Criminal proceedings against Lucas Emilio Sanz de Lera, Raimundo Díaz Jiménez and Figen Kapanoglu.
Date: 1995-12-14
10 In Bordessa the Court held that Articles 1 and 4 of Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (OJ 1988 L 178, p. 5) preclude the export of coins, banknotes or bearer cheques being made conditional on prior authorization but do not by contrast preclude a transaction of that nature being made conditional on a prior declaration.
15 Consequently it is necessary to answer the questions submitted since it is for the national court to determine both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.
The first question
19 Article 73b(1) of the Treaty gave effect to the liberalization of capital movements between Member States and between Member States and non-member countries. To that end, it provides that, within the framework of the provisions of Chapter 4 of the Treaty, entitled "Capital and payments", all restrictions on the movement of capital between Member States and non-member countries are to be prohibited.
22 It follows from paragraphs 21 and 22 of Bordessa that the measures which are necessary to prevent the commission of certain infringements and are permitted by Article 4(1) of the directive, in particular those designed to ensure effective fiscal supervision and to prevent illegal activities such as tax evasion, money laundering, drug trafficking or terrorism, are also covered by Article 73d(1)(b).
23 It is therefore necessary to consider whether the requirement of an authorization or a prior declaration for the export of coins, banknotes or bearer cheques is necessary in order to uphold the objectives pursued and whether those objectives might be attained by measures less restrictive of the free movement of capital.
24 As the Court held in paragraph 24 of Bordessa, authorization has the effect of suspending currency exports and makes them conditional in each case upon the consent of the administrative authorities, which must be sought by means of a special application.
25 The effect of such a requirement is to cause the exercise of the free movement of capital to be subject to the discretion of the administrative authorities and thus be such as to render that freedom illusory (see Bordessa, paragraph 25, and Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, paragraph 34).
26 However, the restriction on the free movement of capital resulting from that requirement could be eliminated without thereby detracting from the effective pursuit of the aims of those rules.
27 As the Commission has rightly pointed out, it would be sufficient to set up an adequate system of declarations indicating the nature of the planned operation and the identity of the declarant, which would require the competent authorities to proceed with a rapid examination of the declaration and enable them, if necessary, to carry out in due time the investigations found to be necessary to determine whether capital was being unlawfully transferred and to impose the requisite penalties if national legislation was being contravened.
28 Thus, unlike prior authorization, such a system of declarations would not suspend the operation concerned but would nevertheless enable the national authorities to carry out, in order to uphold public policy, effective supervision to prevent infringements of national law and regulations.
37 However, since Article 73c of the Treaty authorizes, under the conditions laid down therein and notwithstanding the prohibition laid down in Article 73b(1), certain restrictions on capital movements between Member States and non-member countries, the Member States are entitled to verify the nature and reality of the transactions and transfers in question, with a view to satisfying themselves that such transfers will not be used for the purposes of the capital movements which are specifically covered by the restrictions authorized by Article 73c (see, to that effect, Luisi and Carbone, paragraphs 31 and 33).
41 Article 73b(1) of the Treaty lays down a clear and unconditional prohibition for which no implementing measure is needed.
43 Exercise of the right reserved to Member States by Article 73d(1)(b) is amenable to judicial review, and therefore the fact that a Member State is able to rely on it does not prevent Article 73b(1) of the Treaty, which lays down the principle of free movement between the Member States and between Member States and non-member countries, from conferring rights on individuals which they may rely on before the courts and which the national courts must uphold.
47 It follows that that exception cannot preclude Article 73b(1) of the Treaty from conferring on individuals rights which they can rely on before the courts.
48 Consequently, the answer to the second question must be that Article 73b(1), in conjunction with Articles 73c and 73d(1)(b) of the Treaty, may be relied on before national courts and may render inapplicable national rules inconsistent therewith.