X v Staatssecretaris van Financiën.
Date: 2017-02-15
21


In that regard, it should be noted, first, that it is apparent from the wording of Article 64(1) TFEU that that provision contains a derogation from the prohibition laid down in Article 63(1) TFEU in favour of the ‘application’ of any restrictions which existed on 31 December 1993 under national law adopted in respect of the movement of capital involving direct investment, establishment, the provision of financial services or the admission of securities to capital markets. Thus, the applicability of Article 64(1) TFEU depends, not on the purpose of the national legislation containing such restrictions, but on its effect. That provision applies to the extent to which that national legislation imposes a restriction on movements of capital involving direct investment, establishment, the provision of financial services or the admission of securities to capital markets. Accordingly, the fact that that legislation may also apply to other situations is not such as to preclude Article 64(1) TFEU from being applicable in the circumstances which it covers.
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Secondly, that interpretation is confirmed by the Court’s case-law. According to that case-law, a restriction on capital movements, such as a less favourable tax treatment of foreign-sourced dividends, comes within the scope of Article 64(1) TFEU, inasmuch as it relates to holdings acquired with a view to establishing or maintaining lasting and direct economic links between the shareholder and the company concerned and which allow the shareholder to participate effectively in the management of the company or in its control (judgment of 24 November 2016, SECIL, C‑464/14, EU:C:2016:896, paragraph 78 and the case-law cited). Similarly, according to the Court, a restriction is covered by Article 64(1) TFEU as being a restriction on the movement of capital involving direct investment in so far as it relates to investments of any kind undertaken by natural or legal persons and which serve to establish or maintain lasting and direct links between the persons providing the capital and the undertakings to which that capital is made available in order to carry out an economic activity (see, to that effect, judgment of 20 May 2008, Orange European Smallcap Fund, C‑194/06, EU:C:2008:289, paragraph 102). It is clear from those judgments, and, in particular, from their use of the phrases ‘inasmuch as’ and ‘in so far as’, that the scope of Article 64(1) TFEU does not depend on the specific purpose of a national restriction, but on its effect on the movements of capital referred to in that provision.
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In that regard, it should first be pointed out that, in the absence of a definition of ‘movement of capital’ in the TFEU, 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 (judgment of 21 May 2015, Wagner-Raith, C‑560/13, EU:C:2015:347, paragraph 23 and the case-law cited). Nevertheless, as the Commission observed in its observations submitted to the Court, that annex makes reference, under Heading VI, to ‘operations in current and deposit accounts with financial institutions’, which include ‘operations carried out by residents with foreign financial institutions’. Accordingly, the opening of a securities account with a banking institution, such as that at issue in the main proceedings, comes within the concept of ‘movement of capital’.
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Secondly, the Court has held that, in order to be capable of being covered by the derogation provided for in Article 64(1) TFEU, the national measure must relate to capital movements that have a sufficiently close link with the provision of financial services, which requires that there be a causal link between the movement of capital and the provision of financial services (see, to that effect, judgment of 21 May 2015, Wagner-Raith, C‑560/13, EU:C:2015:347, paragraphs 43 and 44).
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In that regard, it should be noted that 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. The field of application of that provision is defined by reference to the categories of capital movements which are capable of being subject to restrictions (judgment of 21 May 2015, Wagner-Raith, C‑560/13, EU:C:2015:347, paragraph 39).
34


Consequently, the fact that a national measure concerns first and foremost the investor and not the provider of a financial service cannot preclude that measure from coming within the scope of Article 64(1) TFEU (judgment of 21 May 2015, Wagner-Raith, C‑560/13, EU:C:2015:347, paragraph 40). Likewise, the fact that a national measure bears no relation to the conditions or mechanisms of the provision of a financial service cannot preclude that measure from coming within the scope of that provision.