Opinion of the Advocate General — ECLI:EU:C:2014:2476
Date: 2014-12-18
Language of the case: German
Subject matter: Free movement of capital
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 21 May 2015 1. Free movement of capital and freedom to make payments — Liberalisation of capital movements — Directive 88/361 — Scope — Receipt of dividends from a collective investment undertaking — Included (Council Directive 88/361, Annex I) 2. Freedom to provide services — Free movement of capital — Provisions of the Treaty — Examination of a national measure relating to those two fundamental freedoms — Criteria for determining the applicable rules (Arts 56 TFEU, 63 TFEU and 64(1) TFEU) 3. Free movement of capital and freedom to make payments — Restrictions on the movement of capital to or from third countries — Restrictions on the movement of capital involving the provision of financial services — Concept — National legislation providing for flat-rate taxation of investment income from holdings in foreign investment funds — Included (Art. 64 TFEU) 1. Although the receipt of dividends from a collective investment undertaking is not expressly mentioned as a ‘capital movement’ in the nomenclature that constitutes Annex I to Directive 88/361 for the implementation of Article 67 of the Treaty, it may be linked to the acquisition by residents of units of foreign undertakings dealt in or not dealt in on a stock exchange and, therefore, is indissociable from a capital movement. Consequently, national legislation which regulates taxation of the income of investors who possess holdings in collective investment undertakings, by laying down methods of taxation that differ according to whether the non-resident investment fund concerned complies with the national provisions, constitutes a measure which relates to capital movements within the meaning of that nomenclature. (see paras 25, 26) 2. It is apparent from the wording of Article 56 TFEU and Article 63 TFEU, and the position which they occupy in two different chapters of Title IV of the Treaty, that, although closely linked, those provisions were designed to regulate different situations and they each have their own field of application. In order to determine whether national legislation falls within the scope of one or other of the fundamental freedoms guaranteed by the Treaty, the purpose of the legislation concerned must be taken into consideration. National legislation whose purpose relates principally to the provision of financial services falls within the Treaty provisions relating to the freedom to provide services, even though it could result in or involve capital movements. On the other hand, national measures whose purpose relates at least principally to capital movements fall within the field of application of Article 64(1) TFEU. Accordingly, 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. (see paras 30-32, 34, 39) 3. Article 64 TFEU must be interpreted as meaning that national legislation which provides for flat-rate taxation of the income of holders of units in a non-resident investment fund when the latter has not fulfilled certain statutory obligations constitutes a measure which relates to movement of capital involving the provision of financial services within the meaning of that article. (see para. 48, operative part)