European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Article 63 TFEU prohibits all restrictions on the movements of capital but does not define the concept of capital itself. According to the Court of Justice , movements of capital are financial operations essentially concerned with the investment of the funds in question rather than remuneration for a service. In order to determine whether an operation falls within the scope of application of Artic …

Movements of capital

Article 63 TFEU prohibits all restrictions on the movements of capital but does not define the concept of capital itself. According to the Court of Justice , movements of capital are financial operations essentially concerned with the investment of the funds in question rather than remuneration for a service. In order to determine whether an operation falls within the scope of application of Article 63, the EU court traditionally refers to the nomenclature reproduced in Annex 1 of Directive No 88/361, which provided a non-exhaustive list of capital movements . The receipt of dividends from a collective investment undertaking which is not expressly mentioned in that nomenclature as a “capital movement”, 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 . 

Movements of capital cover all the operations necessary for capital movements, i.e. conclusion and performance of the transaction and related transfers. The transaction is generally between residents of different Member States - natural or legal persons - although some capital movements are carried out by a single person for his own account. 

Direct investments , investments in real estate , operations in securities normally dealt in on the capital market - receipt of dividends  or a resale of shares , acquisition of bonds denominated in national currency  or shares in a capital company , portfolio investment with the sole intention of making a financial investment  - share transactions in collective investment enterprises, transactions in securities and other instruments normally dealt in on the money market, transactions on current or deposit accounts with financial institutions, credits related to commercial transactions or to the provision of services, financial loans and credits, guarantees, creditors' rights and securities ,  financial loans and credits, as well as transactions on current and deposit accounts with financial institutions, particularly credit institutions , transfers in performance of insurance contracts, personal capital movements, and the material import and export of securities, all constitute movements of capital.

Case 286/82 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377, LawLex200900001498JBJ, which stresses that movements of capital may themselves give rise to current payments.

The list still has an indicative value even though the directive was adopted on the basis of Articles 69 and 70(1) EEC, since replaced by Article 63 TFEU: Case C-222/97 Trummer and Mayer [1999] ECR I-1661, LawLex200700001808JBJ: on the prohibition of registering a mortgage in the currency of another Member State; Case C-446-04 Test Claimants in the FII Group v Commissioners of Inland Revenue [2006] ECR I-11753, LawLex200900000863JBJ, on the concept of direct investments within the meaning of Article 64 TFEU in their application to capital movements to or from non-member countries.

Case C-578/10 Staassecretaris van Financiën, Judgment of 26 April 2012, LawLex201200000963JBJ.

Case C-78/21 AS “PrivatBank” et Unimain Holdings LTD, Judgment of 12 March 2023, LawLex202400004395JBJ.

Case C-560/13 Finanzamt Ulm, Judgment of 21 May 2015, LawLex201500000647JBJ.

Case C-174/04 Commission v Italy [2005] ECR I-4933, LawLex200900000729JBJ: the shareholding in an undertaking and the acquisition of securities in particular characterized by the possibility of participating effectively in its management and control; Case C-282/04 Commission v Netherlands [2006] ECR I-9141, LawLex200900001404JBJ.

The right to acquire, exploit and transfer immovable property on the territory of another Member State constitutes movement of capital within the meaning of Article 63 TFEU: Case C-515/99 Reisch and others [2002] ECR I-2157, LawLex200900001022JBJ; Case C-386/04 Centro di Musicologia Walter Stauffer [2006] ECR I-8203, LawLex200900000621JBJ: Case C-222/97 Trummer and Mayer [1999] ECR I-1661, LawLex200700001808JBJ, re: the liquidation of a mortgage; Case C-364/01 The heirs of M.H. Barbier v Inspector van de Belastingdienst Particulieren/Ondernemingen buitenland te Heerlen [2003] ECR I-15013, LawLex200900000528JBJ, re: the transfer of immovable property by its sole owner to a private company in which he holds all the shares; Case C-513/03 The heirs of Van Hilten-van der Heijden v Inspector van de Belastingdienst Particulieren/Ondernemingen buitenland te Heerlen [2006] ECR I-1957, LawLex200900001020JBJ; Case C-256/06 Jäger [2008] ECR I-123, LawLex200900001001JBJ, classifying inheritances as movements of capital. 

Case C-35/98 Verkooijen [2000] ECR I-4071, LawLex200700001589JBJ.

Case C-265/04 Bouanich v Skatteverket [2006] ECR I-923, LawLex200900001312JBJ.

Case C-329/03 Trapeza tis Ellados v Banque Artesia [2005] ECR I-9341, LawLex200900000367JBJ.

Case C-182/08 Glaxo Wellcome [2009] ECR I-8591, LawLex201100000649JBJ.

Case C-282/04 Commission v Netherlands [2006] ECR I-9141, LawLex200900001404JBJ.

European Business Law

152. Movements of capital

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

152. Movements of capital

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise