
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17. Financial barriers Case Co-frutta : art 25 EC is NOT applicable to an internal system of tax applied systematically to categories of products regardless of the origin of the product. amount to a discriminatory or protective internal taxation. E.g.: Greece has a value added tax system. A measure lays down an increased rate of 36% for goods mentioned in an annex. In this annex certain spirits are mentioned. Greece does not produce this spirits, whereas Spain does. Internal rule and no reference to origin. So no art 25 EC, but art 90 EC, because mounts to discriminatory measure. Custom duties or charges having equivalent effect prohibited (art 25/30 EC) Internal taxes: Allowed, unless discriminatory art 90
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20. Non-financial barriers Free movements of goods art 23/25 EC Principle of mutual recognition : Applied by the ECJ in the context of the evaluation of national measures, namely in the context of art 28 EC. Arguments: goods which fulfill the legal requirements of one MS (lawfully produced and marketed) must also be legally traded in another MS. Quantative restriciton or equivalent effect : case Masterfoods. Import Art 28/34 EC: Quantative restrictions or measures of equivalent effect prohibited Dasson ville
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30. More efficient channels from manufacturing plant to customer in the W-Eur. economies may help to prevent a shift to low-wage countries.
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Notas del editor
Free trade allows for specialization, specialization leads to comparative advantage, comparative advantage leads to economies of scale which maximize consumer welfare and ensure the most efficient, use of worldwide resources.
primary legislation (in form of prohibition) secondary legislation and common policies are all needed to ensure that business can overcome problems in cross-border trade , in the internal market.
EC instructs MS to abolish all obstacles to the freedom of movement gives European businesses the opportunity to sue national authorities (art 263 EC). Ad 1 : art 3 EC instructs MS to abolish all obstacles to the freedom of movement gives European businesses the opportunity to sue national authorities (art 263 EC). Ad 2: aim: - standardization of goods across the EU - setting higher standards for products and consumer safety. Problem = Regulation for products difficult because often national legislation would like to create own regulation. EU legislature has the authority to create a single market by using directives and regulations (art 288 EC)
2. Private law aspects of doing business in the common market Private law focusses on legal areas (e.g. contracts, ownership) mandatory & permissive law. Freedom for private parties. Public law deals with government authorities mostly mandatory. Problem arises? Is contract in accordance with both public and mandatory private law? does contract itself provide solution? Otherwise applicable permissive law. European law mostly influential in public law of MS ( e.g. preliminary questions ). EU also creates a lot of legislation in the area of private law, mostly to protect weaker party ( Pla-case ). Business involved in cross-border trade existence of different legal codes can be confusing. Currently no European code. CISG necessary in cases of private law problems most important contract for cross-border business Recently, the willingness to subject the interpretation of private agreements concluded under the national contract law of the States Parties to the European Convention on Human Rights and Fundamental Freedoms of 1950 (ECHR) in order to control their compatibility with the Convention has been clearly demonstrated by the European Court of Human Rights (ECtHR) in the Pla case8 Pla and Puncernau v. Andorra (2004), Reports 2004-VIII.
Zie blz. 80 Boom voor de verschillen+ blz. 287 e.v. Barents& B Free trade zone : agreement on free movement for e.g. goods between all participating states. They keep their external trade policy). Memberstates remove all impediments to free movements of goods among themselves, but each state retains its autonomy to regulate its trading relations with non-member states. Customs union : FTA + common custom tarrif for goods from non member states coming inside that area. The community gets the money from the customs. E.g. the Benelux, European Community. Common market : art 14 EC, European Community undisturbed competition, more then a FTA and CU. Four fundamental freedoms and undisturbed competition. Economic and monetary union : in principal there should be a single economic policy to hav a economic union, but we don’t have this. We have got a coordination of national economic policies baes on european guide. With the euro, we have a monetary union. From an economic union to political integration? Economic policy is something we have invested in those we have elected who will do the job for us. A constitutional system with seperate powers checks and balances do we have this on a European level? Full union: the complete unification of the economics involved and for a common policy on matters such as social security, income tax. De gemeenschap is nu aanbeland bij het vierde stadium en heeft de monetaire unie voltooid. De coördinatie van het economisch beleid en het tot stand brengen en handhaven van de interne markt zijn doorlopende processen.
Once 3rd country goods have legally entered the EU after paying the CCT where necessary, the situation changes. The goods are described as being in ‘free circulation’ which means that they now benefit from the same rights as goods originating in the EU.
