Free movement of capital
Direct effect
It was held in Sanz de Lera that article 63 TFEU has direct effect. The ECJ held that it
laid down a clear and unconditional prohibition for which no implementing measure
was required. The existence of Member state discretion to take all measures necessary
to prevent infringement of national law and regulations contained within what is now
article 65(1)(B) TFEU did not prevent article 63 from having direct effect, because the
exercise of such discretion was subject to judicial review.
While direct taxation remains within member states’ competence, they must exercise
that competence consistently with EU law and avoid discrimination on the grounds of
nationality as follows from the Baars case.
Article 63 does not only prohibit measures that discriminate on grounds of
nationality, but also measures that may impede capital movements, even though
they are not discriminatory as follows from Commission v Portugal.
Article 64
Article 64(1) allows lawful restrictions on capital movement which existed on 31
december 1993 to remain in being
Article 66
The council is empowered under article 66 to take safeguard measures in exceptional
circumstances where capital movements to or from non-member countries cause, or
threaten to cause, serious difficulties for the operation of economic and monetary union.
Such measures can’t last longer than six months, and can be taken only where strictly
necessary.
Any restriction has to be objectively justified
gebbhard criteria for objective justification:
1. they must be applied in a non-discriminatory manner
2. they must be justified by imperative requirements in the general interest
3. they must be suitable for securing the attainment of the objective which they pursue
4. and they must not go beyond what is necessary in order to attain it.
Restrictions on the basis of article 65(3) also have to be objectively justified.
Justifications on grounds of public policy/security
A justification on this basis is provided for in article 65(1)(b) and a good illustration of
this is provided in the case of commission v Belgium in which a golden share in gas
and electricity was reserved to Belgian nationals was valid under article 65(1)(b) due to
the fact that it entailed strategic assets because it guaranteed energy supplies in the
event of a crisis, and therefore falls within the heading of public security.
, Restriction to the free movement of persons:
Direct discrimination
This can never be justified as follows from cases such as gravier.
Indirect discrimination
The Bressol case provides in §40 that unless objectively justified and proportionate to the aim
pursued, a provision of national law must be regarded as indirectly discriminatory if it is
intrinsically liable to affect nationals of other member states more than its own nationals
leading to a particular disadvantage of the non-national.
Non-discrimination
CJEU Bosman: every measure that is liable to hinder or make less attractive the exercise of
the freedom is prohibited unless objectively justified.
Objective justification:
Gebbhard/ Tas Hagen:
1. They must be applied in a non-discriminatory manner;
2. they must be justified by imperative requirements in the general interest;
3. they must be suitable for securing the attainment of the objective which they pursue;
4. and they must not go beyond what is necessary in order to attain it
as provided in the practice exam:
an indirectly – or non-discriminatory measure (established see above)may be justified
by a (1) proportionate (i.e. the measure must be suitable (in the sense that the measure
will lead to the end envisaged) and (2)necessary (in the sense that measures may not go
beyond what is strictly necessary )) (3) mandatory requirement in the public interest.
Genuine link under point 2
Frontier workers: §63 Giersch In that regard, it should be noted that the Court has
already held that migrant and frontier workers, since they have participated in the
labour market of a Member State, have in principle created a sufficient link of
integration with the society of that State, allowing them to benefit from the principle
of equal treatment
Students/Maintenance grants §55 Commission v Austria→ only maintenance
aid for studies ‘consisting in student grants or student loans’ come within the
derogation from the principle of equal treatment provided for in Article 24(2) of
Directive 2004/38.
It follows from the Bidar case that students can rely on articles 18 and 21 to claim
maintenance aid as this case ruled that maintenance aid would constitute a benefit
falling within the scope of the treaty under article 18 and 21 (effectively sidestepping
article 24 of directive 2004/38), HOWEVER,
o it is legitimate for a host Member State to wish to ensure that there is a genuine
link between a claimant to a benefit and the competent Member State as
illustrated in the case of commission v Austria.
the proof required to demonstrate the genuine link must not be too
exclusive in nature or unduly favour an element which is not
necessarily representative of the real and effective degree of
connection between the claimant to the benefit and the Member
Direct effect
It was held in Sanz de Lera that article 63 TFEU has direct effect. The ECJ held that it
laid down a clear and unconditional prohibition for which no implementing measure
was required. The existence of Member state discretion to take all measures necessary
to prevent infringement of national law and regulations contained within what is now
article 65(1)(B) TFEU did not prevent article 63 from having direct effect, because the
exercise of such discretion was subject to judicial review.
