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

The European rules, which are based on the principle of a customs union, apply to the whole customs territory of the Union . However, only intra-EU trade comes under Articles 34 et seq. TFEU since restrictions on imports from non-member countries are governed by the provisions on the common commercial policy or by unilateral or conventional measures taken by the Union on the basis of those provisi …

Customs territory of the Union

The European rules, which are based on the principle of a customs union, apply to the whole customs territory of the Union . However, only intra-EU trade comes under Articles 34 et seq. TFEU since restrictions on imports from non-member countries are governed by the provisions on the common commercial policy or by unilateral or conventional measures taken by the Union on the basis of those provisions . Furthermore, the prohibition does not concern purely national situations due to its limited scope of application.

In their dealings with non-member countries, the Member States must apply the common customs tariff and the common commercial policy . They cannot introduce on a unilateral basis national charges to duties payable under that common tariff . Only national fiscal and commercial disparities which existed on the date of introduction of the common customs tariff on 1 July 1968 remain applicable in the absence of intervention by the European institutions.

The TFEU provisions apply to the territories of the Member States as specified by Article 355 TFEU. In addition to the 28 Member States and their island possessions, the French Overseas Departments, the Azores, Madeira and the Canary Islands, the European territory includes the European territories for whose external relations a Member State is responsible , or those which, like Monaco, are considered by the Union Customs Code to be part of the Union customs territory . 

The Member States have agreed to associate with the Union the overseas countries and territories (Art. 198 TFEU). Those territories are part of the Customs Union: according to Article 30 TFEU, customs duties charged in these countries and territories on goods imported from another Member State or another of these countries and territories listed in Annex II of the TFEU  are prohibited, except where the levy of such duties meets the needs of their development and industrialization or, for duties of a fiscal nature, produces revenue for their budgets (Art. 200 TFEU). The derogation concerns both customs duties and taxes having an effect equivalent to customs duties . Furthermore, the introduction or modification of duties imposed on goods imported into the countries and territories must not give rise to any direct or indirect discrimination either in law or in fact between imports from the various Member States (Art. 200(5) TFEU).

Even though the overseas countries and territories are presented as being associated countries and territories having particular links with the European Union, they are in the same situation as non-member countries as regards the European Union . They benefit from the special scheme defined in Articles 198 to 203 TFEU, concerning the non-application of the general Treaty provisions failing any express reference thereto . Lastly, certain possessions of the Member States which do not appear in Annex II and therefore do not benefit from that special derogation scheme  are not subject to the customs rules and therefore to the free movement of goods.

Only originating products, i.e. those obtained in those territories or having undergone sufficient working or processing there, benefit from the exemption of customs duties and taxes having an equivalent effect in case of import . Derogations may however be adopted for non-originating products where the development of existing industries or the creation of new industries justifies them. The provisions relating to the definition of the concept of originating products within the meaning of Article 200(1) TFEU must be interpreted in the light of the fundamentally favorable approach of the Union towards the overseas countries and territories .

Pursuant to Article 349, the provisions of the TFEU apply to French overseas departments, Azores, Madeira and the Canary Islands. As for overseas countries and territories, the Council may adopt specific measures taking account of the worsening of the structural social and economic situation of these departments. Thus, exemptions from dock dues may be held lawful where they: apply without distinction to products imported into and produced in the overseas departments, cause the least possible disturbance to the functioning of the internal market, contribute to the promotion or maintenance of an economic and social activity in the overseas departments and are in line with an economic and social development strategy .

This territory includes the territory of the Member States, including their territorial waters, their inland maritime waters and their airspace, as well as certain territories situated outside the territory of the Member States, such as Monaco for France: - the territory of the kingdom of Belgium, - the territory of the Republic of Bulgaria, - the territory of the Czech Republic, - the territory of the Kingdom of Denmark, except the Faroe Islands and Greenland, - the territory of the Federal Republic of Germany, except the Island of Helgoland and the territory of Buesingen (Treaty of 23 November 1964 between the Federal Republic of Germany and the Swiss Confederation), - the territory of the Republic of Estonia, - the territory of Ireland, - the territory of the Hellenic Republic, - the territory of the Kingdom of Spain, except Ceuta and Melilla, - the territory of the French Republic, except overseas countries or territories to which the fourth part of the TFEU applies., - the territory of the Italian Republic, except the municipalities of Livigno and Campione d'Italia and the national waters of Lake Lugano which are between the bank and the political frontier of the area between Ponte Tresa and Porto Ceresio, - the territory of the Republic of Cyprus, in accordance with the provisions of the 2003 Act of Accession, - the territory of the Republic of Latvia, - the territory de of the Republic of Lithuania, - the territory of the Grand-Duchy of Luxembourg, - the territory of the Republic of Hungary, - the territory of Malta, - the territory of the Kingdom of the Netherlands in Europe, - the territory of the Republic of Austria, - the territory of the Republic of Poland, - the territory of the Portuguese Republic, - the territory of Romania, - the territory of the Republic of Slovenia, - the territory of the Slovak Republic, - the territory of the Republic of Finland, - the territory of the Kingdom of Sweden, - the territory of the United Kingdom of Great Britain and Northern Ireland and the Channel Islands and the Isle of Man.

