# C_2014071EN.01000902.xml

| 8.3.2014 | EN | Official Journal of the European Union | C 71/9 |
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8.3.2014

EN

Official Journal of the European Union

C 71/9

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Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 17 December 2013 — VĮ ‘Indėlių ir investicijų draudimas’ and Nemaniūnas

(Case C-671/13)

(2014/C 71/16)

Language of the case: Lithuanian

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Appellants in cassation: VĮ ‘Indėlių ir investicijų draudimas’ and Virgilijus Vidutis Nemaniūnas

Other parties: Vitoldas Guliavičius and the bank ‘Snoras’, an insolvent public limited company

Questions referred

| 1. | Is Article 7(2) of Directive 94/19, (1) applied in conjunction with point 12 of Annex I to that directive, to be understood and interpreted as meaning that, where a Member State excludes from the guarantee depositors of a credit institution who possess debt securities (certificates of deposit) issued by that institution, that exclusion can be applied only in the event that the abovementioned certificates of deposit fully conform to (possess) all the features characterising them as financial instruments within the meaning of Directive 2004/39 (2) (having regard also to other measures of European Union law, for example, Regulation (EC) No 25/2009 of the European Central Bank), inter alia their negotiability on a secondary financial market? |
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1.

Is Article 7(2) of Directive 94/19, (1) applied in conjunction with point 12 of Annex I to that directive, to be understood and interpreted as meaning that, where a Member State excludes from the guarantee depositors of a credit institution who possess debt securities (certificates of deposit) issued by that institution, that exclusion can be applied only in the event that the abovementioned certificates of deposit fully conform to (possess) all the features characterising them as financial instruments within the meaning of Directive 2004/39 (2) (having regard also to other measures of European Union law, for example, Regulation (EC) No 25/2009 of the European Central Bank), inter alia their negotiability on a secondary financial market?

| 2. | If the relevant Member State elects to transpose Directives 94/19 and 97/9 (3) into national law in such a way that schemes for depositor and investor protection are laid down in a single legal measure (a law), are Article 7(2) of Directive 94/19, applied in conjunction with point 12 of Annex I to that directive, and Article 2(2) of Directive 97/9, taking account of Article 2(3) of Directive 97/9, to be understood and interpreted as meaning that it is not possible for no protection (guarantee) scheme for the purposes of the abovementioned directives to apply to holders of certificates of deposit and of bonds? |
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2.

If the relevant Member State elects to transpose Directives 94/19 and 97/9 (3) into national law in such a way that schemes for depositor and investor protection are laid down in a single legal measure (a law), are Article 7(2) of Directive 94/19, applied in conjunction with point 12 of Annex I to that directive, and Article 2(2) of Directive 97/9, taking account of Article 2(3) of Directive 97/9, to be understood and interpreted as meaning that it is not possible for no protection (guarantee) scheme for the purposes of the abovementioned directives to apply to holders of certificates of deposit and of bonds?

| 3. | Having regard to the fact that under national legislation none of the possible protection schemes provided for in Directives 94/19 and 97/9 is applicable to holders of certificates of deposit and bonds issued by a credit institution:






  (a) | Do Article 3(1), Article 7(1) (as subsequently amended by Directive 2009/14) and Article 10(1) of Directive 94/19, in conjunction with Article 1(1) of that directive which defines the term ‘deposit’, display the necessary clarity, detail and unconditionality and confer rights on individuals, so that they could be relied upon by individuals before a national court to found their claims for payment of compensation against the insurer which has been established by the State and is responsible for making payment? |
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3.

Having regard to the fact that under national legislation none of the possible protection schemes provided for in Directives 94/19 and 97/9 is applicable to holders of certificates of deposit and bonds issued by a credit institution:

(a)

Do Article 3(1), Article 7(1) (as subsequently amended by Directive 2009/14) and Article 10(1) of Directive 94/19, in conjunction with Article 1(1) of that directive which defines the term ‘deposit’, display the necessary clarity, detail and unconditionality and confer rights on individuals, so that they could be relied upon by individuals before a national court to found their claims for payment of compensation against the insurer which has been established by the State and is responsible for making payment?

| (b) | Do Articles 2(2) and 4(1) of Directive 97/9 display the necessary clarity, detail and unconditionality and confer rights on individuals, so that they could be relied upon by individuals before a national court to found their claims for payment of compensation against the insurer which has been established by the State and is responsible for making payment? |
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(b)

Do Articles 2(2) and 4(1) of Directive 97/9 display the necessary clarity, detail and unconditionality and confer rights on individuals, so that they could be relied upon by individuals before a national court to found their claims for payment of compensation against the insurer which has been established by the State and is responsible for making payment?

| (c) | Should the above questions (3(a) and 3(b)) be answered in the affirmative, which of the two possible protection regimes must a national court choose to apply when deciding a dispute between a private person and a credit institution and involving the participation of the insurer, established by the State, responsible for administration of the depositor and investor protection schemes? |
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(c)

Should the above questions (3(a) and 3(b)) be answered in the affirmative, which of the two possible protection regimes must a national court choose to apply when deciding a dispute between a private person and a credit institution and involving the participation of the insurer, established by the State, responsible for administration of the depositor and investor protection schemes?

| 4. | Are Articles 2(2) and 4(2) of Directive 97/9 (in conjunction with Annex I to that directive) to be understood and interpreted as precluding national legislation under which the investor-compensation scheme is not applicable to investors who possess debt securities issued by a credit institution by reason of the type of financial instrument (debt securities) and having regard to the fact that the entity with insurance (the credit institution) has not transferred or used investors’ funds or securities without the investor’s consent? Is it relevant to the interpretation of the abovementioned provisions of Directive 97/9, as regards investor protection, that the credit institution which has issued the debt securities — the issuer — is at the same time also the custodian of those financial instruments (intermediary) and that the investors’ funds are not separated from other funds of the credit institution? |
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4.

Are Articles 2(2) and 4(2) of Directive 97/9 (in conjunction with Annex I to that directive) to be understood and interpreted as precluding national legislation under which the investor-compensation scheme is not applicable to investors who possess debt securities issued by a credit institution by reason of the type of financial instrument (debt securities) and having regard to the fact that the entity with insurance (the credit institution) has not transferred or used investors’ funds or securities without the investor’s consent? Is it relevant to the interpretation of the abovementioned provisions of Directive 97/9, as regards investor protection, that the credit institution which has issued the debt securities — the issuer — is at the same time also the custodian of those financial instruments (intermediary) and that the investors’ funds are not separated from other funds of the credit institution?

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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).

(2)  Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).

(3)  Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor-compensation schemes (OJ 1997 L 84, p. 22).

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