Opinion of the Advocate General — ECLI:EU:C:2002:763
Date: 2002-12-12
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Netherlands

SUMMARY — CASE C-364/01 
Summary of the Judgment 
1. Free movement of capital — Liberalisation of capital movements — Directive 
88/361 — Scope 
(Council Directive 88/361, Art. 1(1)) 
2. Free movement of capital — Restrictions — National legislation concerning the 
assessment of inheritance tax on properties excluding from the assessment of their 
value the fact that non-resident owners were, before their death, under an obligation to 
transfer legal title to the financial owner — Not permissible 
1. The mere fact that the result of a 
national provision is to restrict move­
ments of capital by an investor who is a 
national of a Member State on the 
basis of his place of residence is suffi­
cient for Article 1(1) of Directive 
88/361 for the implementation of 
Article 67 of the Treaty (repealed by 
the Treaty of Amsterdam), which 
requires the Member States to abolish 
all restrictions on such movements of 
capital, to apply without the rights 
conferred by that directive being sub­
ject to the existence of other cross-
border elements. 
Similarly, it is not relevant that the 
provision in question was adopted by 
the Member State of origin of the 
person concerned. 
(see paras 59, 61) 
2. Community law precludes national 
legislation concerning the assessment 
of tax due on the inheritance of 
immovable property situated in the 
Member State concerned according to 
which, in order to assess the property's 
value, the fact that the person holding 
legal title was under an unconditional 
obligation to transfer it to another 
person who has financial ownership 
of that property may be taken into 
account if, at the time of his death, the 
former resided in that Member State, 
but may not be taken into account if he 
resided in another Member State. 
(see para. 76, operative part) 
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