Case 91/78 Hansen [1979] ECR 935, LawLex200900002017JBJ.

Ceuta and Melilla, Saint-Pierre and Miquelon, and Mayotte.

Case C-310/95 Road Air v Inspecteur der Invoerrechten en Accijnzen [1997] ECR I-2229, LawLex200900002168JBJ: Article 200(1) TFEU on products originating in overseas countries and territories, does not refer to imports of goods not originating in those countries but in free circulation there.

Case C-430/92 Netherlands v Commission [1994] ECR I-5197, LawLex200600002243JBJ.

Case C-212/96 Chevassus-Marche v Council régional de la Réunion [1998] ECR I-743, LawLex200900001202JBJ. Before, dock dues were classified as tax having an effect equivalent, although they were levied without distinction on the regions of the Member State concerned and the other Member States: Case C-163/90 Administration des douanes et droits indirects v Legros and others [1992] ECR I-4625, LawLex200900000643JBJ; Case C-363/93 Lancry and others v Direction générale des douanes and others [1994] ECR I-3957, LawLex200900000523JBJ.

Case C-126/94 Cadi Surgelés and others [1996] ECR I-5647, LawLex200900000464JBJ; Case C-363/93 Lancry and others v Direction générale des douanes and others [1994] ECR I-3957, LawLex200900000523JBJ: for a tax such as dock dues ('octroi de mer') that came into force in 1946 and to which an institutional duty of 1% was added in 1984, the Court held that keeping the same name is not sufficient to identify an existing basis.

Case 37/73 Sociaal Fonds voor de Diamantarbeiders v Indiamex and others [1973] ECR 1609, LawLex200900001960JBJ.

For an example, see T-195/01 Government of Gibraltar / Commission [2002] ECR II-2309, LawLex200500004932JBJ, which approves the application of the EU competition rules to Gibraltar, a European territory within the meaning of Article 355 TFEU; Case C-293/02, LawLex200900001417JBJ, which includes in a same group the territory of the United Kingdom of Great Britain and Northern Ireland, and the Channel Islands and the Isle of Man.

Case C-291/09 Francesco Guarnieri & Cie [2011] ECR I-2685, LawLex201100000889JBJ.

Greenland, - New Caledonia and Dependencies, - French Polynesia, - French Southern and Antarctic Territories, - Wallis and Futuna Islands, - Mayotte, - Saint Pierre and Miquelon, - Aruba, - Netherlands Antilles (Bonaire, Curaçao, Saba, Sint Eustatius, Sint Maarten), - Anguilla, - Caymans Islands, - Falkland Islands, - South Georgia and the South Sandwich Islands, - Montserrat, - Pitcairn, - Saint Helena and Dependencies, - British Antarctic Territory, - British Indian Ocean Territory, - Turks and Caicos Islands, - British Virgin Islands, - Bermuda.

Case C-260/90 Leplat v Territoire de la Polynésie française [1992] ECR I-643, LawLex200500006295JBJ: French Polynesia may levy customs duties and taxes having an effect equivalent on imports from the Member States, where those taxes meet the needs of its development and industrialization or produce revenue for its budget, and do not involve any discrimination between the Member States.

Case C-17/98 Emesa Sugar [2000] ECR I-675, LawLex200700001587JBJ; Case C-390/95 P Antillean Rice Mills and others [1999] ECR I-769, LawLex200700001907JBJ.

Case C-181/97, LawLex200700001802JBJ: the entry into a Member State of goods coming from the Netherlands Antilles cannot be categorized as an intra-EU transaction failing any express reference within the meaning of Article 355 TFEU.

European Business Law

17. Customs territory of the Union

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17. Customs territory of the Union

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