Criminal proceedings against Guerrino Casati.
Date: 1981-11-11
8 THE FIRST QUESTION CONCERNS THE EFFECTS OF ARTICLE 67 AND , MORE PARTICULARLY , ARTICLE 67 ( 1 ), AFTER THE EXPIRY OF THE TRANSITIONAL PERIOD . THAT ARTICLE HEADS THE CHAPTER ON CAPITAL WHICH BELONGS TO TITLE II , ' ' FREE MOVEMENT OF PERSONS , SERVICES AND CAPITAL ' ' , INCORPORATED IN PART TWO OF THE EEC TREATY , ENTITLED ' ' FOUNDATIONS OF THE COMMUNITY ' ' . THE GENERAL SCHEME OF THOSE PROVISIONS IS     IN KEEPING WITH THE LIST , SET OUT IN ARTICLE 3 OF THE EEC TREATY , OF THE METHODS PROVIDED FOR THE ATTAINMENT OF THE COMMUNITY ' S OBJECTIVES . THOSE METHODS INCLUDE , ACCORDING TO ARTICLE 3 ( C ) ' ' THE ABOLITION , AS BETWEEN MEMBER STATES , OF OBSTACLES TO FREEDOM OF MOVEMENT FOR PERSONS , SERVICES AND CAPITAL ' ' . THUS THE FREE MOVEMENT OF CAPITAL CONSTITUTES , ALONGSIDE THAT OF PERSONS AND SERVICES , ONE OF THE FUNDAMENTAL FREEDOMS OF THE COMMUNITY . FURTHERMORE , FREEDOM TO MOVE CERTAIN TYPES OF CAPITAL IS , IN PRACTICE , A PRE-CONDITION FOR THE EFFECTIVE EXERCISE OF OTHER FREEDOMS GUARANTEED BY THE TREATY , IN PARTICULAR THE RIGHT OF ESTABLISHMENT .
9 HOWEVER , CAPITAL MOVEMENTS ARE ALSO CLOSELY CONNECTED WITH THE ECONOMIC AND MONETARY POLICY OF THE MEMBER STATES . AT PRESENT , IT CANNOT BE DENIED THAT COMPLETE FREEDOM OF MOVEMENT OF CAPITAL MAY UNDERMINE THE ECONOMIC POLICY OF ONE OF THE MEMBER STATES OR CREATE AN IMBALANCE IN ITS BALANCE OF PAYMENTS , THEREBY IMPAIRING THE PROPER FUNCTIONIMG OF THE COMMON MARKET .
10 FOR THOSE REASONS , ARTICLE 67 ( 1 ) DIFFERS FROM THE PROVISIONS ON THE FREE MOVEMENT OF GOODS , PERSONS AND SERVICES IN THE SENSE THAT THERE IS AN OBLIGATION TO LIBERALIZE CAPITAL MOVEMENTS ONLY ' ' TO THE EXTENT NECESSARY TO ENSURE THE PROPER FUNCTIONING OF THE COMMON MARKET ' ' . THE SCOPE OF THAT RESTRICTION , WHICH REMAINED IN FORCE AFTER THE EXPIRY OF THE TRANSITIONAL PERIOD , VARIES IN TIME AND DEPENDS ON AN ASSESSMENT OF THE REQUIREMENTS OF THE COMMON MARKET AND ON AN APPRAISAL OF BOTH THE ADVANTAGES AND RISKS WHICH LIBERALIZATION MIGHT ENTAIL FOR THE LATTER , HAVING REGARD TO THE STAGE IT HAS REACHED AND , IN PARTICULAR , TO THE LEVEL OF INTEGRATION ATTAINED IN MATTERS IN RESPECT OF WHICH CAPITAL MOVEMENTS ARE PARTICULARLY SIGNIFICANT .
