6.

Therefore I do not share the attitude taken by the Government of the Federal Republic of Germany and by Mr Casati according to which Article 67 (1), where it provides that restrictions on movements of capital are to be abolished only “to the extent necessary to ensure the proper functioning of the common market”, does not make the time-table for abolition depend on discretionary assessments by the Council but merely restricts the scope of the obligation imposed on Member States from the quantitative point of view. It follows from that argument that private persons might, after the end of the transitional period, assert a personal right to carry out transfers of currency (the Federal Government has explained that its statements refer specifically to the currency aspect of movements of capital) and that the national court would have jurisdiction to determinate, case by case, by reference to the criterion of the necessity of liberalization for the proper functioning of the Common Market, whether a given movement of capital should be regarded as liberalized. The first argument adduced in support of these ideas is of a general nature. It is asserted that the free movement of capital under the system of the EEC Treaty is as important as the other freedoms of movement (for goods, persons and services) and should therefore also be regarded as having been achieved, by means of the direct application of the relevant provisions, upon the expiry of the transitional period. The unifying reference in Article 3 (c) of the Treaty to the objective of the “abolition as between Member States of obstacles to freedom of movement for persons, services and capital” is said to demonstrate that the Contracting Parties intended to create a fundamentally uniform body of rules for the freedoms in question. In my opinion, however, an interpreter may not confine himself to the general context of the principles on which integration is based, set out in the early articles of the Treaty, but must above all take account of the specific rules on each matter. In addition, the provisions on the movement of capital are formulated in a manner which clearly distinguishes them from the provisions on the movement of workers, the right of establishment and the free movement of services. I do not believe there is any justification for neglecting or minimizing that difference in the name of the unicity of inspiration underlying the principles common to all the Community “freedoms of movement”. Furthermore, the position of the German Government is far from clear when it admits that some restrictions are still lawful after the expiry of the transitional period, namely restrictions on “short-term” movements of capital, and identifies them by reference to one of the lists annexed to the Directive of 11 May 1960 (List D) (First Directive for the Implementation of Article 67 of the Treaty, Official Journal, English Special Edition, 1959-1962, p. 42). If, in order to identify permissible restrictions, it is necessary to resort to the directives adopted, that means that the application of the criterion of whether or not it is necessary to abolish restrictions in the interests of the proper functioning of the Common Market may not be entrusted to the interpreter and that this criterion is given concrete form only through the discretionary assessments of the Council. But in that case the directives also have to be issued in order to identify prohibited restrictions. On the other hand that is in conformity with the function of those measures which, according to Article 69, are intended to bring about the abolition of restrictions and not to indicate restrictions permitted. Thus, in the final analysis, it makes no sense to assert that after the expiry of the transitional period currency restrictions on movements of capital are abolished, regardless of what is laid down by Article 69. Nor would there be any point in objecting, in that connection, that the German Government does not dispute the efficacy of the directives which have already been adopted but merely considers that no purpose is served by making progress in achieving liberalization depend on fresh directives once the transitional period is over and the prohibition contained in Article 67 is operative in its own right. In reality, when it comes to distinguishing between currency and non-currency restrictions, the Federal Government again refers to the directives, adding that the Council “has reserved the right to carry out further liberalization”. For the time being, therefore, that Government refrains from attributing direct effect to Article 67 as regards non-currency rstrictions although that provision concerns restrictions on all movements of capital. The Federal Government observes, again in support of its contention that Article 67 is directly applicable, that in any event the Member States may always adopt appropriate safeguard measures if movements of capital were to lead to “disturbances in the functioning of the capital market” (Article 73 (1)) or to difficulties as regards the balance of payments (Article 108). However, the easy answer to that is that it is one thing to regard the Member States as still being free to maintain in force any restrictive measures which are compatible with the directives adopted or to be adopted by the Council pursuant to Article 69, and another to recall that in certain circumstances and subject to the Commission's authorization those Member States have the option of adopting safeguard measures. In other words, it is not a question of ascertaining whether an individual Member State is in a position to avoid the potentially intolerable consequences for its economy of a liberalized capital market but, rather, of defining the scope of the restrictions so far imposed on all the Member States as a result of the effect of Article 67 et seq. and the secondary legislation. Assuming that to be the case, I consider that the argument to which I subscribe, namely that Article 67 does not have direct effect, is in no way affected by the fact that Articles 73 (1) and 108 of the Treaty contain safeguard clauses. It will of course be possible to use them, in the circumstances specified by the two articles, as temporary derogations from the liberalized system of capital movements, irrespective of the level of liberalization attained.