Overizcht vuistregels art 28 EC: Het gaat om een verbod van art 28, waarop art 30 een uitzondering is die restrictief moet worden uitgelegd. er moeten 2 soorten maatregelen worden onderscheiden; de maatregelen met en de maatregelen zonder onderscheid. Maatregelen met onderscheid zijn altijd verboden, tenzij de uitzondering van art 30 EC van kracht is. maatregelen met onderscheid vallen alleen onder het verbod van art 28 indien zij gaan over producteisen. Als de maatregelen betrekking hebben op de verkoopmodaliteiten, geldt het verbod van art 28 EC (Keck) niet. art 28 houdt niet in dat maatrgelen zonder onderscheid op ingevoerde en nationale producten die verboden zijn. De maatrgelen mogen alleen niet op de ingevoerde goederen worden toegepast als het betrokken belang reeds beschermd is door het land van oorsprong. De landen dienen elkaars wetgeving te aanvaarden ( beginsel van wederzijdse erkenning ). op de laatste regel bestaan uitzonderingen als de wetgeving van het ingevoerde land wordt gedekt door art 30 EG. De wetgeving moet dan wel noodzakelijk en geschikt zijn om bepaalde algemene belangen te beschermen. Examples MEE’s: Strawberries have to be packaged in boxes of 500 gr. demands to the word ‘karnemelk’ (butter milk) demands to alcehol controls. prohibition to rugs made by children.
Blz. 93 e.v. boom
A customs duty is a charge, determined on the basis of a tariff, specifying the rate of duty to be paid by the importance to the host state. Custom duties are prohibited because they are protectionist: they make the imported goods more expensive then the rival domestic product. The treaty also prohibits charges having equivalent effect to customs duties, thereby preventing MS from circumventing the prohibition on custom duties by dressing up the charge as something else. They’ve got the same effect upon the free movement of goods as customs duties. Any pecuniary charge, however smalll and whatever its designation and mode of application, the Court is likely to consider it a CEE, which is imposed unilaterally on domestic or foreign goods by reason of fact that they cross a frontier, consitute a charge having equivalent effect.
Ad 2: Four conditions: They do not exceed the actual costs of the inspection, in connection with which they are charged. the inspections aer obligatory and uniform for all the products concerned in the community. They are prescribed by community law in the general interest of the community. they promote the free movement of goods, in particular by neutralizing obstacles which could arise form unilateral measures of inspection adopted in accordance with art 30 EC treaty. Ad 3: if the charge relates to a general system of internal dues applied systematically and in accordance with the same criteria to domestic products and imported products alike then the legality of the charge falls to be considered under art 90 and not art 25 because art 25 and 90 are mutually exclusive.
Masterfoods: masterfoods, the producers of grondiose chocolate bars, seeks to start a new campaign promoting grondiose. For this purpose it has increased the size of the chocolate bar by more or less 25% and has designed a new wrapping which clearly states that Grondiose now includes 25% more for the same price. Masterfoods is told by the Dutch authorities that according to the Dutch act on Consumer protection the use of such packaging is misleading and thus prohibited. Masterfoods wants to know wether the Dutch law is in contradiction with Community law. Would the legal assesment be different if the Dutch law ‘only’ prohibited advertisement billboards to that effect? Ad 1: breach 28 EC? is this a quantative restriction (QR) on imports? No, it is not aimed at regulating quantaties, but protecting consumers of misleading. But see Dassonville formula: indirect and potentially having an equivalent effect to a QR. As a result of the regulation masterfoods has to change the packaging for at least one country it now indirectly and potentially hinders intrastate trade. They have to change the package of packages. No Keck exception. Ad 2: Keck does not apply. It is indeed not a c.s.a. but doesn’t apply equally to domestic and foreign products. Market acces is a problem, so art 28 EC is applicable. Then you ask if you can justify it. Distinguishing between measures which discriminate directly and indirectly. Distinctly applicable measures expressely threat imported goods les fabourably than domestic goods. By contrast, indistinclty applicable measures appear on their face to treat domestic and imported goods alike, but in fact disadvantage imported goods by requiring them to satisfy an additional set of rules before they can be sold on the host state market.. Distinctly appl. Measures include those which place conditions on imported goods only, or demand higher standsrs of imports then of domestic products, or they can concern national rules limiting channels of distribution, or they can involve national rules which give preference to or an advantage for domestic products. See ‘Buy Irish and Origin Marking cases. Inditcations of provenance and designationsof origin are lawfully only where the product genuinely has distinuishing qualities and chararecteristics which are due to the fact that it originated in a specific geographich area. Mutual recognistion is relevant here because it means that goods lasfully produced and marketed in one MS can be sold in another MS without furter restriction. In other words, owing to mutual recognition indistinctly appl.measures which prevent goods lawfully produced in State A from being sold in the market in State B constitute a prima facie breach of art 28. however if the host state B’s rules can be justified by reference to one of the mandatory requirements (or art 30) and the steps taken are proportionate, then there is no breach of art 28 and the national interest takes the precedence over the free movement of goods.
QR’s have the most damaging effect on interstate trade breach of art 28 and MS can justify their conduct only by reference to one of the art 30 derogations. Similarly, the Treaty provided that MEE’s could also be saved only by reference to art 30, although the Court has developed additional justifications known as ‘mandatory requirements’, to save certain types of MEE’s. the treaty allow national measures to take precedence over the free movement of goods wheere they serve important interests recognized by the community als valuable, provided that the national measures are proportionate and do not constitute a means of arbitrary discriminator and disguised restriction on trade between MS. But be aware only in the abscence of harmonization MS remain free to invoke the derogations. Non-exhaustive list of mandatory requirements to justify certain MEE’s. QR’s however, bcan be saved ONLY by reference to art 30 derogations.