11 SUCH AN ASSESSMENT IS , FIRST AND FOREMOST , A MATTER FOR THE COUNCIL , IN ACCORDANCE WITH THE PROCEDURE PROVIDED FOR BY ARTICLE 69 . THE COUNCIL HAS ADOPTED TWO DIRECTIVES UNDER THAT ARTICLE , THE FIRST ON 11 MAY 1960 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1959-1962 , P.49 ) AND THE SECOND , WHICH ADDS TO AND AMENDS THE FIRST , ON 18 DECEMBER 1962 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P.5 ). ALL THE MOVEMENTS OF CAPITAL ARE DIVIDED INTO FOUR LISTS ( A , B , C & D ) ANNEXED TO THE DIRECTIVES . IN THE CASE OF THE MOVEMENTS COVERED BY LISTS A AND B , UNCONDITIONAL LIBERALIZATION IS PRESCRIBED BY THE DIRECTIVES . HOWEVER , IN THE CASE OF THE MOVEMENTS COVERED BY LIST C , THE DIRECTIVES AUTHORIZE THE MEMBER STATES TO MAINTAIN OR TO RE-    IMPOSE THE EXCHANGE RESTRICTIONS IN EXISTENCE ON THE DATE OF THE ENTRY INTO FORCE OF THE FIRST DIRECTIVE IF THE FREEDOM OF MOVEMENT OF CAPITAL IS CAPABLE OF FORMING AN OBSTACLE TO THE ACHIEVEMENT OF THE ECONOMIC POLICY OBJECTIVES OF THE STATE CONCERNED . FINALLY , IN THE CASE OF THE MOVEMENTS REFERRED TO IN LIST D , THE DIRECTIVES DO NOT REQUIRE THE MEMBER STATES TO ADOPT ANY LIBERALIZING MEASURES . LIST D COVERS , INTER ALIA , THE PHYSICAL IMPORTATION AND EXPORTATION OF FINANCIAL ASSETS , INCLUDING BANK NOTES .
12 THE CONCLUSION MUST BE DRAWN THAT THE OBLIGATION CONTAINED IN ARTICLE 67 ( 1 ) TO ABOLISH RESTRICTIONS ON MOVEMETS OF CAPITAL CANNOT BE DEFINED , IN RELATION TO A SPECIFIC CATEGORY OF SUCH MOVEMENTS , IN ISOLATION FROM THE COUNCIL ' S ASSESSMENT UNDER ARTICLE 69 OF THE NEED TO LIBERALIZE THAT CATEGORY IN ORDER TO ENSURE THE PROPER FUNCTIONING OF THE COMMON MARKET . THE COUNCIL HAS SO FAR TAKEN THE VIEW THAT IT IS UNNECESSARY TO LIBERALIZE THE EXPORTATION OF BANK NOTES , THE OPERATION WITH WHICH THE ACCUSED IN THE MAIN PROCEEDINGS IS CHARGED , AND THERE IS NO REASON TO SUPPOSE THAT , BY ADOPTING THAT POSITION , IT HAS OVERSTEPPED THE LIMITS OF ITS DISCRETIONARY POWER .
13 THE ANSWER TO THE FIRST QUESTION SHOULD THEREFORE BE THAT ARTICLE 67 ( 1 ) MUST BE INTERPRETED AS MEANING THAT RESTRICTIONS ON THE EXPORTATION OF BANK NOTES MAY NOT BE REGARDED AS ABOLISHED AS FROM THE EXPIRY OF THE TRANSITIONAL PERIOD , IRRESPECTIVE OF THE PROVISIONS OF ARTICLE 69 .
27 IN PRINCIPLE , CRIMINAL LEGISLATION AND THE RULES OF CRIMINAL PROCEDURE ARE MATTERS FOR WHICH THE MEMBER STATES ARE STILL RESPONSIBLE . HOWEVER , IT IS CLEAR FROM A CONSISTENT LINE OF CASES DECIDED BY THE COURT , THAT COMMUNITY LAW ALSO SETS CERTAIN LIMITS IN THAT AREA AS REGARDS THE CONTROL MEASURES WHICH IT PERMITS THE MEMBER STATES TO MAINTAIN IN CONNECTION WITH THE FREE MOVEMENT OF GOODS AND PERSONS . THE ADMINISTRATIVE MEASURES OR PENALTIES MUST NOT GO BEYOND WHAT IS STRICTLY NECESSARY , THE CONTROL PROCEDURES MUST NOT BE CONCEIVED IN SUCH A WAY AS TO RESTRICT THE FREEDOM REQUIRED BY THE TREATY AND THEY MUST NOT BE ACCOMPANIED BY A PENALTY WHICH IS SO DISPROPORTIONATE TO THE GRAVITY OF THE INFRINGEMENT THAT IT BECOMES AN OBSTACLE TO THE EXERCISE OF THAT FREEDOM .