Finanzamt Ulm v Ingeborg Wagner-Raith.
Date: 2015-05-21
21. Article 64(1) TFEU sets out an exhaustive list of capital movements to which Article 63(1) TFEU is liable not to apply and, as a derogation from the fundamental principle of the free movement of capital, it must be interpreted strictly (see judgment in Case C‑181/12 Welte , EU:C:2013:662, paragraph 29).
23. In the absence of a definition of ‘movement of capital’ in the FEU Treaty, the Court has recognised the nomenclature that constitutes Annex I to Directive 88/361 as having indicative value, it being understood that, as pointed out in the introduction to that annex, the list which it contains is not exhaustive (see inter alia, to this effect, judgments in van Hilten-van der Heijden , C‑513/03, EU:C:2006:131, paragraph 39; Missionswerk Werner Heukelbach , C‑25/10, EU:C:2011:65, paragraph 15; and Welte , C‑181/12, EU:C:2013:662, paragraph 20).
24. The acquisition by residents of units of foreign undertakings dealt in or not dealt in on a stock exchange is among the capital movements set out in part A, relating to ‘[t]ransactions in units of collective investment undertakings’ of Section IV (‘Operations in units of collective investment undertakings’) of Annex I to Directive 88/361.
25. Although the receipt of dividends from a collective investment undertaking is not expressly mentioned in that nomenclature as a ‘capital movement’, it may be linked to the acquisition by residents of units of foreign undertakings dealt in or not dealt in on a stock exchange and, therefore, is indissociable from a capital movement (see, to this effect, judgment in Verkooijen , C‑35/98, EU:C:2000:294, paragraph 29).
30. The Court has already held that it is apparent from the wording of Article 56 TFEU and Article 63 TFEU, and the position which they occupy in two different chapters of Title IV of the Treaty, that, although closely linked, those provisions were designed to regulate different situations and they each have their own field of application (see, to this effect, judgment in Fidium Finanz , C‑452/04, EU:C:2006:631, paragraph 28).
31. It is apparent from settled case-law of the Court that, in order to determine whether national legislation falls within the scope of one or other of the fundamental freedoms guaranteed by the Treaty, the purpose of the legislation concerned must be taken into consideration (see, to this effect, judgments in Holböck , C‑157/05, EU:C:2007:297, paragraph 22 and the case-law cited; Dijkman and Dijkman-Lavaleije , C‑233/09, EU:C:2010:397, paragraph 26; and Test Claimants in the FII Group Litigation , C‑35/11, EU:C:2012:707, paragraph 90).
33. Indeed, the Court has already held that national rules whereby a Member State makes the granting of credit on a commercial basis, on national territory, by a company established in a third country subject to prior authorisation, and which thus impede access to the financial market for that company, affect primarily the exercise of the freedom to provide services within the meaning of Article 56 TFEU et seq. (judgment in Fidium Finanz , C‑452/04, EU:C:2006:631, paragraphs 49 and 50).
36. The interpretation that Article 64(1) TFEU is not intended to cover situations falling within the freedom to provide services is also confirmed by the fact that, in contrast to the chapter concerning the free movement of capital, the chapter regulating the freedom to provide services does not contain any provision which enables service providers who are nationals of third countries and established outside the European Union to rely on those provisions, as the objective of the latter chapter is to secure the freedom to provide services for nationals of Member States (judgment in Fidium Finanz , C‑452/04, EU:C:2006:631, paragraph 25).
39. Next, as the Advocate General has observed in point 74 of his Opinion, the decisive criterion for the application of Article 64(1) TFEU is concerned with the causal link between the capital movements and the provision of financial services and not with the personal scope of the contested national measure or its relationship with the provider, rather than the recipient, of such services. As has already been pointed out in paragraph 21 of the present judgment, the field of application of Article 64(1) TFEU is defined by reference to the categories of capital movements which are capable of being subject to restrictions.
40. Consequently, the fact that a national measure concerns first and foremost the investor and not the provider of a financial service cannot prevent that measure from falling within Article 64(1) TFEU.
41. Finally, contrary to the Commission’s submissions, it is clear from the Court’s settled case-law that the tax legislation of the Member States is capable of falling within Article 64(1) TFEU (see, inter alia, judgments in Test Claimants in the FII Group Litigation , C‑446/04, EU:C:2006:774, paragraphs 174 to 196; Holböck , C‑157/05, EU:C:2007:297, paragraphs 37 to 45; and Prunus and Polonium , C‑384/09, EU:C:2011:276, paragraphs 27 to 37).
43. Accordingly, in order to be capable of being covered by that derogation, the national measure must relate to capital movements that have a sufficiently close link with the provision of financial services.
44. As the Advocate General has stated in point 74 of his Opinion, in order for there to be a sufficiently close link, it is necessary that a causal link exists between the movement of capital and the provision of financial services.
45. It follows that national legislation which, in applying to capital movements to or from third countries, restricts the provision of financial services falls within Article 64(1) TFEU (see, by analogy with capital movements involving direct investment or establishment within the meaning of Article 64(1) TFEU, judgments in Test Claimants in the FII Group Litigation , C‑446/04, EU:C:2006:774, paragraph 183, and Holböck , C‑157/05, EU:C:2007:297, paragraph 36).