The Court has imposed two contraints on the MS’s freedom to invoke the art 30 derogations: Since art 30 constitutes a derogation from the basic rule of free movements of goods, it has to be interpreted strictly. The derogation cannot be used to serve economic objectives.
Blz. 93 e.v. boom Openbare zedelijkheid: import van pornografische artikelen naar het VK werd verboden (zaak Henn en Darby), but then it is not allowed that those products are manufactured in that country. If it does, then no derogations based on public morality. Openbare orde en veiligheid: de vitale belangen van de staat. Olieverwerkende bedrijven moesten een bepaalde hoeveelheid oliekopen van de Ierse staatsraffinaderij. Dit beperkte de import maar was noodzakelijk om de raffinaderij draaiende te houden. Volgens de Ierse regereing vereiste de openbare veiligheid dat eht land minstens een olieraffinaderij behield om niet volledig afhankelijk te owrden van buitenlandse aanvoer. Gezondeheid en leven van persoon, dieren of planten: de Nederlandse regering weerde de import van producten waaraan vitaminen waren toegevoegd, omdat dit slecht voor de gezondheid zou zijn. De wetenschappelijke meningen hierover liepen uiteen, maar de Nederlandse zienswijze was een redelijke waardoor het Hof het toestond. Nationaal artistiek historisch en archeologisch bezit: een verbod op het uitvoeren van kunstschatten is toegestaan als het verbod nodig is om cultureel of wetenschappelijk verlies voor het land te verkomen. Strikte uitzonderingen: Geen ‘willekeurige discriminatie (art 30) ‘ niet waar er geharmoniseerd is.
Eastern Europe countries and emerging countries : (Brazil, Russia, India and China)
http://actrav.itcilo.org/actrav-english/telearn/global/ilo/seura/ifcemer.htm How to maintain a competitive edge for European enterprises? continous innovation. (However, many contraints e.g. financial). If Europe is to become the world’s most competitive knowledge-based economy, a strong and competitive manufactoring sector is necessary. 2 weaknesses of European manufacturing: Low productivity growth Insufficient innovations (strengths: leading-edge research capabilities) The essential difference is that in a knowledge economy, knowledge is a product, while in a knowledge-based economy, knowledge is a tool. This difference is not yet well distinguished in the subject matter literature. They both are strongly interdisciplinary, involving economists, computer scientists, engineers, mathematicians, chemists and physicists, as well as cognitivists, psychologists and sociologists. http://en.wikipedia.org/wiki/Knowledge-based_economy
http://en.wikipedia.org/wiki/Manufacturing Threats to enterprises Increased competition (difficult to maintain marketshares and revenues). Individual countries are reluctant to give up their quality control system in favour of a European standard. Possible responses to threats are: Focussing on hi-tech and advanced production technologies Expansion of skilled workforce in Europe Ad 1: although the EU needs to facilitate change by passing legislation and allocationg funds, to stimulate adaptation and innovation, the responsibility for change lies with business themselves. In order to benefit from EU policies and investment, the manufacturing sector needs to change: Move from a resource-based to a low-carbon knowledge based model. Industry need to move from mono-disciplinary to multi-competence and multi-disciplinary innovation through collaboration across sectors and national borders. Production will move from the macro scale to the mico and nano scales (e.g. medicine, electronics and energy production).
Factors for succesful exporting are: Commitment by the company’s management. An exporting approach founded on a strong skills base. Good marketing and information communication system. Production capacity and capability, product superiority, competitive pricing. Effective market research. An effective national export policy. Difficulties facing exporting for companies : Stringent administrative regulations Costs of appropriate human resources. Main obstacle for SME’s to import are : lack of knowledge of foreign markets Import tariffs Lack of capital Export of goods can be increased by: Innovation Ad 1: enterprises active abroad meet new competitors, new ideas and challenges. incentives to innovate further, in order to stay ahead. 2. Communicatons skills and Ad 2: business is being lost to European enterprises due to language skills. 3. Simplification and harmonization of regulations Ad 3: even with the customs union, with a common external tariff and international free movement, the differences between MS are significant. Simplification of im- and export regulations by individual MS may reduce those differences.
European (international) market research important for developing a framework for making important strategic marketing decisions about a business’s international operations. The business needs to gather information that is accurate, timely and relevant. In the face of the cultural, economic and/or legal contraints that may exist in another country. Choice of any strategy involves a trade-off between several factors : investment(costs), Knowledge of the foreign market, Profitability, (quality) control of the marketing and sales activities, and Short vs. long-term commitment. Once target country selected writing a strategic and operational marketing plan. A practical and efficient way = summarizing the external (market) and internal (company) factors in a SWOT analysis and creating a SWOT matrix. The marketer’s formula for marketing and selling products is the 4 ‘P’s: 1. product, 2. price, 3. place and 4. promotion
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