Free Movement of Capital between EU Member States and Third Countries: How Far Has the Door Been Closed?

Abstract

Among the many recent developments in European tax law that are worthwhile being highlighted and debated, there is one area that is of very high relevance in legal practice but has taken some twists and turns in the European Court of Justice’s (ECJ’s) case law, which have left both academics and practitioners in a state of confusion, and that is the scope of the free movement of capital in relation to non-EU countries. As a matter of fact, the problem has already been existing since 1 January 1994, the day on which the new provisions of the EC Treaty on capital movements entered into force (originally Article 73(a)–73(h) in the Maastricht version; now Articles 56–60). Not only did this step make the 1988 Directive on the liberalization of capital movements largely redundant for intra-EU situations between Member States, but it also reached beyond the EU’s outer frontiers, since Article 56(1) EC explicitly prohibits ‘all restrictions on the movement of capital between Member States and between Member States and third countries’.