Category: Free movement of capital

The power to conclude the EU’s new generation of FTA’s: AG Sharpston in Opinion 2/15

By Laurens Ankersmit

To say that the EU’s new generation of trade agreements (such as CETA and TTIP) is politically controversial is becoming somewhat of an understatement. These free trade agreements (FTA), going beyond mere tariff reduction and facilitating hyperglobalization, have faced widespread criticism from civil society, trade unions, and academics. It may come as no surprise therefore that the legal issue over who is competent to conclude such agreements (the EU alone, or the EU together with the Member States) has received considerable public attention, ensuring that the Advocate General Sharpston’s response to the Commission’s request for an Opinion (Opinion 2/15) on the conclusion of the EU-Singapore FTA (EUSFTA)  has made the headlines of several European newspapers.

The Opinion of Advocate General Sharpston in Opinion 2/15, delivered on 21 December, is partly sympathetic to the Commission’s arguments on EU powers, but ultimately refutes the most outlandish of the Commission’s claims to EU power vis-à-vis that of its constituent Member States. The Opinion is of exceptional length (570 paragraphs, to my knowledge the longest Opinion ever written), and contains an elaborate discussion on the nature of the division of powers between the EU and the Member States and detailed reasoning on specific aspects of the EUSFTA such as transport services, investment protection, procurement, sustainable development, and dispute settlement.

Given the breadth of the AG’s conclusions, the aim of this post is to discuss the Opinion only in relation to investment protection and to reflect upon some of the consequences for the Commission’s investment policy, perhaps the most controversial aspect of this new generation of trade agreements. Continue reading

Neues aus dem Elfenbeinturm: December 2015

Workshop „The Age of Austerity: A New Challenge for State Powers“

University of Edinburgh, 30 March 2016. Deadline for abstract submissions: 20 December 2015.

CJICL Conference „Public and Private Power“

University of Cambridge, 8-9 April 2016. Deadline for abstract submissions: 10 January 2016.

Workshop „The preliminary reference procedure as a compliance mechanism of EU environmental law“

Brussels, 17 June 2016. Deadline for abstract submissions: 15 January 2016.

Conference „Building Consensus on European Consensus“

European University Institute, Florence, 1-2 June 2016. Deadline for abstract submissions: 31 January 2016.

Doctoral Colloquium „Responsibility in International and European Law, Philosophy and History“

University of Fribourg, 11-12 November 2016. Deadline for abstract submissions: 1 March 2016.

EELF Conference „Procedural Environmental Rights: Principle X in Theory and Practice“

Wrocław University, 14-16 September 2016. Deadline for abstract submissions: 15 March 2016.

Conference „Intra-EU BITs and Intra-EU Disputes“

University of Vienna, 7 March 2016. (Paid) registration needed.

Overseas Tax Holiday to Dutch Caribbean under the Free Movement of Capital spoiled by CJEU in TBG Limited-case

By Wessel Geursen

The free movement of capital provision of Art. 63 TFEU applies ratione loci ‘worldwide’: to both capital movements within EU’s internal market and to movements from the internal market to third countries (and vice versa). Or perhaps almost worldwide, since the question arises whether the free movement of capital also applies to the British, Danish, Dutch and French Overseas Countries and Territories (OCTs), which are not part of the internal market but associated with the EU?

In 2011, the CJEU decided in Case C-384/09 Prunus that Art. 63 TFEU also applied to the OCTs as if they were third countries; they are not third countries, since they áre part of the EU Member States (such as the Caribbean island of Curacao which is part of the Kingdom of the Netherlands, both constitutionally as under public international law; under EU-law, Curacao is an OCT).

Now, only three years later, the CJEU has decided otherwise in joined cases C-24/12 and C-27/12 X BV and TBG Limited. It came to the conclusion that not Art. 63 TFEU applies to the OCTs, but that a special capital movement provision which is contained in the OCT Association Decision applies in relation to the OCTs. This latter provision liberalises – in my view – ‘less’ than Art. 63 TFEU, since it ‘only’ applies to ‘direct investments in companies’, whereas Art. 63 TFEU also applies to (at least) 12 other categories of capital movements, such as investments in immovable property.[1]

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A more prudent approach in the “golden share” cases

Last week’s Grand Chamber judgments Commission v Germany (C-95/12) and Essent (C-105/12) may have brought some important clarifications on the “golden share” case law. They seem to point towards a more prudent, differentiated understanding of Art 63 TFEU in regard to the corporate governance of publicly owned companies. In the decision Commission v Germany, the Court dismissed an action brought under Art 260(2) TFEU for failure to comply with the 2007 VW law judgment; and in Essent it found Dutch measures ensuring public ownership of gas and electricity transmission system operators justifiable on public interest grounds.

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Case E-16/11 ESA/Iceland: It might be called a lifejacket, but it doesn’t mean it’s built for emergencies

Directive 94/19/EC on deposit-guarantee schemes, which has also been transposed into EEA law, obliges EU and EEA EFTA states to create deposit-guarantee schemes. Deposit-guarantee schemes reimburse a limited amount of deposits to depositors where their bank has failed. The purpose is to protect a part of depositors’ wealth from bank failures, and thus to prevent depositors from making panic withdrawals from their bank with potentially dire economic consequences. In the present case, the EFTA Court was confronted with an action by the EFTA Surveillance Authority against Iceland. The Authority claimed that Iceland had violated the transposed Directive and thus EEA law in the aftermath of its major economic crisis and collapse of the banking sector in 2008, by failing to ensure that British and Dutch depositors using the famous ‘Icesave’ accounts offered by Icelandic banks received the minimum amount of compensation set out in Article 7(1) of the Directive. In a rather surprising decision handed down on Monday this week, the Court interpreted the Directive very narrowly, effectively finding that Iceland had not failed to comply with its obligations under EEA law. Continue reading

Case C-600/10: The free movement of capital, infringement actions and the need for a plausible case

A short note on a case of yesterday: In Commission v. Germany (judgment only available in German and French so far), the Commission had argued that the free movement of capital was hindered by provisions of German tax law according to which non-resident pensions funds could not deduct directly connected operating costs from dividends and interests generated in Germany. This would create a disadvantage compared to resident pension funds which were entitled to deduct these costs in full. However, the Commission failed to convince the Court that it had a plausible case. Continue reading