Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro.
Date: 1984-01-31
10 BY VIRTUE OF ARTICLE 59 OF THE TREATY , RESTRICTIONS ON FREEDOM TO PROVIDE SUCH SERVICES ARE TO BE ABOLISHED IN RESPECT OF NATIONALS OF MEMBER STATES WHO ARE ESTABLISHED IN A MEMBER STATE OTHER THAN THAT OF THE PERSON FOR WHOM THE SERVICE IS INTENDED . IN ORDER TO ENABLE SERVICES TO BE PROVIDED , THE PERSON PROVIDING THE SERVICE MAY GO TO THE MEMBER STATE WHERE THE PERSON FOR WHOM IT IS PROVIDED IS ESTABLISHED OR ELSE THE LATTER MAY GO TO THE STATE IN WHICH THE PERSON PROVIDING THE SERVICE IS ESTABLISHED . WHILST THE FORMER CASE IS EXPRESSLY MENTIONED IN THE THIRD PARAGRAPH OF ARTICLE 60 , WHICH PERMITS THE PERSON PROVIDING THE SERVICE TO PURSUE HIS ACTIVITY TEMPORARILY IN THE MEMBER STATE WHERE THE SERVICE IS PROVIDED , THE LATTER CASE IS THE NECESSARY COROLLARY THEREOF , WHICH FULFILS THE OBJECTIVE OF LIBERALIZING ALL GAINFUL ACTIVITY NOT COVERED BY THE FREE MOVEMENT OF GOODS , PERSONS AND CAPITAL .
16 IT FOLLOWS THAT THE FREEDOM TO PROVIDE SERVICES INCLUDES THE FREEDOM , FOR THE RECIPIENTS OF SERVICES , TO GO TO ANOTHER MEMBER STATE IN ORDER TO RECEIVE A SERVICE THERE , WITHOUT BEING OBSTRUCTED BY RESTRICTIONS , EVEN IN RELATION TO PAYMENTS AND THAT TOURISTS , PERSONS RECEIVING MEDICAL TREATMENT AND PERSONS TRAVELLING FOR THE PURPOSE OF EDUCATION OR BUSINESS ARE TO BE REGARDED AS RECIPIENTS OF SERVICES .
28 IN THAT RESPECT , IT SHOULD BE NOTED IN THE FIRST PLACE THAT THE LIBERALIZATION OF PAYMENTS PROVIDED FOR IN ARTICLE 106 COMPELS MEMBER STATES TO AUTHORIZE THE PAYMENTS REFERRED TO IN THAT PROVISION IN THE CURRENCY OF THE MEMBER STATE IN WHICH THE CREDITOR OR BENEFICIARY RESIDES . PAYMENTS MADE IN THE CURRENCY OF A THIRD COUNTRY ARE NOT THEREFORE COVERED BY THAT PROVISION .
31 IN THOSE CIRCUMSTANCES , MEMBER STATES HAVE RETAINED THE POWER TO IMPOSE CONTROLS ON TRANSFERS OF FOREIGN CURRENCY IN ORDER TO VERIFY THAT TRANSFERS DO NOT IN FACT CONSTITUTE MOVEMENTS OF CAPITAL , WHICH HAVE NOT BEEN LIBERALIZED . THAT POWER IS PARTICULARLY IMPORTANT SINCE IT IS BOUND UP WITH THE RESPONSIBILITY WHICH MEMBER STATES HAVE IN RELATION TO MONETARY MATTERS UNDER ARTICLES 104 AND 107 OF THE TREATY , A RESPONSIBILITY WHICH IMPLIES THAT APPROPRIATE MEASURES MAY BE ADOPTED IN ORDER TO PREVENT THE FLIGHT OF CAPITAL OR OTHER SPECULATION OF THAT KIND AGAINST THEIR CURRENCIES .
33 IN THE ABSENCE OF ANY CRISIS AND UNTIL THE FREE MOVEMENT OF CAPITAL HAS BEEN FULLY ACHIEVED , IT MUST THEREFORE BE ACKNOWLEDGED THAT MEMBER STATES ARE EMPOWERED TO VERIFY THAT TRANSFERS OF FOREIGN CURRENCY PURPORTEDLY INTENDED FOR LIBERALIZED PAYMENTS ARE NOT DIVERTED FROM THAT PURPOSE AND USED FOR UNAUTHORIZED MOVEMENTS OF CAPITAL . IN THAT CONNECTION , MEMBER STATES ARE ENTITLED TO VERIFY THE NATURE AND GENUINENESS OF THE TRANSACTIONS OR TRANSFERS IN QUESTION .
34 CONTROLS INTRODUCED FOR THAT PURPOSE MUST , HOWEVER , BE KEPT WITHIN THE LIMITS IMPOSED BY COMMUNITY LAW , IN PARTICULAR THOSE DERIVING FROM THE FREEDOM TO PROVIDE SERVICES AND TO MAKE PAYMENTS RELATING THERETO . CONSEQUENTLY , THEY MAY NOT HAVE THE EFFECT OF LIMITING PAYMENTS AND TRANSFERS IN CONNECTION WITH THE PROVISION OF SERVICES TO A SPECIFIC AMOUNT FOR EACH TRANSACTION OR FOR A GIVEN PERIOD , SINCE IN THAT CASE THEY WOULD INTERFERE WITH THE FREEDOMS RECOGNIZED BY THE TREATY . FOR THE SAME REASON , SUCH CONTROLS MAY NOT BE APPLIED IN SUCH A MANNER AS TO RENDER THOSE FREEDOMS ILLUSORY OR TO SUBJECT THE EXERCISE THEREOF TO THE DISCRETION OF THE ADMINISTRATIVE AUTHORITIES .