Case C‑317/15

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Staatssecretaris van Financiën

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

(Reference for a preliminary ruling — Free movement of capital — Article 64 TFEU — Movement of capital to or from third countries involving the provision of financial services — Financial assets held in a Swiss bank account — Additional assessment for recovery — Recovery period — Extension of the recovery period in the case of assets held outside the Member State of residence)

Summary — Judgment of the Court (Ninth Chamber), 15 February 2017

1. Free movement of capital and liberalisation of payments—Restrictions on movements of capital to and from non-Member States—Restrictions on movements of capital involving direct investment, establishment, the provision of financial services or the admission of securities to capital markets—Concept of a restriction which existed on 31 December 1993—Extension of the recovery period in the case of assets held outside the Member State of residence—Possibility of its application in situations which bear no relation to direct investment, establishment, the provision of financial services or the admission of securities to capital markets

   (Arts 63(1) TFEU and 64(1) TFEU)

2. Free movement of capital and liberalisation of payments—Restrictions on movements of capital to and from non-Member States—Movements of capital involving the provision of financial services—Concept—Opening of a securities account by a resident of a Member State with a banking institution outside the European Union—Included

   (Art. 64(1) TFEU)

3. Free movement of capital and liberalisation of payments—Restrictions on movements of capital to and from non-Member States—Restrictions relating to the movement of capital involving the provision of financial services—Scope—Extension of the recovery period in the case of assets held outside the Member State of residence—Measure unrelated to either the provider of the services or the conditions or mechanisms of the provision of services—Included

   (Art. 64(1) TFEU)

1.  Article 64(1) TFEU must be interpreted as applying to national legislation which imposes a restriction on the movements of capital referred to in that provision, such as the extended recovery period at issue in the main proceedings, even where that restriction can also be applied to situations which have nothing to do with direct investment, establishment, the provision of financial services or the admission of securities to capital markets.

   In that regard, it should be noted, first, that it is apparent from the wording of Article 64(1) TFEU that that provision contains a derogation from the prohibition laid down in Article 63(1) TFEU in favour of the ‘application’ of any restrictions which existed on 31 December 1993 under national law adopted in respect of the movement of capital involving direct investment, establishment, the provision of financial services or the admission of securities to capital markets. Thus, the applicability of Article 64(1) TFEU depends, not on the purpose of the national legislation containing such restrictions, but on its effect. That provision applies to the extent to which that national legislation imposes a restriction on movements of capital involving direct investment, establishment, the provision of financial services or the admission of securities to capital markets. Accordingly, the fact that that legislation may also apply to other situations is not such as to preclude Article 64(1) TFEU from being applicable in the circumstances which it covers.

   Secondly, that interpretation is confirmed by the Court’s case-law. According to that case-law, a restriction on capital movements, such as a less favourable tax treatment of foreign-sourced dividends, comes within the scope of Article 64(1) TFEU, inasmuch as it relates to holdings acquired with a view to establishing or maintaining lasting and direct economic links between the shareholder and the company concerned and which allow the shareholder to participate effectively in the management of the company or in its control (judgment of 24 November 2016, SECIL, C‑464/14, EU:C:2016:896, paragraph 78 and the case-law cited). Similarly, according to the Court, a restriction is covered by Article 64(1) TFEU as being a restriction on the movement of capital involving direct investment in so far as it relates to investments of any kind undertaken by natural or legal persons and which serve to establish or maintain lasting and direct links between the persons providing the capital and the undertakings to which that capital is made available in order to carry out an economic activity (see, to that effect, judgment of 20 May 2008, Orange European Smallcap Fund, C‑194/06, EU:C:2008:289, paragraph 102). It is clear from those judgments, and, in particular, from their use of the phrases ‘inasmuch as’ and ‘in so far as’, that the scope of Article 64(1) TFEU does not depend on the specific purpose of a national restriction, but on its effect on the movements of capital referred to in that provision.

   (see paras 21, 22, 25, operative part 1)

2.  The opening of a securities account by a resident of a Member State with a banking institution outside the European Union, such as that at issue in the main proceedings, comes within the concept of a movement of capital involving the provision of financial services, within the meaning of Article 64(1) TFEU.

   In that regard, it should be pointed out that the capital movements resulting from the opening of a securities account with a banking institution involve the provision of financial services. First, it is common ground that that banking institution carries out, for the benefit of the account holder, account-management services, which must be regarded as constituting a provision of financial services.

   Secondly, there is a causal link between the capital movements concerned and the provision of financial services given that the holder places his capital in a securities account by reason of the fact that, in return, he benefits from the management services which he receives from the banking institution. Accordingly, in a situation such as that at issue in the main proceedings, there is a sufficiently close link between the capital movements and the provision of financial services.

   (see paras 29-31, operative part 2)

3.  The possibility, provided for in Article 64(1) TFEU, for Member States to apply restrictions on capital movements involving the provision of financial services also applies to restrictions which, like the extended recovery period at issue in the main proceedings, are not related to either the provider of the services or the conditions and mechanisms of the provision of services.

   In that regard, it should be noted that the decisive criterion for the application of Article 64(1) TFEU is concerned with the causal link between the capital movements and the provision of financial services and not with the personal scope of the contested national measure or its relationship with the provider, rather than the recipient, of such services. The scope of that provision is defined by reference to the categories of capital movements which are capable of being subject to restrictions (judgment of 21 May 2015, Wagner-Raith, C‑560/13, EU:C:2015:347, paragraph 39).

   Consequently, the fact that a national measure concerns first and foremost the investor and not the provider of a financial service cannot preclude that measure from coming within the scope of Article 64(1) TFEU (judgment of 21 May 2015, Wagner-Raith, C‑560/13, EU:C:2015:347, paragraph 40). Likewise, the fact that a national measure bears no relation to the conditions or mechanisms of the provision of a financial service cannot preclude that measure from coming within the scope of that provision.

   (see paras 33-35, operative part 3)