On 21 December 2011, the ECJ ruled that provisions limiting
foreign investments by open pension funds are incompatible with EU
law.
OPFs are limited to foreign investments comprising 5% of the
value of their assets, and to a list of possible investments which
is significantly less extensive than those allowed within
Poland.
According to the ECJ, the imposition of these quantitative and
qualitative restrictions on investments in other member states
violates the free movement of capital principle and, as such,
breaches Article 56(1) of the EC Treaty (currently Article 63 of
the TFEU).
Under EU law, the free movement of capital may be limited by
national legislation only if this is justified by one of the
reasons mentioned in Article 58 of the EC Treaty (currently Article
65 of the TFEU) or by overriding reasons in the public interest.
According to the ECJ, the Polish government failed to demonstrate
arguments justifying the restrictions.
