Treaty exceptions to the free movement of capital : judicial interpretation

The free movement of capital is one of the four fundamental freedoms ofthe European Union internal market. This thesis seeks to examine how the European Court of Justice has interpreted the grounds under which a Member State may derogate from the full free movement of capital within the European Union. These Treaty derogations are found within Article 65 TFEU and include: certain residence-based taxation measures; national rules concerned with preventing abuse of the financial system; public policy and public security measures; information gathered for statistical or administrative purposes. The argument put forward in this thesis is that the Court should adopt a "contextually sensitive" approach to interpreting these exceptions to the free movement of capital. The reason for this approach stems from the unique and distinctive characteristics of capital, which makes it a volatile and (potentially) dangerous factor of production. This, as a matter of necessity, requires the Court to be sympathetic to national measures which seek to restrict the free movement of capital. The thesis argues that the Court can (and should) adopt such a differentiated approach, whilst maintaining consistency and coherence within its more general internal market jurisprudence. Early on, the thesis identifies the proportionality review as the tool through which a flexible and context driven approach could be achieved. The thesis also demonstrates and explores the different factors (e.g. economic, political, pragmatic, international) that influence how the Court undertakes the interpretative task and how these may be used to ensure consistency amongst freedoms. The overall conclusion of the thesis is that not only is it possible (and desirable) for the Court to adopt a differential and context orientated approach to the exceptions, but that the Court is already doing this in a number of important areas (including restrictions on third country tax movements and in areas concerned with public policy).EThOS - Electronic Theses Online ServiceGBUnited Kingdo