Opinion of the Advocate General — ECLI:EU:C:2014:15
Date: 2014-01-16
Language of the case: Dutch
Subject matter: Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Third Chamber), 5 June 2014 Free movement of capital and liberalisation of payments — Restrictions — National legislation restricting movements of capital between a Member States and its own overseas countries and territories — Measure adopted with the objective of combating tax evasion — Lawfulness — Justification — Conditions (Art. 56 EU; Council Decision 2001/822, Arts 47(1) and 55) EU law must be interpreted as not precluding a tax measure of a Member State which restricts movements of capital between that Member State and its own overseas country and territory (OCT) whilst pursuing the objective of combating tax avoidance in an effective and proportionate manner. Although Article 47(1)(b) of Decision 2001/822 on the association of the overseas countries and territories with the European Community prohibits, among others, restrictions on the payment of dividends between the European Union and OCTs, along the lines of the prohibition of such measures set out in Article 56 EC as regards, inter alia, relations between Member States and third countries, that decision includes, in Article 55, a tax carve-out clause expressly aimed at preventing tax avoidance. In this respect, a tax measure which is intended to prevent excessive capital flow towards an OCT and thus to counter the appeal of that OCT as a tax haven, comes under the tax carve-out clause cited above and remains, consequently, outside the scope of application of Article 47(1) of Decision 2001/822, provided it pursues that objective in an effective and proportionate manner, which is a matter for the referring court to assess. (see paras 49, 51, 53, 54, operative part)