While direct taxation remains within member states’ competence, they must exercise
that competence consistently with EU law and avoid discrimination on the grounds of
nationality as follows from the Baars case.
Article 63 does not only prohibit measures that discriminate on grounds of
nationality, but also measures that may impede capital movements, even though
they are not discriminatory as follows from Commission v Portugal.
Article 64
Article 64(1) allows lawful restrictions on capital movement which existed on 31
december 1993 to remain in being
Article 66
The council is empowered under article 66 to take safeguard measures in exceptional
circumstances where capital movements to or from non-member countries cause, or
threaten to cause, serious difficulties for the operation of economic and monetary union.
Such measures can’t last longer than six months, and can be taken only where strictly
necessary.
Any restriction has to be objectively justified
gebbhard criteria for objective justification:
1. they must be applied in a non-discriminatory manner
2. they must be justified by imperative requirements in the general interest
3. they must be suitable for securing the attainment of the objective which they pursue
4. and they must not go beyond what is necessary in order to attain it.
Restrictions on the basis of article 65(3) also have to be objectively justified.
Justifications on grounds of public policy/security
A justification on this basis is provided for in article 65(1)(b) and a good illustration of
this is provided in the case of commission v Belgium in which a golden share in gas
and electricity was reserved to Belgian nationals was valid under article 65(1)(b) due to
the fact that it entailed strategic assets because it guaranteed energy supplies in the
event of a crisis, and therefore falls within the heading of public security.
, Restriction to the free movement of persons:
Direct discrimination
This can never be justified as follows from cases such as gravier.
Indirect discrimination
The Bressol case provides in §40 that unless objectively justified and proportionate to the aim
pursued, a provision of national law must be regarded as indirectly discriminatory if it is
intrinsically liable to affect nationals of other member states more than its own nationals
leading to a particular disadvantage of the non-national.
Non-discrimination
CJEU Bosman: every measure that is liable to hinder or make less attractive the exercise of
the freedom is prohibited unless objectively justified.
Objective justification:
Gebbhard/ Tas Hagen:
1. They must be applied in a non-discriminatory manner;
2. they must be justified by imperative requirements in the general interest;
3. they must be suitable for securing the attainment of the objective which they pursue;
4. and they must not go beyond what is necessary in order to attain it
as provided in the practice exam:
an indirectly – or non-discriminatory measure (established see above)may be justified
by a (1) proportionate (i.e. the measure must be suitable (in the sense that the measure
will lead to the end envisaged) and (2)necessary (in the sense that measures may not go
beyond what is strictly necessary )) (3) mandatory requirement in the public interest.
Genuine link under point 2
Frontier workers: §63 Giersch In that regard, it should be noted that the Court has
already held that migrant and frontier workers, since they have participated in the
labour market of a Member State, have in principle created a sufficient link of
integration with the society of that State, allowing them to benefit from the principle
of equal treatment
Students/Maintenance grants §55 Commission v Austria→ only maintenance
aid for studies ‘consisting in student grants or student loans’ come within the
derogation from the principle of equal treatment provided for in Article 24(2) of
Directive 2004/38.
It follows from the Bidar case that students can rely on articles 18 and 21 to claim
maintenance aid as this case ruled that maintenance aid would constitute a benefit
falling within the scope of the treaty under article 18 and 21 (effectively sidestepping
article 24 of directive 2004/38), HOWEVER,
o it is legitimate for a host Member State to wish to ensure that there is a genuine
link between a claimant to a benefit and the competent Member State as
illustrated in the case of commission v Austria.
the proof required to demonstrate the genuine link must not be too
exclusive in nature or unduly favour an element which is not
necessarily representative of the real and effective degree of
connection between the claimant to the benefit and the Member
