European Union law week 4
Problem 6, lecture 26-10 and problem 7
Free movement of capital art. 63 TFEU
The central legislative measure for this freedom is Directive 88/361. The directive
turned capital provisions from weakly worded to a powerful liberalizing force both within
and outside the EU. Art. 63 TFEU is about the free movement of capital. The provision
has direct effect. The provision in the directive is about intra-Union situations. Therefore,
the question arose whether direct effect of art. 63 would also extend to situations that
involved third countries. Art. 64 contains conditions for the capital movements between
Member States and third countries. The Court confirmed that art. 63 has the same
material scope for intra- and extra-Union capital movements.
Skatteverket (page 5) – The provision of the free movement of capital has direct
effect p. 20. The freedom is extended and therefore the same terms relate to capital
taking place in third countries as to capital taking place within the Union p. 31.
The capital categories distinguished in the directive don’t form the entire
terminology. The Court says we can even go beyond the broad categories within the
directive.
Discrimination & beyond
Art. 63 prohibits all restrictions on the movement. This includes import, export,
regulatory barriers and fiscal measures.
Direct discrimination
Konle (page 21) – Austrian nationals didn’t have to obtain authorization before
acquiring a plot of land, yet foreigners did. Discriminatory national measures that hinder
the free movement of capital is prohibited p. 23 & 24. Also see p. 36 & 39.
Non-discriminatory measures
Sandoz (page 34) – Austrian legislation imposed a duty on any loan. Sandoz saw the
duty as an obstacle to the free movement of capital p. 14. The Austrian Finance Minister
Problem 6, lecture 26-10 and problem 7
Free movement of capital art. 63 TFEU
The central legislative measure for this freedom is Directive 88/361. The directive
turned capital provisions from weakly worded to a powerful liberalizing force both within
and outside the EU. Art. 63 TFEU is about the free movement of capital. The provision
has direct effect. The provision in the directive is about intra-Union situations. Therefore,
the question arose whether direct effect of art. 63 would also extend to situations that
involved third countries. Art. 64 contains conditions for the capital movements between
Member States and third countries. The Court confirmed that art. 63 has the same
material scope for intra- and extra-Union capital movements.
Skatteverket (page 5) – The provision of the free movement of capital has direct
effect p. 20. The freedom is extended and therefore the same terms relate to capital
taking place in third countries as to capital taking place within the Union p. 31.
The capital categories distinguished in the directive don’t form the entire
terminology. The Court says we can even go beyond the broad categories within the
directive.
Discrimination & beyond
Art. 63 prohibits all restrictions on the movement. This includes import, export,
regulatory barriers and fiscal measures.
Direct discrimination
Konle (page 21) – Austrian nationals didn’t have to obtain authorization before
acquiring a plot of land, yet foreigners did. Discriminatory national measures that hinder
the free movement of capital is prohibited p. 23 & 24. Also see p. 36 & 39.
Non-discriminatory measures
Sandoz (page 34) – Austrian legislation imposed a duty on any loan. Sandoz saw the
duty as an obstacle to the free movement of capital p. 14. The Austrian Finance Minister
