# C_2017038EN.01000901.xml

| 6.2.2017 | EN | Official Journal of the European Union | C 38/9 |
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6.2.2017

EN

Official Journal of the European Union

C 38/9

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Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 14 November 2016 — Nikolay Kantarev v Balgarska narodna banka

(Case C-571/16)

(2017/C 038/12)

Language of the case: Bulgarian

Referring court

Referring court

Administrativen sad Varna

Parties to the main proceedings

Parties to the main proceedings

Applicant: Nikolay Kantarev

Applicant:

Defendant: Balgarska narodna banka

Defendant:

Questions referred

Questions referred

| 1. | Are Article 4(3) TEU and the principles of equivalence and effectiveness to be interpreted as permitting, in the absence of national rules, the courts having jurisdiction and the procedure for hearing actions for damages based on an infringement of EU law to be determined by reference to the authority which committed the infringement and by reference to the nature of the act/failure to act through which the infringement was committed if, as a result of the application of those criteria, the actions are heard by different courts, general and administrative courts, on the basis of different codes of procedure, the Code of civil procedure [Grazhdansko-protsesualen kodeks, GPK] and the Code of administrative procedure [Administrativnoprotsesualen kodeks, APK], which require payment of different fees, namely proportionate and flat-rate, and proof of satisfaction of different conditions, including fault? |
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1.

Are Article 4(3) TEU and the principles of equivalence and effectiveness to be interpreted as permitting, in the absence of national rules, the courts having jurisdiction and the procedure for hearing actions for damages based on an infringement of EU law to be determined by reference to the authority which committed the infringement and by reference to the nature of the act/failure to act through which the infringement was committed if, as a result of the application of those criteria, the actions are heard by different courts, general and administrative courts, on the basis of different codes of procedure, the Code of civil procedure [Grazhdansko-protsesualen kodeks, GPK] and the Code of administrative procedure [Administrativnoprotsesualen kodeks, APK], which require payment of different fees, namely proportionate and flat-rate, and proof of satisfaction of different conditions, including fault?

| 2. | Are Article 4(3) TEU and the requirements laid down by the Court in Frankovich to be interpreted as precluding [the possibility of] actions for damages based on an infringement of EU law being heard in a procedure such as that under Article 45 and Article 49 of the Law on obligations and contracts [Zakon za zadalzheniata i dogovorite, ZZD], which requires payment of a proportionate fee and proof of fault, and also in a procedure such as that under Article 1 of the Law on liability of the State and of municipalities for damage [Zakon za otgovornostta na darzhavata i obshtinite za vredi, ZODOV], which provides for objective liability and includes special rules to facilitate access to the courts, but which is nevertheless applicable only to damage arising from annulled unlawful legal acts and unlawful acts/failures to act by the administration and does not cover infringements of EU law committed by other State authorities through legal acts/failures to act not annulled under the procedure in question? |
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2.

Are Article 4(3) TEU and the requirements laid down by the Court in Frankovich to be interpreted as precluding [the possibility of] actions for damages based on an infringement of EU law being heard in a procedure such as that under Article 45 and Article 49 of the Law on obligations and contracts [Zakon za zadalzheniata i dogovorite, ZZD], which requires payment of a proportionate fee and proof of fault, and also in a procedure such as that under Article 1 of the Law on liability of the State and of municipalities for damage [Zakon za otgovornostta na darzhavata i obshtinite za vredi, ZODOV], which provides for objective liability and includes special rules to facilitate access to the courts, but which is nevertheless applicable only to damage arising from annulled unlawful legal acts and unlawful acts/failures to act by the administration and does not cover infringements of EU law committed by other State authorities through legal acts/failures to act not annulled under the procedure in question?

Frankovich

| 3. | Are Article 1(3)(i) and Article 10(1) of Directive 94/19 (1) to be interpreted as permitting a legislative approach such as that taken in Article 36(3) of the Law on credit institutions [Zakon za kreditnite institutsii, ZKI] and Article 23(5) of the Law on guarantees for bank deposits [Zakon za garantirane na vlogovete v bankite, ZGVB], under which ‘the condition that the credit institution concerned appears to be unable for the time being, for reasons which are directly related to its financial circumstances, to repay the deposit and to have no current prospect of being able to do so’ is a synonymous with the declaration of the insolvency of the institution and the withdrawal of its authorisation and the deposit-guarantee scheme takes action from the time of withdrawal of the banking licence? |
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3.

