Posts Tagged Registration

Cheers to that! The CJEU on excise duties, alcohol, packaging and regulatory autonomy in Valev Visnapuu.

Postscript 10 December 2015 For a similar exercise, see Sharpston AG in C-472/14 Canadian Oil.

Less is sometimes more so I shall not attempt to summarise all issues in Case C-198/14 Valev Visnapuu. The case makes for sometimes condensed reading however it perfectly illustrates the way to go about dealing with obstacles to trade put in place for environmental, public health or, as in this case, both reasons.

Mr Visnapuu essentially forum shops Estonia’s lower prices on alcohol by offering Finnish clients home delivery of alcoholic beverages purchased there. No declaration of import is made to Finish customs and excise, thereby circumventing (accusation of course is that this is illegal) a variety of excise duties imposed for public health and environmental reasons, as well as a number of requirements relating to retail licenses and container requirements (essentially a deposit-return system) for beverages.

Confronted with a demand to settle various tax debts, as well as with a suspended prison sentence, Mr Visnapuu turns to EU law as his defence in a criminal proceeding. The CJEU then had to settle a variety of classic trade and environment /public health questions: whether the packaging and packaging waste Directive is exhaustive on the issue of deposit-return system (answer: no and hence the system additionally needs to be assessed vis-a-vis EU primary law: Article 34 ff TFEU or Article 110 TFEU); whether in the context of that Directive excise duties on packaging may be imposed (yes) and packaging integrated into a functioning return system exempt (yes; in the absence of indications that imported systems are less likely to enjoy the exemption); whether the relevant excise duties fall under Article 34 ff TFEU or Article 110 TFEU (answer: it is part of an internal system of taxation hence needs to be judged vis-a-vis Article 110 TFEU); and finally whether the retail licence requirement needs to be judged viz Article 34 or Article 37 TFEU (answer: mixed, given the various requirements at stake). Final judgment on proportionality is down to the Finnish courts.

Readers in need of a tipple would be advised to postpone until after reading the judgment. Again though the case shows that if one keeps a clear head, classic structures of applying EU law go a long way in untangling even complex matters of law and fact.

Geert.

 

 

 

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

Leave a comment

Size does matter. The European Chemicals Agency bans those who wrongly declare themselves small.

Under the European Union’s regime on chemicals (REACH), companies manufacturing or importing chemical substances have to notify considerable amounts of data to the European Chemicals Agency (ECHA). Under the general ‘no data, no market’ rule, those chemicals for which no appropriate risk assessment and risk management has been carried out, cannot be put on the market. What may seem a futile part of compliance – paying the correct registration fee – has now come back to haunt several companies.

ECHA’s machinery needs to be financed. Companies registering substances under REACH to that end pay a registration fee. Micro or small and medium sized enterprises (SMEs) receive a discount. Those incorrectly classifying themselves as small, have now had their comeuppance: ECHA has rejected their registrations, effectively meaning that the companies involved can no longer manufacture or import the substance above one ton per annum.

Lessons are clear. Firstly, one should always be careful with statements of size. Secondly, ECHA bites. It is one of only a few of the European Union’s Agencies which is truly ‘regulatory’ (also on issues of chemicals policy much more relevant than size).

Geert.

 

, , , , , , ,

Leave a comment

%d bloggers like this: