EU law. tax regulation.

Standard

Question 2 Articles 1 and 2 of the local tax regulation on satellite dishes adopted by the Liverton City Council (LCC) in 2014 (‘the tax regulation’) read as follows: (1) an annual tax on satellite dishes is hereby introduced; (2) the rate of the tax is set at £300 per satellite dish. Mr Bellamy, a Liverton resident lodged a complaint with the LCC against the satellite dish tax asking to be exempted from it. LCC refuse Mr Bellamy’s request for an exemption and so, he starts judicial review proceedings. He argues that the tax results in a restriction on the freedom to receive television programmes coming from other Member States which is contrary to European law and especially free movement of services. Advise Mr Bellamy.

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Mr Bellamy could argue that this is a restriction on the freedom to provide services. This is against the TFEU (Maastricht) and the TEU (Rome). This tax could be said to be a market distortion. Local taxes are allowed but these are usually on incomes or property and not on goods. The council has not given any reason to justify what they are doing.

Judicial review is a process whereby a court reviews legislation to see that it is lawful.

Alpine Investments suggests this tax is allowed. In Alpine Investments BV B Minister van Financien the Netherlands was allowed to prevent cold calling of non professional investors to sell shares. This was to safeguard the reputation of the financial sector.

Omega v Bonn Police will also work for the defendants. In Omega the court found that Germany was allowed to ban a laser gun game that seemed realistic about killing people since it offended the German constitutional principle that human life has sanctity. This ruling prevented the sale of a British manufactured product.

Josemans v Burgermeister van Maastricht 2010. This concerns free movement of services in the EU. In this case the city banned foreigners buying cannabis. Josemans can a cafe that gave cannabis for free with coffee. The court ruled that Josemans could not rely on TFEU since selling marijuana was unlawful in the Netherlands but the law was abeyant. The city was trying to prevent the sale of drugs and the measure was proportionate to the legitimate aim pursued.

 

Liga Portuguese Fotbal Profisional. 2004.

This is not about free movement of goods it is about services. This is not an indirect tax issue.

 

 

Satellite dishers are to receive foreign programmes. SO domestic programmes would be unaffected. This would be a market distortion and a measure having equivalence to quantitative restriction. This tax makes it harder for foreign service providers.

This measure restricts trade under article 56 TFEU.

 

One could seek to argue it is permissible to preserve culture or the urban environment. That would be allowed under TFEU 52 only is proportionate.

Is it distinctly applicable or indistinctly applicable.

This law will likely fail.

 

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General remarks This question tests your knowledge of free movement of services, the use of justifications and the proportionality test. Law cases, reports and other references the examiners would expect you to use Case C-384/93 Alpine Investments [1995] ECR I-1141; Case C-36/02 Omega [2004] ECR I-9609; Case C-42/07 Liga Portuguesa de Futebol Proffissional. LA3024 EU law 4 Common errors Qualifying the measure under free movement of goods or under indirect taxes. A good answer to this question would… The measure is likely to be considered as an obstacle restricting access to the market under the case law interpreting Article 56 of TFEU (Alpine Investment; Gourmet). It could be argued that the impact on receiving TV channels from other member states’ providers could be greater (as satellite dishes can be used to receive these) while national terrestrial broadcasters are in a position of advantage. The tax could also be simply qualified as a measure that makes receiving a service more difficult. Depending on whether the measure is qualified as indistinctly or distinctly applicable, the grounds of justification can be either a new one (for instance protection of cultural and urban environment) or just a public policy argument under Article 52 TFEU. Finally, you should assess the proportionality of the measure. Poor answers to this question… failed to identify the correct freedom. Did not discuss possible justifications.

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About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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