CELEX: C1996/180/49
Language: en
Date: 1996-06-22 00:00:00
Title: Action brought on 24 April 1996 by the Commission of the European Communities against the Kingdom of Spain (Case C-134/96)

22 . 6 . 96           EN                 Official Journal of the European Communities                               No C 180/23
Action brought on 24 April 1996 by the Commission of the            implemented system of declaration can perform that
   European Communities against the Kingdom of Spain                function perfectly well .
                       ( Case C-134/96 )
                                                                    (') OJ No L 178 , 8 . 7. 1988 , p . 5 .
                         ( 96/C 180/49 )
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on
                                                                    Action brought on 24 April 1996 by the Commission of the
24 April 1996 by the Commission of the European                      European Communities against the Kingdom of Belgium
Communities, represented by Antonio Caeiro and Miguel
Diaz-Llanos La Roche, Legal Advisers, with an address for                                     Case C-135/96 )
service in Luxembourg at the office of Carlos Gomez de la                                      (96/C 180/50 )
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                    An action against the Kingdom of Belgium was brought
                                                                    before the Court of Justice of the European Communities on
The applicant claims that the Court should :                        24 April 1996 by the Commission of the European
                                                                    Communities , represented by Hendrik van Lier and
1 , declare that, by making subject to an administrative            Jean-Francis Pasquier, acting as Agents, with an address for
     authorization the physical exportation of money in             service in Luxembourg at the office of Carlos Gômez de la
     cash, notes or bearer cheques in pesetas for foreign           Cruz, Wagner Centre, Kirchberg.
     currency in an amount exceeding Pta 5 million, the
     Kingdom of Spain has failed to fulfil its obligations          The Commission of the European Communities claims that
     under Council Directive 88/361 /EEC ( 1 ) and, as from         the Court should :
     1 January 1994 , Articles 73b and 73d of the EC
     Treaty;                                                        — declare that, by failing within the prescribed period to
                                                                        adopt the laws , regulations and administrative measures
                                                                        necessary in order to comply with Commission Directive
2 , order the Kingdom of Spain to pay the costs .                       91 /659/EEC adapting to technical progress Annex I to
                                                                        Council Directive 76/769/EEC on the approximation of
Fleas in law and main arguments                                         the laws, regulations and administrative provisions of
                                                                        the Member States relating to restrictions on the
                                                                        marketing and use of certain dangerous substances and
Since Directive 88/361 /EEC does not set any specific limits,
                                                                        preparations ( asbestos ) ('), the Kingdom of Belgium has
the free movement of capital must be interpreted in the
                                                                        failed to fulfil its obligations under the Treaty,
broadest sense possible and not otherwise . That
interpretation may be extracted from the wording of the             — order the Kingdom of Belgium to pay the costs .
introduction to the nomenclature in Annex I to the
Directive . That conclusion is corroborated by the wording          Pleas in law and main arguments
of the new Article 73b of the EC Treaty which prohibits all
restrictions on the movement of capital between Member              The mandatory nature of the provisions of the third
States and between Member States and third countries .              paragraph of Article 189 of the EC Treaty is such as to
Article 73d 1 ( b ) nonetheless explains that Article 73b is to     oblige Member States to whom directives are addressed to
be without prejudice to the right of Member States to apply         adopt the measures necessary for the implementation of
the requisite measures to prevent infringement of national          such directives within the time limit prescribed therein. The
law and regulations, in particular in the field of taxation and     time limit in question expired, on 1 January 1993 but the
prudential supervision of financial institutions, or to lay         Kingdom of Belgium has not adopted the necessary
down procedures for the declaration of capital movements            measures .
for purposes of administrative or statistical information, or
to take measures which are justified on grounds of public           (') OJ No L 363 , 31 . 12 . 1991 , p . 36 .
policy or public security. The concept of 'requisite measure'
meets the requirement of proportionality which must
characterize any measure which involves an exception to a
freedom recognized by the Treaty .
                                                                    Reference for a preliminary ruling from the Tribunal de
                                                                    Grande Instance, Paris, by judgment of that court of
The Spanish authorities allege tax fraud, terrorism and             23 February 1996 in the case of The Scotch Whisky
money laundering, which is often linked to drugs                    Association v. La Martiniquaise LM, now called
trafficking, that is to say, problems which affect all the          Compagnie Financière Européenne de Prises de
Member States and which constitute a real public order              Participation ( Cofepp ), Prisunic SA, Centrale d'Achats et de
threat in those States . Once it is acknowledged that the                        Services Alimentaires SARL ( Casai )
objective is lawful, in order to ascertain whether the
requirement of authorization is proportional , methods of                                    ( Case C- 1 3 6/96 )
supervision which allow the objective itself of preventing                                     ( 96/C 180/51 )
infringement of national law and regulations, but which
hinder to a lesser extent movements of capital should be            Reference has been made to the Court of Justice of the
considered . The Commission is of the view that a properly          European Communities by a judgment of the Tribunal de