Are Article 1(3)(i) and Article 10(1) of Directive 94/19 (1) to be interpreted as permitting a legislative approach such as that taken in Article 36(3) of the Law on credit institutions [Zakon za kreditnite institutsii, ZKI] and Article 23(5) of the Law on guarantees for bank deposits [Zakon za garantirane na vlogovete v bankite, ZGVB], under which ‘the condition that the credit institution concerned appears to be unable for the time being, for reasons which are directly related to its financial circumstances, to repay the deposit and to have no current prospect of being able to do so’ is a synonymous with the declaration of the insolvency of the institution and the withdrawal of its authorisation and the deposit-guarantee scheme takes action from the time of withdrawal of the banking licence?

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the condition that the credit institution concerned appears to be unable for the time being, for reasons which are directly related to its financial circumstances, to repay the deposit and to have no current prospect of being able to do so

| 4. | Is Article 1(3) of Directive 94/19 to be interpreted as meaning that in order for a deposit to be classified as ‘unavailable’, its unavailability must be expressly determined by the ‘relevant competent authorities’ after completing the assessment pursuant to point i of that provision or does it permit, where there is a gap in national law, the assessment and the intention of the ‘relevant competent authority’ to be inferred by way of an interpretation of other legal acts of that authority — in the present case, for example, Decision No 73 of 20 June 2014 of the Management Board (upravitelen savet, US) of the BNB, by which ‘KTB’ AD was placed under special supervision — or to be presumed in the light of circumstances like those in the main proceedings? |
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4.

Is Article 1(3) of Directive 94/19 to be interpreted as meaning that in order for a deposit to be classified as ‘unavailable’, its unavailability must be expressly determined by the ‘relevant competent authorities’ after completing the assessment pursuant to point i of that provision or does it permit, where there is a gap in national law, the assessment and the intention of the ‘relevant competent authority’ to be inferred by way of an interpretation of other legal acts of that authority — in the present case, for example, Decision No 73 of 20 June 2014 of the Management Board (upravitelen savet, US) of the BNB, by which ‘KTB’ AD was placed under special supervision — or to be presumed in the light of circumstances like those in the main proceedings?

| 5. | Under circumstances like those in the main proceedings, where, by Decision No 73 of 20 June 2014 of the Management Board of the BNB, all payments and transactions were suspended and in the period from 20 June 2014 to 6 November 2014 depositors were neither able to make requests for payment nor had access to their deposits, are all secured indefinite deposits (which may be disposed of without prior notice and which are to be paid out immediately upon request) to be considered as unavailable within the meaning of Article 1(3)(i) of Directive 94/19 or does the condition that a deposit ‘is due and payable but has not been paid by a credit institution’ mean that depositors with the credit institution must have made a claim for payment (by application or request) which was not granted? |
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5.

Under circumstances like those in the main proceedings, where, by Decision No 73 of 20 June 2014 of the Management Board of the BNB, all payments and transactions were suspended and in the period from 20 June 2014 to 6 November 2014 depositors were neither able to make requests for payment nor had access to their deposits, are all secured indefinite deposits (which may be disposed of without prior notice and which are to be paid out immediately upon request) to be considered as unavailable within the meaning of Article 1(3)(i) of Directive 94/19 or does the condition that a deposit ‘is due and payable but has not been paid by a credit institution’ mean that depositors with the credit institution must have made a claim for payment (by application or request) which was not granted?

| 6. | Are Article 1(3)(i), Article 10(1) of Directive 94/19 and recital 8 of Directive 2009/14 (2) to be interpreted as meaning that the discretion enjoyed by the ‘relevant competent authorities’ in respect of the assessment under Article 1(3)(i) is in any case limited by the time-limit laid down in the second sentence of point i or do they permit, for the purposes of special supervision, as under Article 115 of the ZKI, deposits to remain unavailable for longer periods than provided for in the directive? |
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6.

