Combating protectionism : the impact of Article 110 of the TFEU

Abstract

This Term Paper seeks to determine the extent to which Article 110 of the TFEU combats the protectionism of national economies. Such a phenomenon often occurs through the imposition of discriminatory taxation upon goods originating in another Member State with the intent and effect of promoting the locally-produced good. Situations reminiscent of the latter circumstances can thus be said to impede one of the four freedoms central to the proper functioning of the European Union, proving of hindrance to the free circulation of goods between Member States. It is thus that mechanisms preventing the application of such discriminatory measures through internal taxation are imperative.

At face value, the wording of the article in question prevents discriminatory indirect taxation upon goods which are either similar in nature or capable of being in competition with one another. This said, internal taxation may nonetheless be differential yet not discriminatory. The latter applies in circumstances where there is an objectively justifiable reason for the imposition of a higher tax on goods originating in another Member State than that imposed upon the domestic product. This thus allows a certain leeway to the prohibition imposed by Article 110. However, albeit thorough analysis which the court ventures into in each particular case, it cannot be taken for granted that what may at first glance appear to be an objectively justifiable ground, is not in actual fact a mask for an ulterior protectionist motive. Thus, the role of the judge is key in ensuring that the anti-protectionist objective of Article 110 is truly reached.