Commentary

A2.204 Fundamental EU freedoms

Administration and compliance

A2.204 Fundamental EU freedoms

A2.204 Fundamental EU freedoms

The EU fundamental freedoms fall within the statutory definition of retained EU law1. A number of these freedoms, including the freedom of establishment but not the right to the free movement of capital, have been specifically repealed by regulations from IP completion date2.

The right to the free movement of capital has been important, for instance in the long-running franked investment income (FII) litigation3, see A2.206. This freedom has not been repealed and so would appear to form part of retained EU law. It would seem surprising if UK taxpayers were still able to bring cases based on the EU right to free movement of capital, although the rationale may be that free movement of capital (unlike freedom of establishment) applies not only to movements between EU Member States, but also to movements between a Member State and a third (non-EU) country. Only time will tell whether this theoretical right has any practical significance, and in any event (as with all retained EU law) the government has the ability to repeal this freedom in future if it chooses to do so.

Pre IP completion date

In a direct tax context, the freedom of establishment was often of most relevance but the free movement of capital and the freedom to provide services was also relevant. The text of these articles is reproduced below.

Freedom of establishment

TFEU Article 49 provides that:

'Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member

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