Odbor kompatibility s právem ES
Úřad vlády ČR
I S A P
Informační Systém pro Aproximaci Práva
Databáze č. 17 : Databáze judikatury
ă Odbor kompatibility s právem ES, Úřad vlády ČR - určeno pouze pro potřebu ministerstev a ostatních ústředních orgánů

Číslo (Kód CELEX):
Number (CELEX Code):		61982J0286
Název:
Title: 		JUDGMENT OF THE COURT OF 31 JANUARY 1984. GRAZIANA LUISI AND GIUSEPPE CARBONE V MINISTERO DEL TESORO. REFERENCE FOR A PRELIMINARY RULING FROM THE TRIBUNALE DI GENOVA. INVISIBLE TRANSACTIONS - NATIONAL MEASURES OF CONTROL. JOINED CASES 286/82 AND 26/83.
Publikace:
Publication:		REPORTS OF CASES 1984 PAGES 0377 - 0409
Předmět (klíčová slova):
Keywords		FREE MOVEMENT OF CAPITAL;BALANCE OF PAYMENTS;
Související předpisy:
Corresponding acts:		157E106;157E067
Odkaz na souvisejicí judikáty:
Corresponding Judgements:
    Casati Case 203/80 Casati [1981] ECR 2595
Plný text:
Fulltext:		Ne

Fakta:
Mrs Luisi and Mr Carbone insituted proceedings against decisions of the Ministro del Tesoro (Minister of the Treasury) imposing fines upon them for purchasing various foreign currencies for use abroad whose exchange value in Italian lire exceeded the maximum permitted by Italian law, which at that time was LIT 500 000
per annum
for the export of foreign currency by residents for the purposes of tourism, business, education and medical treatment. Mrs Luisi stated that she had exported the currency for the purpose of various visits to France and the Federal Republic of Germany as a tourist and in order to receive medical treatment in the latter country. Mr Carbone stated that the foreign currency purchased by him had been used for a stay of three months in the Federal Republic of Germany as a tourist. They submitted that the restrictions on the export of means of payment were contrary to the provisions of the EEC Treaty relating to current payments and the movement of capital.
The Tribunale di Genova stayed the proceedings and under Article 177 of the Treaty referred to the ECJ various questions which the Court restates as follows:
(a) whether tourism and travel for the purposes of business, education and medical treatment fall within the scope of services, or of invisible transactions within the meaning of Article 106 (3) of the Treaty, or of both categories at once;
Article 106 in the version in force at the time of the judgement provided:
(b) whether the transfer of foreign currency for those four purposes must be regarded as a current payment or as a movement of capital, in particular when bank notes are transferred physically;
(c) what degree of liberalization of payments relating to those four purposes is provided for in Article 106 of the Treaty;
(d) what control measures regarding transfers of foreign currency Member States are entitled to take in relation to the payments so liberalized.
The Court addresses these questions in turn.

Názor soudu a komentář:
The capital movement within the EC has been - and still is - liberalized only partly (Articles 67
et seq.
; cf.
Casati
). The transfer of money as a payment for services rendered or goods received etc., however, was, in principle, liberalized according to Article 106 (1) of the Treaty. These different levels of liberalization, of course, lead to difficulties since it was possible for nationals of Member States transfer banknotes under the cover of payment for services and thus to circumvent restrictions on the capital movement. The present judgement gives the guidelines for the necessary destinctions and points out which restrictions to intra-national payments could lawfully be upheld.
First, the relation between “services” (Article 60) and “invisible transactions (106 (3)) had to be deteremined. Services, according to Article 60 of the Treaty, are deemed to be ‘services’ within the meaning of the Treaty, where they are normally provided for remuneration, in so far as they are not governed by the provisions relating too the freedom of movement of goods, capital and persons. Restrictions to the freedom to provide services - including the freedom to receive services in another Member State
Cf. Article 1 of Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence for foreign nationals which are justified on grounds of public policy, public security or public health (OJ, English Special Edition 1963-1964, p. 117) which applies to nationals of a Member State who travel to another Member State “as a recipient of services”; see also Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services (OJ 1973, L 172, p. 14).
- are to be abolished according to Art. 59
et seq.
Title III of the General Programme for the Abolition of Restrictions on Freedom to Provide Services
OJ English Special Edition, Second Series IX, p. 3.
provides that the restrictions in the form of impediments to payments for services are to be abolished. The Member States have the right, though, “to verify the nature and genuineness of transfers of funds and of payments and to take all necessary measures in order to prevent contravention of their laws and regulations, ‘in particular as regards the issue of foreign currency to tourists’”. The Court concludes that “the freedom to provide services includes the freedom, for the recipient 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.” The provision on “invisible” transactions, contained in Article 106 (3), also covers tourism, private travel for the purpose of education and private travel on health grounds. That provision, however, is merely subordinate to Article 106 (1) and (2) and therefore does not presently apply.
“Current payments” (Article 67 (2)) are “transfers of foreign exchange which constitute the consideration within the context of an underlying transaction”. Movements of capital, on the other hand, are “financial operations essentially concerned with the investment of the funds in question rather than remuneration for a service”. “The physical transfer of bank notes may not therefore be classified as a movement of capital where the transfer in question corresponds to an obligation to pay arising from a transaction involving the movement of goods or services.” Payments in connection with tourism or business travel are therefore not movements of capital, even if they are effected by means of the physical transfer of bank notes.
As to the degree of liberalization of payments, the Court points out that according to Article 106 (1) payments for the movement of services are to be liberalized to the extent to which the movement of services itself has been liberalized. In that respect, Article 59 provides that restrictions to the movement of services had to be abolished during the transitional period. “Consequently, payments relating to tourism and travel for the purposes of business, education or medical treatment have been liberalized since the end of the transitional period.”
As to the control measures Member States may adopt, the Court points out that Articles 108 and 109 of the Treaty provide for controls which may be imposed in periods of crisis. In view of the fact that capital movements have not completely been liberalized (
Casati
), the “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.”

