Keywords
Summary

Keywords

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1. Free movement of goods ° Freedom to provide services ° Provisions of the Treaty ° Scope ° Physical transfer of assets ° Excluded ° Application of the provisions concerning capital movements or payments

(EEC Treaty, Arts 30, 59, 67 and 106; Council Directive 88/361)

2. Free movement of capital ° Liberalization of capital movements ° Directive 88/361 ° National supervisory measures ° Physical transfers of assets conditional upon prior authorization ° Not permissible ° Possibility for individuals to rely on the corresponding provisions

(Council Directive 88/361, Arts 1 and 4)

Summary

1. Rules which make the export of coins, banknotes or bearer cheques conditional upon a prior declaration or an administrative authorization and make that requirement subject to criminal penalties do not fall within the scope of Articles 30 and 59 of the Treaty.

It is clear from the system of the Treaty that the physical transfer of assets falls not under those articles but under Article 67 and Directive 88/361 implementing that provision and, even if it were established that such a transfer constituted a payment connected with trade in goods or services, the transaction would be governed not by Articles 30 and 59 but by Article 106 of the Treaty.

2. Directive 88/361 for the implementation of Article 67 of the Treaty and in particular Article 1 thereof, requiring Member States to abolish restrictions on movements of capital, and Article 4, authorizing them to take all requisite measures to prevent infringements of their national laws and regulations, preclude the export of coins, bank notes or bearer cheques being made conditional on prior authorization but do not by contrast preclude a transaction of that nature being made conditional on a prior declaration.

Although Article 4 applies not only to measures to prevent infringements in the field of taxation and for the prudential supervision of financial institutions, but also to those designed to prevent illegal activities of comparable seriousness, such as money laundering, drug trafficking or terrorism, the requirement of authorization cannot be regarded as a requisite measure within the meaning of that provision, because it would cause the exercise of the free movement of capital to be subject to the discretion of the administrative authorities and thus be such as to render that freedom illusory. A prior declaration, on the other hand, may constitute a requisite measure within that meaning since, unlike prior authorization, it does not entail suspension of the transaction in question but does still allow the national authorities to exercise effective supervision in order to prevent infringements of their laws and regulations.

The provisions mentioned above may be relied on before national courts and render inapplicable national rules which conflict with them.