Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro.

• Jurisdiction: European Union
• Celex Number: 61982CJ0286
• ECLI: ECLI:EU:C:1984:35
• Docket Number: 286/82,26/83
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Date: 31 January 1984

Avis juridique important

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61982J0286

Judgment of the Court of 31 January 1984. - Graziana Luisi and Giuseppe Carbone v Ministero del Tesoro. - References for a preliminary ruling: Tribunale civile e penale di Genova - Italy. - Invisible transactions - National control requirements. - Joined cases 286/82 and 26/83.

European Court reports 1984 Page 00377
Spanish special edition Page 00113
Swedish special edition Page 00473
Finnish special edition Page 00455

Summary
Parties
Subject of the case
Grounds
Decision on costs
Operative part

Keywords

1 . FREEDOM TO PROVIDE SERVICES - PROVISIONS OF THE TREATY - SCOPE - RECIPIENTS OF SERVICES

( EEC TREATY , ARTS 59 AND 60 )

2 . BALANCE OF PAYMENTS - LIBERALIZATION OF PAYMENTS - CURRENT PAYMENTS AND MOVEMENTS OF CAPITAL - CONCEPTS - PHYSICAL TRANSFER OF BANK NOTES - CLASSIFICATION

( EEC TREATY , ARTS 67 AND 106 )

3 . BALANCE OF PAYMENTS - LIBERALIZATION OF PAYMENTS - CURRENCY COVERED THEREBY

( EEC TREATY , ART . 106 )

4 . BALANCE OF PAYMENTS - LIBERALIZATION OF PAYMENTS - TRANSFERS OF FOREIGN CURRENCY IN CONNECTION WITH THE PROVISION OF SERVICES - RESTRICTIONS - ABOLITION - CONTROLS BY MEMBER STATES - WHETHER PERMISSIBLE - LIMITS

( EEC TREATY , ART . 106 )

Summary

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 .

Parties

IN JOINED CASES 286/82 AND 26/83

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNALE DI GENOVA ( DISTRICT COURT , GENOA ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

GRAZIANA LUISI

AND

MINISTERO DEL TESORO ( MINISTRY OF THE TREASURY ) ( CASE 286/82 ),

AND BETWEEN

GIUSEPPE CARBONE

AND

MINISTERO DEL TESORO ( CASE 26/83 ),

Subject of the case

ON THE INTERPRETATION OF ARTICLES 67 , 68 AND 106 OF THE EEC TREATY IN ORDER TO ENABLE THE COURT MAKING THE REFERENCE TO GIVE ITS DECISION AS TO THE COMPATIBILITY WITH THOSE ARTICLES OF CERTAIN PROVISIONS OF ITALIAN LEGISLATION RELATING TO TRANSFERS OF FOREIGN CURRENCY ,

Grounds

1 BY ORDERS OF 12 JULY AND 22 NOVEMBER 1982 , WHICH WERE RECEIVED AT THE COURT ON 27 OCTOBER 1982 AND 21 FEBRUARY 1983 RESPECTIVELY , THE TRIBUNALE DI GENOVA ( DISTRICT COURT , GENOA ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A NUMBER OF QUESTIONS ON THE INTERPRETATION OF ARTICLE 106 OF THE TREATY IN ORDER TO ENABLE IT TO DECIDE WHETHER THE ITALIAN LEGISLATION RELATING TO TRANSFERS OF FOREIGN CURRENCY IS COMPATIBLE WITH THAT ARTICLE .

2 THE QUESTIONS AROSE IN PROCEEDINGS INSTITUTED BY TWO ITALIAN RESIDENTS AGAINST DECISIONS OF THE MINISTRO DEL TESORO ( MINISTER FOR THE TREASURY ) IMPOSING FINES UPON THEM FOR PURCHASING VARIOUS FOREIGN CURRENCIES FOR USE ABROAD IN AN AMOUNT 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 .

3 BEFORE THE NATIONAL COURT THE PLAINTIFFS CONTESTED THE VALIDITY OF THE PROVISIONS OF ITALIAN LEGISLATION ON WHICH THE FINES WERE BASED , ON THE GROUND THAT THOSE PROVISIONS WERE INCOMPATIBLE WITH COMMUNITY LAW . IN CASE 286/82 THE PLAINTIFF IN THE MAIN PROCEEDINGS , MRS LUISI , STATED THAT SHE HAD EXPORTED THE CURRENCY IN QUESTION 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 . IN CASE 26/83 THE PLAINTIFF IN THE MAIN PROCEEDINGS , 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 . BOTH PLAINTIFFS SUBMITTED THAT THE RESTRICTIONS ON THE EXPORT OF MEANS OF PAYMENT IN FOREIGN CURRENCY FOR THE PURPOSE OF TOURISM...