| Abstract [eng] |
The Delimitation of Capital Movement in Financial Markets from Competing Internal Market Freedoms. This work contains analysis of cases of the competition in application between the free movement of capital and the freedom to provide financial services and the freedom of establishment in financial markets, as well as the criterions developed in the case-law of the Court of Justice of the European Union (hereinafter – the CJEU) for the delimitation of these internal market freedoms and solving the competition in their application. The research is conducted first by identifying the concept of capital movements in the EU law and analyzing the particularities of competition between the free movement of capital and other internal market freedoms arising in the context of financial markets. Cases of overlapping between the scope of application of the free movement of capital and other internal market freedoms and the competition arising between them are revealed by, using systemic analysis, linguistic, logical and other methods, analyzing both primary and secondary EU law provisions and conducting an in-depth analysis of the case-law of the CJEU, which deals with legal cases where the subject-matter was recognised as related to both competing internal market freedoms. The author shows that although there are financial services which do not fall within the scope of application of the free movement of capital, for example, such as those consisting solely of consultancy activities, the scope of application of the free movement of capital and the freedom to provide services will in most cases overlap in financial markets. The work also shows that the scope of application of the free movement of capital and the freedom of establishment in financial markets will overlap in cases when investments confer the possibility of effectively participating in the management and control of the company. In the work, by conducting an in-depth analysis of the case-law of the CJEU using systemic analysis, logical, linguistic and other methods, it has been found that, apart from the „de minimis“ protection provided under the free movement of capital to financial investments in some cases, in the majority of cases of competition between the free movement of capital and the free movement of financial services, the priority of application is given not to the free movement of capital, but to the free movement of services. In cases of competition between the free movement of capital and the freedom of establishment, the CJEU gives priority to the freedom of establishment where the case concerns only investments which have a definite influence on the management or control of the company, but the CJEU gives priority to the free movement of capital in cases related with "golden shares" and in cases where the purpose of the applicable national legislation has more bearing on the free movement of capital than on the freedom of establishment. |
