C-194/84

Mr President, of capital movements provided for in the Members of the Court, First Council Directive of 11 May 1960 for the implementation of Article 67 of the EEC Treaty and in the Second Council Directive 1. In its action against Greece for failure to of 18 December 1962 adding to and fulfil its obligations, brought following the amending the First Directive for the reasoned opinion of 31 January 1984, the implementation of Article 67 of the EEC Commission claims that the defendant Treaty'. Thus Article 52 appears to contain Member State did not authorize, from 1 some of the rules of the transitional system January 1981 and under the conditions laid for the application of Article 67 and of the down in Article 52 of the Act of Accession two directives adopted for the implemen- of the Hellenic Republic to the European tation of that provision. Communities (hereinafter referred to as Article 52), transfers to other Member States of 'funds blocked in Greece' belonging to non-resident Community 4. Article 52 contains a timetable for the nationals. The outcome of the present case progressive release of funds blocked in depends on the interpretation of Article 52, Greece belonging to persons resident in the relationship between that provision and other Member States. The Commission and the Community rules applicable to 'blocked the Hellenic Republic disagree on the funds' within the meaning of the two concept of both 'liberalization' and 'blocked directives adopted for the application of funds'. Article 67 of the EEC Treaty (hereinafter referred to as Article 67) and, finally, the compatibility of the Greek legislation complained of and the way it has been 5. Greece takes the view that liberalization applied after accession with the relevant means that the owner of the funds should Community provisions. have the possibility of being able to use the funds again, but exclusively on Greek territory. The Commission believes that the 2. Article 52 is to be found in the part of funds released must in addition and above the Accession Treaty which deals with 'free all be transferable to any other Member movement of persons, services and capital' State of the Community. I concur with the and, more precisely, in Chapter 2 thereof, Commission's view that that interpretation entitled 'Capital movements and invisible can be inferred from the terms of Article 51 transactions'. (2) of the Accession Treaty which provides that: 'The repatriation of the proceeds from 3. Article 49 of the Accession Treaty the liquidation of real-estate investments (hereinafter referred to as Article 49) situated in Greece and acquired before introduces the provisions and states that accession by persons resident in the present 'The Hellenic Republic may, under the Member States shall be the subject of a conditions and within the time-limits set out gradual liberalization through the inclusion in Articles 50 to 53, defer the liberalization of the operation in question in the liberali-

zation system introduced for the funds ( O E C D ) . 3 Article 21 of that Code states blocked in Greece as defined in Article 52.' ' that: There could be no clearer affirmation that the 'liberalization system' of Article 52 includes the possibility of a transfer, without which there would be no repatriation. '(i) "Blocked funds" shall mean funds owned by residents of other Member States in accordance with the laws and regulations of the Member State where 6. As far as the concept of blocked funds is the funds are held and blocked for concerned, only a Community definition balance-of-payments reasons.' may be sought, not a national definition, as the Hellenic Republic suggests. In fact, Article 52, which establishes the procedures for the release of those funds, must be considered within the framework of Article The characteristic of such funds is thus the 49, which refers to the two directives fact that national rules, for economic or adopted for the application of Article 67. monetary reasons or both, prohibit the free The 1960 Directive imposes a duty on transfer abroad of funds belonging to Member States to grant 'all foreign non-residents, whatever their compo- exchange authorizations required for the sition — national or foreign currency — or conclusion or performance of transactions origin. In that respect, the generality of the terms in Item XL militates against or for transfers between residents of Member acceptance of the argument of the States in respect of the capital movements defendant government, which considers that set out in List A of Annex I to (that) liberalization only relates to funds arising directive'. 2 That list, in the version as from gifts or endowments of any kind, amended by the 1962 Directive, mentions dowries and inheritances, which are dealt among the movements benefiting from with under different headings in List A of unconditional liberalization under item of the two directives and therefore constitute nomenclature XL 'annual transfers of other personal capital movements. blocked funds to another Member State by a non-resident account-holder, up to an amount or a percentage of the total assets, fixed uniformly by the Member State concerned for all applicants'. 8. The spirit, the objective and the scheme of the directives for the implementation of Article 67 require that the concept of liberalization of blocked funds be inter- preted as meaning the possibility of trans- 7. Certainly, there is no Community text ferring them outside the national territory which gives a definition of blocked funds. under conditions which are to be However, as the Commission suggests, determined, subject, of course, to protective regard should be had to the terminology and safeguard measures provided for in the used in the Code of liberalization of capital EEC Treaty, in particular in Article 73. movements of the Organization for Economic Cooperation and Development 3 — Annex A, List A of the Code reads as follows: N o XV, A: 'Annual transfer of blocked funds by their owners within eneral limits or percentages of the total holdings to be 1 — My emphasis. å etermined by the Member States concerned shall be free. 2 — Article I, my emphasis. Such limits or percentages shall be uniform for all cases.'