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Art. 63 TFEU: prohibition on Capital restrictions
Art. 64 TFEU: Third-country exceptions
Art. 65 TFEU: Justifications for National restrictions
Art. 66 TFEU: Exceptional Safeguard measures for Third-country Capital
A. The Direct Effect of Article 63
This article contains a central prohibition governing the free movement. It’s clear and
unconditional. However, the provisions in the Directive are confined to Intra-Union
situations.
Question arose if direct effect was also applicable to third countries.
This distinguishes this freedom of the others.
But here comes art. 64 TFEU which exempts national measures to be adopted.
The Court found that it’s directly effective:
Case law: Skatteverket Case (page 5) – part 2 -
Para 25-26 (art. 63 (1) TFEU ….. treaty)
The Court consequently found that all of Article 63 TFEU conferred directly enforceable
rights on individuals – even with regard to capital movements from or to third States. The
Court has also confirmed that Article 63 has the same material scope for intra-Union and
extra-Union capital movements, since it has insisted that the same notion of capital
restriction would apply in both situations. <<<<<<<<<<< Skatteverket para 28 and 31
B. The Elusive Concept of ‘Capital’
Capital can be negatively defined as all that wealth that is not consumed but ‘invested’.
Treaty doesn’t provide a definition, thus in the hand of the Court and Union legislature.
Court adopted a legislative definition of the concept in Directive 88/361 as a
‘nomenclature’ of capital movements, which has been accepted as a indicative value. It
lists a number of capital categories. For example, direct investments of investments in real
estate. This is applicable in
Case law: Konle Case (page 21) – part 2 -
Para<<<<<<<
The nomenclature list is not exhaustive. Court confirmed to go beyond the broad
categories, therefore it has been given a open and expansive scope, potentially
overlapping the other freedoms.
Literature: Chapter 16: 654-681
Cases: Skatteverket, Konle, Sandoz, Cadbury Schweppes, Test Claiments II, Fidium
Finanz
Articles: Directive 88/361
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