Are Article 1(3)(i), Article 10(1) of Directive 94/19 and recital 8 of Directive 2009/14 (2) to be interpreted as meaning that the discretion enjoyed by the ‘relevant competent authorities’ in respect of the assessment under Article 1(3)(i) is in any case limited by the time-limit laid down in the second sentence of point i or do they permit, for the purposes of special supervision, as under Article 115 of the ZKI, deposits to remain unavailable for longer periods than provided for in the directive?

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| 7. | Do Article 1(3)(i) and Article 10(1) of Directive 94/19 have direct effect and do they confer on holders of deposits in a bank which is a member of a deposit-guarantee scheme, in addition to their right to compensation under that scheme up to the amount specified in Article 7(1) of Directive 94/19, the right to hold the State liable for an infringement of EU law by bringing an action against the authority required to determine the unavailability of deposits, seeking compensation for the damage which has arisen as a result of the late payment of the guaranteed deposit, if the decision under Article 1(3)(i) was taken after the expiry of the time-limit of five days laid down in the directive and that lateness is due to the effect of a reorganisation measure which was intended to protect the bank from insolvency and was adopted by that authority, or, in circumstances like those in the main proceedings, do they permit a national provision such as Article 79(8) of the ZKI, under which the BNB, its organs and persons authorised by them are liable for damage arising in the performance of their supervisory activity only if it was caused intentionally? |
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7.

Do Article 1(3)(i) and Article 10(1) of Directive 94/19 have direct effect and do they confer on holders of deposits in a bank which is a member of a deposit-guarantee scheme, in addition to their right to compensation under that scheme up to the amount specified in Article 7(1) of Directive 94/19, the right to hold the State liable for an infringement of EU law by bringing an action against the authority required to determine the unavailability of deposits, seeking compensation for the damage which has arisen as a result of the late payment of the guaranteed deposit, if the decision under Article 1(3)(i) was taken after the expiry of the time-limit of five days laid down in the directive and that lateness is due to the effect of a reorganisation measure which was intended to protect the bank from insolvency and was adopted by that authority, or, in circumstances like those in the main proceedings, do they permit a national provision such as Article 79(8) of the ZKI, under which the BNB, its organs and persons authorised by them are liable for damage arising in the performance of their supervisory activity only if it was caused intentionally?

| 8. | Does an infringement of EU law where ‘the relevant competent authority’ has not taken a decision pursuant to Article 1(3)(i) of Directive 94/19 constitute a ‘sufficiently serious breach’ which can trigger the liability of a Member State for damage by way of an action brought against the supervisory authority, under what conditions is this the case and, in this connection, are the following circumstances relevant: (a) that the Bank Deposit Guarantee Fund [Fond za garantirane na vlogovete v bankite, FGVB] did not have sufficient funds to cover all the guaranteed deposits; (b) that in the period in which payments were suspended the credit institution was placed under special supervision in order to protect it against insolvency; (c) that the applicant’s deposit was paid out after the BNB had established that the reorganisation measures had been unsuccessful; [(d)] that the applicant’s deposit was paid out together with income from interest, calculated for the period from 20 June 2014 to 6 November 2014 inclusive? |
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8.

Does an infringement of EU law where ‘the relevant competent authority’ has not taken a decision pursuant to Article 1(3)(i) of Directive 94/19 constitute a ‘sufficiently serious breach’ which can trigger the liability of a Member State for damage by way of an action brought against the supervisory authority, under what conditions is this the case and, in this connection, are the following circumstances relevant: (a) that the Bank Deposit Guarantee Fund [Fond za garantirane na vlogovete v bankite, FGVB] did not have sufficient funds to cover all the guaranteed deposits; (b) that in the period in which payments were suspended the credit institution was placed under special supervision in order to protect it against insolvency; (c) that the applicant’s deposit was paid out after the BNB had established that the reorganisation measures had been unsuccessful; [(d)] that the applicant’s deposit was paid out together with income from interest, calculated for the period from 20 June 2014 to 6 November 2014 inclusive?

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(1)  Directive 94/19/EC of the European Parliament and of the Council of 30 May 1994 on deposit-guarantee schemes (OJ 1994 L 135, p. 5).

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(2)  Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009 amending Directive 94/19/EC on deposit-guarantee schemes as regards the coverage level and the payout delay (OJ 2009 L 68, p. 3).

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