Shrnutí (Summary of the Judgment):
1. 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. TOURISTS, PER- SONS RECEIVING MEDICAL TREATMENT AND PERSONS TRAVELLING FOR THE PURPOSES OF EDUCATION OR BUSINESS ARE TO BE REGARDED AS RECIPIENTS OF SERVICES.

2.THE GENERAL SCHEME OF THE TREATY SHOWS, AND A COMPARISON BETWEEN ARTICLES 67 AND 106 CONFIRMS, THAT THE CURRENT PAYMENTS COVERED BY ARTICLE 106 ARE TRANSFERS OF FOREIGN EXCHANGE WHICH CONSTITUTE THE CONSIDERATION WITHIN THE CONTEXT OF AN UNDERLYING TRANSACTION, WHILST THE MOVEMENTS OF CAPITAL COVERED BY ARTICLE 67 ARE FINANCIAL OPERATIONS ESSENTIALLY CONCERNED WITH THE INVESTMENT OF THE FUNDS IN QUESTION RATHER THAN REMUNERATION FOR A SERVICE. FOR THAT REASON MOVEMENTS OF CAPITAL MAY THEMSELVES GIVE RISE TO CURRENT PAY- MENTS, AS IS IMPLIED BY ARTICLES 67 (2) AND 106 (1). THE PHYSICAL TRANSFER OF BANK NOTES MAY NOT THEREFORE BE CLASSIFIED AS A MOVEMENT OF CAPITAL WHERE THE TRANSFER IN QUESTION CORRESPONDS TO AN OBLIGATION TO PAY ARISING FROM A TRANSACTION INVOLVING THE MOVEMENT OF GOODS OR SERVICES.

3.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.

4.ARTICLE 106 OF THE TREATY MUST BE INTERPRETED AS MEANING THAT : TRANSFERS IN CONNECTION WITH TOURISM OR TRAVEL FOR THE PURPOSES OF BUSINESS, EDUCATION OR MEDICAL TREATMENT CONSTITUTE PAYMENTS AND NOT MOVEMENTS OF CAPITAL, EVEN WHERE THEY ARE EFFECTED BY MEANS OF THE PHYSICAL TRANSFER OF BANK NOTES; ANY RESTRICTIONS ON SUCH PAYMENTS ARE ABOLISHED AS FROM THE END OF THE TRANSITIONAL PERIOD; MEMBER STATES RETAIN THE POWER TO VERIFY THAT TRANSFERS OF FOREIGN CURRENCY PURPORTEDLY INTENDED FOR LIBERALIZED PAYMENTS ARE NOT IN REALITY USED FOR UNAUTHORIZED MOVEMENTS OF CAPITAL; CONTROLS INTRODUCED FOR THAT PURPOSE 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, OR OF RENDERING ILLUSORY THE FREEDOMS RECOGNIZED BY THE TREATY OR OF SUBJECTING THE EXERCISE THEREOF TO THE DISCRETION OF THE ADMINISTRATIVE AUTHORITIES; SUCH CONTROLS MAY INVOLVE THE FIXING OF FLAT-RATE LIMITS BELOW WHICH NO VERIFICATION
IS CARRIED OUT, WHEREAS IN THE CASE OF EXPENDITURE EXCEEDING THOSE LIMITS PROOF IS REQUIRED THAT THE AMOUNTS TRANSFERRED HAVE ACTUALLY BEEN USED IN CONNECTION WITH THE PROVISION OF SERVICES, PROVIDED HOWEVER THAT THE FLAT-RATE LIMITS SO DETERMINED ARE NOT SUCH AS TO AFFECT THE NORMAL PATTERN OF THE PROVISION OF SERVICES.

Plný text judikátu (Entire text of the Judgment):