Bijlagen bij SWD(2014)115 - Vrij verkeer van kapitaal in de EU - Hoofdinhoud
Dit is een beperkte versie
U kijkt naar een beperkte versie van dit dossier in de EU Monitor.
| dossier | SWD(2014)115 - Vrij verkeer van kapitaal in de EU. |
|---|---|
| document | SWD(2014)115 |
| datum | 18 maart 2014 |
Progress in the implementation of the Banking Union will be essential for achieving sustainable financial integration and stability within the euro area, whereby the benefits of cross-border capital flows are complemented by new supervisory and resolution authorities which will implement the new prudential framework in an effective and coherent way. Major progress was achieved recently, with the adoption in October 2013 of the legislation on the Single Supervisory Mechanism (SSM). Currently, negotiations are on-going on the Single Resolution Mechanism (SRM) proposed by the Commission in July 2013, which will ensure an efficient and effective resolution process.
Furthermore, in December 2013 a political agreement was reached on a Directive on deposit guarantee schemes (DGS) and on the Directive establishing a framework for the recovery and resolution of credit institutions and investment firms (BRRD). The Single Resolution Mechanism, once in place, should become the authority applying these new rules in the context of the Banking Union, supported by a Single Resolution Fund.
10
Finally, as part of the reforms to increase financial stability and ensure a smooth functioning of cross-border capital movements, in January 2014 the Commission proposed a Regulation on banking structural measures to increase the resilience of the largest EU banks.
3.2 Monitoring, enforcement and policy actions
The Commission services have continued to monitor issues related to the free movement of capital, with the aim of following market developments and of ensuring application of EU law. The number of formal infringement procedures is generally decreasing.21 Resort to EU Pilot procedure in the pre-infringement phase within the Commission has contributed to this trend.
Special rights and screening mechanisms
Developments in relation to possible privatisation in Member States, especially as part of economic adjustment programmes22 and in the economic sectors most concerned, have been followed closely. Privatisation needs to comply with EU rules, including rules on the free movement of capital.
Member States sometimes claim that some special rights or other means to retain some degree of public control of privatised companies are necessary to achieve certain public interest objectives. This may be the case in specific circumstances, especially in sectors of fundamental interest to society, albeit under strict conditions. Therefore, the challenge is to find the right balance between the aim of attracting investment in the Single Market and Member States' need to protect their legitimate general interest objectives.
In a recent preliminary ruling, the Court of Justice of the EU (CJEU) held that Member States' rules governing the system of property ownership are subject to the free movement of capital, and therefore a ban on privatisation restricts the free movement of capital. However, the reasons underlying the choice of rules of property ownership may justify the restriction. The CJEU also held that the objectives of combating cross-subsidisation in the broad sense in order to achieve transparency in the electricity and gas markets and to prevent distortions of competition may, as overriding reasons in the public interest, justify restrictions on the free movement of capital.23
The CJEU also delivered a judgment on the implementation of the 2007 judgment on investment restrictions in Volkswagen. The CJEU clarified that the scope of the 2007 judgment should be interpreted to mean that Germany failed to fulfil its obligations not simply by maintaining a lower blocking minority, but by combining this with provision for a
24
voting cap.
Bringing the number of open cases to 11. Cyprus, Greece Ireland and Portugal.
Judgment of 22 October 2013 in Joined Cases C-105/12, C-106/12 and C-107/12, Netherlands v Essent NV, Essent Nederland BV, Eneco Holding NV and Delta NV.
Judgment of 22 October 2013 in case C-95/12, Commission v Germany.
11
Screening mechanisms are another way to keep public control over the perceived risks of direct investment in strategic sectors. Some Member States have mechanisms to screen incoming investment on the basis of public security or public policy. The majority of these mechanisms cover investment from both within and outside the EU. Two Member States recently adopted or amended rules on screening investments.
