Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. Is national legislation which requires residents of a Member State who acquire foreign securities dealt in on a stock exchange

2. Article 67 (1) of the EEC Treaty requires the Member States to abolish progressively ... between themselves all restrictions on the movement of capital belonging to persons resident there and any discrimination based on the nationality or on the place of residence of the parties or on the place where such capital is invested.

3. By three successive decisions, the Commission authorized the Italian Republic to take certain protective measures pursuant to Article 108 (3) of the EEC Treaty (Commission Decisions Nos 74/287 of 8 May 1974 and 75/355 of 26 May 1975, Official Journal L 152, p. 18, and L 158, 1975, p. 25) or to continue to apply certain of those measures (Commission Decision No 85/16 of 19 December 1984, Official Journal L 8, 1985, p. 34).

4. By a Ministerial Decree of 12 March 1981, the Italian Republic made use of the authorization granted to it.

5. Those, then, are the main provisions in point in these proceedings.

6. The Pretura has therefore referred to the Court for a preliminary ruling the four questions whose text is set out in the Report for the Hearing.

7. Mr Brugnoni and Mr Ruffinengo argue that the operation at issue was governed by the 1974 decision, which was expressly repealed by the 1984 decision. The effect of its repeal must have been to put an end to the requirement to lodge a deposit. As regards the requirement laid down in the 1984 decision, which had no retroactive effect, it could not apply to previous operations.

8. There remains the more controversial question, to which the first two questions relate, of the compatibility with primary or secondary Community legislation of the requirement imposed upon owners of foreign securities to deposit them with an approved bank.

9. For the following reasons, in particular those put forward by the Italian Government and the Commission, I do not find the plaintiffs' arguments convincing.

10. It is therefore necessary to investigate whether the compulsory deposit of securities with an approved bank is contrary to the provisions of the directive adopted for the implementation of Article 67 (1).

11. I therefore propose that the Court answer the questions raised by the Pretura di Genova as follows:

1 Translated from the French.

2 See in this connection P. Oliver, Free movement of capital: Art. 67(1) and implementing directives, European Law Review, 1984, p. 401, particularly at p. 404.