Overview

Free movement of capital is one of the key elements in the EU single market, and is enshrined in the Treaty of Maastricht.  With the entry into force of this treaty in 1994 all restrictions on capital movements and payments across borders were prohibited.

The aim of liberalisation is to enable integrated, open, and efficient European financial markets.

For European citizens, free movement of capital means the ability to carry out many transactions, such as

  • opening bank accounts abroad
  • buying shares in non-domestic companies
  • investing where the best return is
  • purchasing real estate in another country

For companies, it means being able to

  • invest in, and own, other European companies
  • raise money where it is cheapest

Definition

The treaty on the functioning of the EU does not define the term ‘movements of capital’. In the absence of a definition, the Court of Justice of the European Union has held that the definitions in the nomenclature annexed to Directive 88/361/EEC can be used to define that term. According to these definitions, cross-border capital movements include

  • foreign direct investments (FDI)
  • real estate investments or purchases
  • securities investments (e.g. in shares, bonds, bills, unit trusts)
  • granting of loans and credit
  • other operations with financial institutions, including personal capital operations such as dowries, legacies, endowments, etc.

Legal framework

Amongst the fundamental freedoms that underpin the EU single market (free movement of people, goods, services and capital), the free movement of capital is the most recent. It became a directly applicable treaty freedom only with the Maastricht treaty.

The legal framework for the free movement of capital includes

  • treaty provisions
  • protocols and declarations
  • transitional measures granted by the acts of accession to new member countries

Article 63of the treaty on the functioning of the EU prohibits all restrictions on capital movements and payments not only within the EU, but also between EU countries and countries outside the EU. However, further provisions in the treaty stipulate a number of exceptions to the principle of free movement of capital, in particular to prevent problems related to taxation, prudential supervision of financial institutions, public policy and security.

The Court of Justice of the European Union (CJEU) has the final say in interpreting treaty provisions, and there is extensive case law in this area.

Read more:

Monitoring and enforcement

The European Commission enforces the free movement of capital by monitoring capital flows and ensuring EU countries properly apply the rules of the Treaty.

Barriers to the free movement of capital

The capital markets union (CMU) is a plan of the European Commission to build a true single market for capital in the EU by 2019. Under the CMU action plan, the European Commission has started working with EU countries to examine the remaining national barriers to the free movement of capital.

An expert group on barriers to the free movement of capital composed of representatives from EU countries was set up to exchange views in this area.

In February 2017 the Commission adopted a report looking at how to tackle national barriers with a view to fostering the flow of cross-border investments in the EU.

International relations

The free movement of capital has the broadest scope of all treaty freedoms. It is the only freedom that goes beyond the boundaries of the EU internal market, as it also includes capital flows between EU countries and the rest of the world.

Nevertheless, this freedom cannot exist without sensible safeguards and protections. EU countries are legally allowed to take precautions to ensure that foreign investment does not expose them to public security threats and the EU itself can act either in emergencies or in normal economic circumstances to restrict this freedom.

The EU has also led the way in promoting the free flow of capital internationally, advocating for lower trade barriers and a level playing field for investments.

The EU promotes these principles through