Such screening mechanisms must comply with the Treaty. In a recent case, the CJEU outlawed two control mechanisms on investment in strategic companies:25 it was considered inappropriate to require ex ante authorisation of investment exceeding a 20% threshold based on criteria that were listed only indicatively and ex-post approval of important company decisions without any clear criteria for State intervention. The law in question applied to investment from both within and outside the EU.
Restrictions to investment in real estate
Member States are allowed to keep specific derogations from the free movement of capital rules for the acquisition of real estate, if these were provided for in the relevant Treaty of Accession. Concerning acquisitions of agricultural real estate, transitional periods applied for Bulgaria and Romania until 1 January 2014, for Hungary, Latvia, Lithuania and Slovakia until 1 May 2014, for Poland until 1 May 2016, and for Croatia until 1 July 2020. Croatia may also request a three-year extension.
With a view to the expiry of these transitional arrangements, the Commission services are following Member States' preparations to lift the restrictions. While Article 345 TFEU allows Member States to establish their own system of property ownership and to lay down measures specific to transactions relating to agricultural and forestry plots, these measures still have to guarantee the free movement of capital, the right of establishment and the free movement of persons.
As an exception to the general prohibition, the TFEU allows Member States to lay down rules which restrict the free movement of capital, subject to certain conditions. These restrictions may be permitted provided that they pursue an objective in the public interest, that they are applied in a non-discriminatory way and that they respect the principle of proportionality
Investment protection
Bilateral investment treaties between Member States (intra-EU BITs) were concluded at a time when at least one of the two parties was not yet member of the EU.26 But once both parties are EU Member States, their relationship cannot be subject to international agreements that overlap or conflict with the EU Treaties. Therefore, in the view of the Commission and a number of Member States, intra-EU BITs are incompatible with EU law and should be terminated as soon as possible.
Judgment of 8 November 2012 incase C-244/11, Commissionv Greece.
See Commission Staff Working Document on the free movement of capital in the EU, SWD(2013)146 final, 15 April 2013, p. 11.
12
Against this background and following discussions with Member States and industry, it appears that the exercise and the protection of investors' rights within the Single Market require particular attention, and further assessment.
The external dimension of the Single Market for capital
Since the EU was given exclusive competence for foreign direct investment under the common commercial policy in the Lisbon Treaty, it has sought to insert investment provisions in trade agreements. The objective is to cover investment liberalisation and investment protection in such agreements. Stand-alone investment negotiations are also being pursued.
Several negotiations on investment protection under free trade agreements are ongoing. For example, political agreement was reached in October 2013 on a free trade agreement with Canada. The EU and Japan launched negotiations on a free trade agreement in April 2013 and the first rounds of Transatlantic Trade and Investment Partnership (TTIP) talks took place from 8 to 12 July and from 11 to 15 November 2013.
4. CONCLUSION
The economic crisis continued to take its toll on global flows of financial resources in 2012. Although the fall in capital movements affected all major economies, the EU was hit particularly hard. These negative developments seem to have been reversed in the first months of 2013, but it is still too early to determine whether capital flows are now on a decisive upward path.
Weak economic performance in the EU and investors' concerns about the euro seem to be among the most prominent reasons for the decline in FDI in 2012. In addition, developments in cross-border portfolio investment and banking flows show that capital has continued to move from Member States that are considered 'riskier' to those deemed 'safer', thus reversing the pre-crisis trend.
The EU policy on free movement of capital has brought tangible benefits and safeguarded market openness to investment. Recent developments point to the need for continuous efforts to improve the attractiveness of the EU for investment, to ensure the financing of long-term investment in the EU economy, and to fight against financial fragmentation in the Single Market.
At the same time, the Single Market for capital is facing new challenges. The examples of capital controls in Cyprus, ring-fencing of banking assets and privatisation programmes illustrate the continuous need to strike a balance between staying open to foreign capital while safeguarding legitimate public policy objectives which are also important for attracting investment. Furthermore, the EU's extensive international agenda, including both investment liberalisation and protection, reinforces the importance of a well-functioning Single Market for capital.
13