1.

Since services are provided by banks as a general rule in conjunction with movements of capital when banking transactions are carried out, the relationship of the provisions of the EEC Treaty on the free movement of services to those relating to the free movement of capiul has from the beginning entailed special demarcation difficulties. Consequently the distinction between ‘ordinary’ banking services and banking services connected with movements of capital was developed of which only the former are regarded as being services within the meaning of Articles 59 and 60 of the EEC Treaty and subject to the provisions of the chapter on services, whereas banking services connected with movements of capiul according to Article 61 (2) of the EEC Treaty are only to be liberalized in step with the progressive liberalization of movement of capiul. The question whether the banking services are ordinary or ‘connected’ or simply movement of capiul is in principle determined by deciding whether or not the parties have entered into a contract for the movement of capiul. There is only movement of capiul if the main purpose of the contract is such a movement of capital as is mentioned in the directives on Article 67 of the EEC Treaty; this is the case for example with ‘… short-term and medium-term credits in respect of commercial transactions in which a resident is participating’ (cf. List A of Annex I to the First Directive of 11 May 1960. Official Journal, English Special Edition 1959-1962, p. 51). The banking services connected therewith (transfers, the collection of interest, etc.) are not regarded as separate service so that the liberalization of these capital movements is only to be effected in accordance with Article 67 of the Treaty. On the other hand transactions which are not associated with movements of capiul, for example contracts of deposit, market surveys and similar services, are ordinary banking services. Finally ‘connected’ banking services within the meaning of Article 61 (2) of the Treaty are assumed to be those in which the movement of capiul is necessary or normal in order to complete the transaction. An exhaustive enumeration of the ‘connected’ banking services which are to be liberalized is found in Council Directive 73/183/EEC of 28 June 1973 on the abolition of restrictions on freedom of establishment and freedom to provide services in respect of self-employed activities of banks and other financial institutions (Official Journal 1973, L 194, p. 1). It is clear that this enumeration only covers ancillary activities which are merely incidental to the main purpose of movement of capiul. On the question whether Article 59 et seq. of the EEC Treaty apply at all to the plaintiffs operations in this case the determinative factor therefore is whether and in certain circumstances which of, its operations may be regarded as ordinary banking services provided for the defendant. In my view carrying out time-bargains and keeping an account relating thereto are ordinary banking services to which Articles 59 and 60 of the EEC Treaty apply. The overdraft credit granted in connexion therewith is accordingly a short-term credit which within the meaning of List A of Annex I to the First Directive of 1960 on capital movements is connected with these services. There is no ground at all for the assertion that the carrying out of time-bargains is a necessary or even a normal element in the granting of an overdraft credit. It is precisely such a dependence on another transaction which is the determinative characteristic of a ‘connected’ banking service within the meaning of Article 61 (2) of the Treaty. List B of Annex I to the First Directive of 1960 on capiul movements cannot lead to any other conclusion either in so far as it refers to ‘securities dealt in on a stock exchange (excluding units of unit trusts)’. The ‘receipt of orders to buy and sell’ according to the Directive of 1973 does form part of the banking services connected with this kind of capiul movement. However it must be borne in mind in this context that the defendant's transactions were not operations in securities within the meaning of the said directive; operations in securities within the meaning of this directive according to the definition in List B of Annex I to the First Directive of 1960 on capiul movements relate only to the acquisition of domestic or foreign securities dealt in on a stock exchange and also the repatriation or the use of the proceeds of liquidation thereof. However there is no doubt that the transactions entered into by the plaintiff did not result in such operations in securities; the securities were merely a means of exchange for the realization of speculative gains, without any holdings ever being in fact ‘acquired’ or any holdings bought in this way being ‘liquidated’. Therefore the time-bargains carried out by the plaintiff cannot be regarded as banking services connected with movements of capital within the meaning of Article 61 (2) of the Treaty.