Prunus SARL and Polonium SA v Directeur des services fiscaux.
Date: 2011-05-05
27. Under Article 64(1) TFEU, the prohibition of restrictions on the free movement of capital, within the meaning of Article 63 TFEU, is without prejudice to the application to non-Member States of any restrictions which existed on 31 December 1993 under national or European Union law adopted in respect of the movement of capital to or from such States involving direct investment, including investment in immovable property.
28. It is necessary to determine, first, whether, for the purposes of the application of the Treaty provisions on free movement of capital, OCTs are to be treated as Member States or non-Member States.
29. The Court has already held that the OCTs are subject to the special association arrangements set out in Part Four of the Treaty, with the result that, failing express reference, the general provisions of the Treaty, whose territorial scope is in principle confined to the Member States, do not apply to them (see Case C‑260/90 Leplat [1992] ECR I‑643, paragraph 10; Case C‑181/97 van der Kooy [1999] ECR I‑483, paragraph 37; Case C‑110/97 Netherlands v Council [2001] ECR I‑8763, paragraph 49; and Case C‑300/04 Eman and Sevinger [2006] ECR I‑8055, paragraph 46). OCTs therefore benefit from the provisions of European Union law in a similar manner to the Member States only when European Union law expressly provides that OCTs and Member States are to be treated in such a manner.
30. It should be noted that the EU and FEU Treaties do not contain any express reference to movements of capital between Member States and OCTs.
31. It follows that OCTs benefit from the liberalisation of the movement of capital provided for in Article 63 TFEU in their capacity as non‑Member States.
32. That interpretation is supported by the provisions of the Seventh OCT Decision, adopted at a time when the movement of capital in relation to non-Member States was liberalised. Article 47(2) of that decision states that Article 64 TFEU is applicable mutatis mutandis to OCTs.
33. It is necessary to examine next whether a restriction such as that at issue in the main proceedings, which concerns investments in immovable property, can be regarded as a restriction which existed on 31 December 1993.
34. The Court has already held that the words ‘restrictions which exist on 31 December 1993’ presuppose that the legal provisions relating to the restriction in question have formed part of the legal order of the Member State concerned continuously since that date. If that were not the case, a Member State could, at any time, reintroduce restrictions on the movement of capital to or from non-Member States which existed as part of the national legal order on 31 December 1993 but had not been maintained (Case C‑101/05 A [2007] ECR I‑11531, paragraph 48).
35. It is apparent from the case-file before the Court that the legislation at issue in the main proceedings was adopted by Law No 92‑1376 of 30 December 1992 establishing a finance law for 1993 (JORF No 304 of 31 December 1992), which entered into force on 1 January 1993. The restriction on the free movement of capital from OCTs imposed by that legislation therefore existed before 31 December 1993, the date stated in Article 64(1) TFEU.
36. Moreover, it is not disputed that there are only minor differences in the wording of the legislation in force on 31 December 1993 and that applicable during the 2001 and 2002 tax years at issue in the main proceedings, which do not in any way affect the inherent logic of the legal provisions that have formed part of the legal order of the Member State concerned continuously since 31 December 1993.
37. It follows that the restrictions imposed by national legislation such as that at issue in the main proceedings are permissible in relation to OCTs under Article 64(1) TFEU.