European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

According to Article 28 TFEU, the principle of free movement applies not only to products originating in Member States, but also to products coming from third countries which are in free circulation in Member States .
The concept of Union goods is defined in the Union Customs Code (Regulation No 952/2013 of 9 October 2013). Goods have their origin in a Member State where they were wholly obtained  …

Originating products and products in free circulation

According to Article 28 TFEU, the principle of free movement applies not only to products originating in Member States, but also to products coming from third countries which are in free circulation in Member States .

The concept of Union goods is defined in the Union Customs Code (Regulation No 952/2013 of 9 October 2013). Goods have their origin in a Member State where they were wholly obtained in that State. Goods of which the production involves more than one country or territory are deemed to originate in the country or territory where they underwent their last substantial transformation (Art. 60 of Customs Code). Where none of those qualities exist, the goods are deemed to be non-Union goods . 

To circulate freely within the Union, non-Union goods must be placed under release for free circulation (Art. 201 of Customs Code). The release for free circulation involves the completion of import formalities as provided and the payment of customs duties and charges having equivalent effect which are payable, without any total or partial relief of such duties or charges (Art. 29 TFEU; Article 201 of Customs Code). The product must have been subject to the administrative clearance procedure when imported within the Union (classification in the tariff nomenclature, identification of its origin, calculation of its customs value and fixing of duties due). The mere physical introduction of products into the customs territory of the European Union is not sufficient to characterize an initial marketing in the Union since the importer may prefer the option of external transit of non-Union goods or customs warehousing to the release for free circulation . The traditional clearance procedure consists, for the importer, in making a declaration for release for free circulation in a competent office or, if authorized, in his own premises or in other locations designated or approved by the customs authorities through a domiciliation procedure. There is also a simplified procedure consisting in just filling in a single declaration.

Goods released for free circulation into the EU benefit from the rule of equality of treatment, which allows them to be assimilated to products originating in the Member States, in particular in case of re-import to another Member State, regardless of their initial origin . Goods imported from a non-Member country have the same advantages as products originating in the European Union and can no longer be the subject of new checks or new customs requirements within the Union. Any administrative process which establishes a different system of control between products originating in the European Union and those originating in non-member countries is unlawful.

The full and complete application of the assimilation principle presumes, however, the existence of European rules harmonizing the conditions governing the marketing of the products in free circulation. In the absence of such rules, a Member State may prevent products from being released for free circulation where they do not satisfy the national marketing conditions .

Case 29/75 Kaufhof AG v Commission [1976] ECR 431, LawLex200900001821JBJ.

Article 5 of the Union Customs Code defines Union goods as goods wholly obtained in the customs territory of the Union and not incorporating goods imported from countries or territories outside the customs territory of the Union. Goods wholly obtained in the Union from goods placed under the transit procedure, the storage procedure, the temporary admission procedure or the inward-processing procedure have not the status of Union goods. The provision assimilates to Union goods, goods in free circulation, goods obtained in the Union territory from goods released for free circulation. By default, non-Union goods are those not referred to in that list, or those which have lost their customs status as Union goods.

Case C-405/03 Class International [2005] ECR I-8735, LawLex200900000710JBJ: as long as the importer of goods from non-Member countries has not preferred the option of release for free circulation to the other customs systems of external transit or customs warehousing, the mere physical introduction of those goods into the territory of the European Union does not amount to initial marketing on that territory such as exhausting the rights of the proprietor of the trade-mark rights.

Case 119/78 Peureux [1979] ECR 975, LawLex200900001506JBJ.

Case C-296/00 Expo Casa Manta [2002] ECR I-4657, LawLex200900001427JBJ.

European Business Law

12. Originating products and products in free circulation

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Les décisions de justice citées dans ce paragraphe :

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12. Originating products and products in free circulation

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise