1.

Two cases have been referred to the Court for a preliminary ruling relating to the exportation within the Community of foreign currency intended to pay for services in connection with tourism, health, education and business travel. In essence the issue to be decided is whether and how those matters are governed by Community law. The Court is therefore called upon to interpret the provisions of the EEC Treaty regarding liberalization of current payments for seivices which involve travel by the recipient of the service from the country in which he resides to the country in which the service is provided. The questions on which the Court must give a ruling are also of particular importance because of their novelty. There are no exact precedents, apart from a number of general statements contained in judgments of 23 November 1978 (Case 7/78 R. v Thompson and Others [1978] ECR 2247) and 11 November 1981 (Case 203/80 Casati [1981] ECR 2595). Moreover, the lastmentioned case deals only with transfers of currency for which no consideration is given, so that at the end of the transitional period they would not be liberalized and the Member States would be empowered to limit and control them. I shall now summarize the facts of Case 286/82. On 20 August 1979 the Ufficio Italiano dei Cambi [Italian Exchange Office] discovered that in 1975 Mrs Graziana Luisi had used foreign currency abroad of an exchange value of about LIT 25000000. The Ministro del Tesoro [Minister for the Treasury] charged her with an infringement of the Ministerial Decree of 2 May 1974 (Gazzetta Ufficiale della Repubblica Italiana No 114 of 3. 5. 1974) and fined her more than LIT 24000000. Mrs Luisi then appealed to the Tribunale di Genova [District Court, Genoa] for the quashing of that decision on the ground that the legislation on which the fine was based was inapplicable since it was contrary to Articles 3 (c), 5, 67, 68, 71 and 106 (3) of the EEC Treaty and to the two Council directives implementing Article 67 (11 May 1960 and 18 December 1962). By a further order of 11 January 1982, based on a new finding by the Ufficio Italiana dei Cambi (12 February 1980), the Ministro del Tesoro imposed a further fine af around LIT 8000000 on Mrs Luisi for using abroad means of payment of an exchange value of around LIT 8500000. This gave rise to a second appeal by Mrs Luisi on the same grounds and before the same court. The two cases were joined. Considering that a preliminary ruling on the interpretation of Articles 67, 69 and 106 (3) of the Treaty and of the two aforesaid directives was required, the court stayed the proceedings by order of 12 July 1982 and submitted to the Court of Justice the questions which I shall set out at the same time as those in the Carbone case. I now move on to the Carbone case (26/83). On 6 September 1979 the Ufficio Italiano dei Cambi discovered that during 1975 Mr Giuseppe Carbone had used American dollars, Swiss francs and German marks abroad of an exchange value of around LIT 14000000. On the basis of that finding the Ministro del Tesoro, by decision of the 28 October 1981, fined him around LIT 13000000. Like Mrs Luisi, Mr Carbone appealed to the Tribunale di Genova, claiming that he had used the foreign currency for a visit to Germany as a tourist and maintaining that the Ministerial Decree of 2 May 1974 was inapplicable since it was contrary to Articles 3 (c), 5, 67, 68, 71 and 106 (3) of the EEC Treaty. He too therefore requested that the decision fining him should be quashed. Thè Tribunale stayed the proceedings and referred to the Court, under Article 177 of the EEC Treaty, the questions which I shall now summarize together with those in the Luisi case. 1. Must the first subparagraph of Article 106 (3) of the Treaty be interpreted as meaning that, in the case of exportation by residents travelling abroad for the purpose of tourism of foreign State and bank notes and credit instruments in foreign currency, Community nationals enjoy a right of exportation on the ground that such travel falls within the movements of services and that transfers of currency for that purpose are to be regarded as current payments and therefore as liberalized in the same way as the services to which they relate? 2. Or must the first subparagraph of Article 106 (3) of the Treaty be interpreted as meaning that where foreign currency is exported in the form indicated in Question 1 by residents going abroad for the purpose of tourism, medical treatment, education or business, Community nationals enjoy a right of exportation on the ground that the Member States must comply with the “standtill” clause contained in that article and that such exportation of foreign currency falls within the invisible transactions listed in Annex III to the Treaty? 3. Or must the second subparagraph of Article 106 (3) of the Treaty be interpreted as meaning that, because it refers to the rules on the free movement of capital, Community nationals are not entitled to export currency in the circumstances indicated in Question 2 and that the transfers in question are to be regarded as movements of capital (regarding which see Articles 67 and 68 and the two implementing directives) which the Member States are not obliged to liberalize, with the result that national controls and administrative sanctions arc lawful? By order of 8 June 1983 this Court joined the two cases for the purpose of the oral procedure and judgment, in view of the fact that their subject-matter is closely connected.