CARACTERIZACIÓN DE LA MATERIA PRIMA DE LOS EXPERIMENTOS DEL AGUA DE LAVADO

Article 64 TFEU states that free movement of capital applies to ‘direct investment –

including in real estate – establishment, the provision of financial services or the admission of securities of capital market’, although there is no clear definition of the word ‘capital’. The Court in Trummer40 accepted a list of categories of capital in Directive 88/361/EEC.41 The movement of capital is related to commercial transaction in the expectation of profit, for example, direct investment, investment in real estate, operation in securities normally dealt in on the capital market, operation in units of collective investment undertakings, operation in securities and other instruments normally dealt in on the money market. Other measures, including operations in current and deposit accounts with financial institution, credits related to commercial transactions or to the provision of services in which a resident is participating, financial loan and credits, sureties, other guarantees and rights of pledge, transfers in performance of insurance contracts, may also fall within the former group. Personal capital movements, whether by physical import and export of financial assets, or by other means, are not undertaken in the expectation of profit.

Free and Not so Free Movement of Goods since Keck’ (1997) 6(2) Irish Journal of European Law p166 at 172-173.

39

For example, Case C-124/97, Laara v Kihlakunnansyyttaja (Jyvaskyla) [2001] 2 CMLR 14; Case 67/98,

Questore di Verona v Zenatti [2000] 1 CMLR 201; Case C-243/01, Gambelli and Others [2006] 1

CMLR 35; and Case C-153/08, Commission v Spain [2010] 1 CMLR 30. 40

Case C-222/97, Re the Application to Register Land by Manfred Trummer and Pepter Mayer [2000] 3 CMLR 1143.

41

Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty, Official Journal L 178, 08/07/1988 p5, see Annex I. The capital includes direct investment, investment in real estate, operation in securities normally dealt in on the capital market, operation in units of collective investment undertakings, operation in securities and other instruments normally dealt in on the money market, operation in current and deposit accounts with financial institutions, credits related to commercial transactions or to the provision of services in which a resident is participating, financial loan and credits, sureties, other guarantees and rights of pledge, transfers in performance of insurance contracts, personal capital movement, physical import and export of financial assets, and other capital movements. It was also pointed out that this was not an exhaustive list for the notion of capital movements.

Free movement of establishment is not defined in the Treaties or other legislation but in the case law. Factortame42 suggested that free movement of establishment is ‘the actual

pursuit of an economic activity through a fixed establishment in another member-State for an indefinite period’.43 This definition not only includes undertakings setting up a fixed establishment for economic activities, but also includes a person who pursuit of a professional activity on a stable and continuous basis.44 The relevant law extends to restrictions on the setting up of agencies, branches or subsidiaries by nationals.45

There is an obvious change in the wording of the provisions. Article 63 TFEU prohibits all restrictions on movement of capital and payment while the original Article 67 EEC also contained that ‘any discrimination based on the nationality or on the place of residence of the parties or on the place where such capital is invested’46 should be progressively abolished. It seems that Article 63 TFEU has removed the discriminating approach to applying restrictions of movement of capital. Nevertheless, two cases, Konle47 and Portuguese (Golden Shares),48 show that the Court sometimes not only accepts State measures with discriminatory effect on grounds of nationality but also restrictions on free movement of capital, even though without any discrimination. In Spain (Golden Shares)49 and United Kingdom (Golden Shares),50 the Court further held that the relevant restrictions on investment operations still affected access to the market, although these restrictions had

42

Case C-221/89, Regina v Secretary of State for Transport [1991] 3 CMLR 589. 43

Ibid., para. 20. 44

See Case C-55/94, Reinhard Gebhard v Consiglio Dell’Ordine degli Avvocati E Procuratori di Milano [1996] 1 CMLR 603, para. 28; also see J. Fairhurst, Law of the European Union, 7th Edition, (2009) Longman at 430.

45

See Article 49 TFEU. 46

See Article 67 EEC. 47

Case C-307/97, Klaus Konle v Austria [2000] 2 CMLR 963, paras. 23 and 24: ‘Section 10(2) of the TGVG 1993 … creates a discriminatory restriction against nationals of other Member States in respect of capital movements between Member States. Such discrimination is prohibited by Article 56 EC, unless it is justified on grounds permitted by the Treaty’.

48

Case C-367/98, Re Golden shares: EC Commission v Portugal [2002] 2 CMLR 48, paras. 44 and 45. ‘Article 73b of the Treaty lays down a general prohibition on restrictions on the movement of capital between Member States. That prohibition goes beyond the mere elimination of unequal treatment, on grounds of nationality, as between operators on the financial markets. Even though the rules in issue may not give rise to unequal treatment, they are liable to impede the acquisition of shares in the undertakings concerned and to dissuade investors in other Member States from investing in the capital of those undertakings.’

49

Case C-463/00, Commission v Spain (Re Golden Shares) [2003] 2 CMLR 18. 50

no discriminative treatments to both residents and non-residents.51

Cases on free movement of establishment, for example Fearon52 in 1985, Commission v Belgium53 in 1988 and Commission v Greece54 in 1991, show that restrictions without discrimination will not fall within Article 49 TFEU. However in other cases, for example, Klopp55 in 1984, Stanton56in 1988 and Kemmler57 in 1996, the Court changed its mind that Article 49 TFEU would not apply unless the exercise of the rights of establishment ‘is discriminatory or constitutes an obstacle which is manifestly excessive or objectively contrary to the public interest’58 and considered that national legislation maybe apply without distinction to all self-employed persons working in another member State and discrimination based on nationality of those person.59 From the dates of those judgments, it is clear that the examination standards of the Court were not always unanimous. In Gebhard the Court finally accepted the non-discrimination approach instead of the discrimination approach and it has been affirmed in a series of later cases.60

The objective of the application test in free movement of capital and establishment cases is similar to the development of free movement on goods and services and has moved from a discrimination-based to a non-discrimination approach. However the processes in capital and establishment are more complex than others because the Court did not have a clear dividing line on distinguishing between restrictions and discrimination when the judgements were made.61

51

See Case C-463/00, Spain (Re Golden Shares), note 49, para.61 and Ibid., para. 47. 52

Case 182/83, Fearon v Irish Land Commission [1985] 2 CMLR 228, para. 11. 53

Case C-221/85, Commission v Belgium [1988] 1 CMLR 620, paras. 10 and 11. 54

Case C-305/87, Commission v Greece [1991] 1 CMLR 611, para. 20. 55

Case 107/83, Ordre des Avocats v Klopp [1985] 1 CMLR 99. 56

Case 143/87, Stanton v INASTI [1989] 3 CMLR 761. 57

Case C-53/95, INASTI v Kemmler [1996] ECR I-703. 58

See Case 107/83, Klopp, note 55, para. 7. 59

See Case 143/87, Stanton v INASTI, note 56, para. 9. 60

See Case C-55/94, Gebhard, note 44, para. 37. Cases applied by the decision in Gebhard, for example, Case C-282/07, Belgium v Truck Center SA [2009] 2 CMLR 14, para. 33; Case C-470/04, N v Inspecteur

van de Belastingdienst Oost/Kantoor Almelo [2006] 3 CMLR 49, para. 43; Case C-8/02, Leichtle v Bundesanstalt fur Arbeit [2006] 3 CMLR 4, para. 32; and Case C-212/97, Centros Ltd. V Erhvervs-og Selskabsstyrelsen [1999] 2 CMLR 551, para. 34. There are some other cases listed in P. Craig and G.

Burca, EU Law: Text, Cases and Materials, 4th Edition, (2008) Oxford University Press, at 804. 61