GENERAL EXCEPTIONS TO THE FREE MOVEMENT OF CAPITAL UNDER THE TREATY ON THE FUNCTIONING OF THE EU: THEORY AND PRACTICE

Abstract

Introduction. The free movement of capital, set out in Article 63 of the Treaty on the Functioning of the EU (hereinafter referred to as TFEU), is one of the four fundamental freedoms of the internal market, but it is not absolute and is characterised by a complex system of permissible exceptions. In scientific literature, the theoretical and legal features of general exceptions to the free movement of capital in the EU remain insufficiently studied, which determines the relevance of the research. Objective. The objective of the study is to conduct a comprehensive analysis of the system of general exceptions to the free movement of capital under the TFEU (their legal nature, types and content) in comparison with special exceptions that apply only to the free movement of capital, with particular attention to the interaction with the freedom of establishment and the case law of the Court of Justice of the European Union (hereinafter referred to as CJEU). Materials and methods. The materials of the study are: primary and secondary EU law; CJEU case law in the field of free movement of capital; documents of the European Commission; scientific works in the field of EU law. The study uses dialectical, comparative legal and formal legal methods, as well as the method of systematic analysis. Results. General exceptions (Articles 345, 346, 75, 215, 143–144 TFEU) and special exceptions (Articles 64–66 TFEU) relating to the movement of capital have been systematised. The peculiarities of selecting an applicable freedom in relation to restrictions on the capital movement and the right of establishment have been revealed. Key CJEU’s judgements have been examined, including the latest case law in the field of capital movement restrictions. It has been determined that the principle of proportionality is consistent across all exceptions (reservations) and restrictions on the free movement of capital. Prospects. Further research should focus on studying new trends in the enforcement of EU law in the field of free movement of capital in the context of increased screening of foreign investments and geopolitical challenges, in particular those related to the consequences of Russia’s unjustified and unprovoked armed aggression against Ukraine.