Opinion of Mr Advocate General Mancini
Mr President
Members of the Court,
1. Two cases have been referred to the Court for a preliminary ruling relating to the exportation within the Community of foreign currency intended to pay for services in connection with tourism, health, education and business travel. In essence the issue to be decided is whether and how those matters are governed by Community law. The Court is therefore called upon to interpret the provisions of the EEC Treaty regarding liberalization of current payments for seivices which involve travel by the recipient of the service from the country in which he resides to the country in which the service is provided.
2. For a better understanding of the problems raised by the national court it would be helpful to look at the Italian rules on the exportation of foreign currency by persons resident in Italy. The principal source of such rules is Decree Law No 476 of 6 June 1956 (Gazzetta Ufficiale Nr 137 of 6. 6. 1956), which was converted into Law No 786 of 25 July 1956 (Gazzetta Ufficiale No 192 of 2. 8. 1956). I shall consider the salient points.
3. In its observations the Italian Government first of all questions whether the dispute has any ramifications affecting the Community and therefore doubts whether this Court has jurisdiction under Article 177. In both the Luisi and Carbone cases — it says — although the facts brought to the attention of the national court show that two persons resident in Italy acquired a certain amount of foreign currency they do not show for certain that it was actually used for travel abroad rather than being retained or illegally exported through third parties. Moreover, even if it were admitted that a trip was made, the route remains uncertain; that is to say, it cannot be asserted that the trip took place within the territory of the Community and not partly or wholly in nonmember countries. This view is supported by the fact that some of the currency purchased consisted of Swiss francs and United States dollars.
4. The case therefore concerns individuals who went from their country of residence to another Community country for the purpose of tourism, education, medical treatment or business and who, in order to meet the costs of travel and accommodation at their destination, exported foreign currency. The national court asks us to classify those exports of currency from the point of view of Community law and specifies the possible alternatives: the exports in question might be regarded as movements of capital and so fall within the scope of Articles 67 to 73 of the EEC Treaty, or as payments for the provisions of services, in which case they would be governed by Articles 59 to 66 of the Treaty. The difference between the two alternatives is great. At the end of the transitional period movements of capital were not entirely and automatically liberalized; however, the provision of services was. The rules relating to the latter are therefore directly applicable and may be relied upon by individuals.
5. In the opinion of the Italian and French Governments, travel by any person from one Community country to another for the purpose of tourism, education, medical treatment or business, where the person concerned takes with him foreign currency, entails the physical export of means of payment; that is to say, an operation is carried out which has not yet been liberalized and may therefore be controlled, limited or prohibited by any Member State. There is practically no restriction on State intervention, if it is true that in this area the Member States are not bound by the standstill provisions either. In fact, the first paragraph of Article 71 provides that Member States shall endeavour to avoid introducing ... any new ... restrictions .... Thus it uses a term which is much less explicit than those appearing in the corresponding rules regarding the movement of goods, persons and services. It may be deduced from that, as the Court noted in the Casati judgment, that the provision does not impose on the Member States an unconditional obligation capable of being relied upon by individuals (paragraph 19 of the decision).
6. But the argument which I have expounded — namely, that the Italian Government is denying freedom of movement for such economically or socially crucial services as tourism, health care and education — may be reinforced by others, based on the provisions implementing Articles 59 to 66.
7. We have thus ascertained that tourist, medical and educational services fall within the scope of Articles 59 to 66 even where, as is the rule, they require the recipient of the service to travel from his country of residence to the country in which the service is provided. Since restrictions on the freedom to provide services should have been abolished at the end of the transitional period, it must necessarily follow — because it is both a result of such travel and a condition for its taking place — that there is freedom of movement for transfers of foreign currency intended to pay for the services in question. Of this freedom too, there are many indications in a number of provisions. It is appropriate to recall at this stage that it was implemented by the first paragraph of Article 106 (1) of the Treaty.
8. In Questions 2 and 3, however, the national court advances the theory that exports of foreign currency for the purposes of tourism, education and medical treatment are governed by Article 106 (3). Since I have indicated that such exports are not covered by paragraph (1), I could ignore that conjecture, which, moreover, presupposes a negative reply to the first question; I shall nevertheless deal with it because an Advocate General's opinion is expected to be complete. The Tribunale di Genova refers to both the first and the second subparagraphs of Article 106 (3). As regards the first, it wishes to know whether the residents of one Member State going to another Member State for the purpose of tourism, medical treatment, education or business are entitled to export foreign currency by virtue of the standstill clause contained in the said subparagraph and by reason of the fact that, according to Annex III to the Treaty, such transfers constitute invisible transactions.
9. I shall now consider the second subparagraph of Article 106 (3). The Tribunale di Genova asks whether it may be interpreted as meaning that the export of foreign currency to cover expenses for the purposes of tourism, medical treatment and so forth, is included, as a physical transfer of means of payment, among the movements of capital which are not liberalized, with the result that Member States may lawfully limit or prohibit it.
10. Now that it has been established that transfers of foreign currency effected in order to pay for the services in question are liberalized, it remains to be decided what controls Member States are entitled to apply to them. Although the three questions are silent on that point, there is in fact a need for controls. The Italian Government has properly placed much emphasis on the risk that a tourist or patient or student might use foreign currency for purposes other than those for which it was obtained; that is to say, they might use it for the establishment of reserves abroad, thus effecting movements of capital in the strict sense. And I have said several times that such movements remain subject to restrictions. I would add here that there are logical reasons for this. The relevant provisions of the Treaty (I now cite the opinion of Mr Advocate General Capotorti in Casati) may not be interpreted independently of those on economic policy; and because Article 104 makes the Member States responsible for maintaining the equilibrium of their balance of payments, it would be incongruous to compel them to liberalize transfers unconditionally without their receiving anything in return.
11. In view of all the foregoing considerations, I suggest that, the-Court reply as follows to the questions submitted by the Tribunale di-'Genova byorders of 12 July and 22 November 1982 in the proceedings between Graziana Luisi and the Ministero del Tesoro and between Giuseppe Carbone and the same Ministry:
1 Translated from the Italian.