«(Interpretation of Articles 48 and 52 of the EEC Treaty (subsequently Articles 48 and 52 of the EC Treaty, now, after amendment, Articles 39 EC and 43 EC), Article 67 of the EEC Treaty (subsequently Article 67 of the EC Treaty, repealed by the Treaty of Amsterdam), Articles 6 and 8a of the EC Treaty (now, after amendment, Articles 12 EC and 18 EC) – Directives 88/361/EEC and 90/364/EEC – Inheritance tax – Requirement of cross-border economic activity – Prohibition of discrimination on the basis of Member State of residence)»

1.. Free movement of capital – Liberalisation of capital movements – Directive 88/361 – Scope (Council Directive 88/361, Art. 1(1))

2.. Free movement of capital – Restrictions – National legislation concerning the assessment of inheritance tax on properties excluding from the assessment of their value the fact that non-resident owners were, before their death, under an obligation to transfer legal title to the financial owner – Not permissible

JUDGMENT OF THE COURT (Fifth Chamber) 11 December 2003 (1)

((Interpretation of Articles 48 and 52 of the EEC Treaty (subsequently Articles 48 and 52 of the EC Treaty, now, after amendment, Articles 39 EC and 43 EC), Article 67 of the EEC Treaty (subsequently Article 67 of the EC Treaty, repealed by the Treaty of Amsterdam), Articles 6 and 8a of the EC Treaty (now, after amendment, Articles 12 EC and 18 EC) – Directives 88/361/EEC and 90/364/EEC – Inheritance tax – Requirement of cross-border economic activity – Prohibition of discrimination on the basis of Member State of residence))

In Case C-364/01,

REFERENCE to the Court under Article 234 EC by the Gerechtshof te 's-Hertogenbosch (Netherlands) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Articles 48 and 52 of the EEC Treaty (subsequently Articles 48 and 52 of the EC Treaty, now, after amendment, Articles 39 EC and 43 EC), Article 67 of the EEC Treaty (subsequently Article 67 of the EC Treaty, repealed by the Treaty of Amsterdam), Articles 6 and 8a of the EC Treaty (now, after amendment, Articles 12 EC and 18 EC) and the provisions of Council Directive 90/364/EEC of 28 June 1990 on the right of residence (OJ 1990 L 180, p. 26) and Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (OJ 1988 L 178, p. 5),

THE COURT (Fifth Chamber),,

composed of: P. Jann, acting as the President of the Fifth Chamber, D.A.O. Edward (Rapporteur) and A. La Pergola, Judges,

Advocate General: J. Mischo,

after considering the written observations submitted on behalf of:

having regard to the Report for the Hearing,

after hearing the oral observations of the heirs of Mr Barbier, represented by P. Kavelaars; the Netherlands Government, represented by C. Wissels, acting as Agent; and the Commission, represented by R. Lyal and H.M.H. Speyart, at the hearing on 24 October 2002,

after hearing the Opinion of the Advocate General at the sitting on 12 December 2002,

gives the following

Community legislation

...This nomenclature is not an exhaustive list for the notion of capital movements ─ whence a heading XIII-F, Other capital movements ─ Miscellaneous. It should not therefore be interpreted as restricting the scope of the principle of full liberalisation of capital movements as referred to in Article 1 of the Directive.

.

National legislation

...

...

Observations submitted to the Court

Deduction of the obligation to transfer title on the basis of the deceased's place of residence

Free movement of capital

Freedom of movement for persons

The Court's answer

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Gerechtshof te 's-Hertogenbosch by order of 5 September 2001, hereby rules:

Jann

Edward

La Pergola

Delivered in open court in Luxembourg on 11 December 2003.

R. Grass

V. Skouris

Registrar

President