Free Movement of Capital and Foreign Direct Investment: The Scope of Protection in EU Law

Presents the first full-length analysis of the protection of foreign investors under EU law
Provides a timely reconstruction of the case law on free movement of capital, at a time when the principle is being undermined by the rise of neo-protectionism in Member States
Offers a valuable analysis of the relationship between EU internal market law and the international law of foreign investment
The scope of protection offered to foreign investors by EU law has become a matter of intense political debate. Neo-protectionist policies are on the rise within EU Member States, who are struggling to acclimatise to increasing inward direct investment from developing countries. Strict regulations are being implemented to control the flow of this investment, undermining the principle of free movement of capital. Are such policies permitted under EU law? What impact does EU law have on foreign direct investment? This book addresses these questions through a coherent doctrinal reconstruction of the EC Treaty provisions on free movement of capital in a third country context.

Opening with a timely restatement of the central features of the EU law of free movement of capital, the book then asks the central question: What rights does a private market participant, engaged in cross-border direct investment originating from or directed to a non-EU Member State, enjoy by virtue of the EC Treaty? The book argues that in principle, the provisions on free movement of capital apply the same liberal standards irrespective of whether intra Community or third country direct investment is involved. Hence, those who participate in third country direct investment enjoy essentially the same guarantees by virtue of the provisions on free movement of capital as those active in intra Community direct investment. Having established the legal doctrine, the book then examines the limits on restrictions to free movement, including financial regulation and discriminatory tax regimes.


Readership: Academics and practicing lawyers working on EU internal market law, and international investment law


Steffen Hindelang, Senior Research Associate and Lecturer, Humboldt University Berlin, School of Law, Walter Hallstein-Institute of European Constitutional Law



Steffen Hindelang studied law and economics at the Universities of Bayreuth, Sheffield and Marburg. He was admitted to the degree of Master of Laws in International, European and Commercial Law of the University of Sheffield in 2001 and to the degree of Doctor iuris (Ph.D. equivalent) of the Eberhard Karls University Tübingen, School of Law in 2008. From 2004 until 2009 he was research associate and lecturer at the aforementioned institution. He is also a fully qualified German lawyer.


Introduction
I: Preparing the Foundation: Economic Rationale for the Liberalization of Capital Movements and the Art of Political Compromise
II: Foreign Direct Investment and the Material Scope of Application of Article 56(1)EC
III: The Influence of Competing Freedoms on the Scope of Application - Direct Investment between Free Movement of Capital and the Freedom of Establishment
IV: Which Level of Protection? - The Scope of the Prohibition of Restriction: Equal Treatment and Market Access
V: Personal Scope of Application
VI: Exceptions to the Freedom Applicable to Intra-Community and Third Country Situations
VII: Exceptions to the Freedom Exclusively Applicable to Third Country Contexts
Perspectives - 'Anxiety is the Dizziness of Freedom'
Annex: Summary: Position Statements
Bibliography