Opinion of the Advocate General — ECLI:EU:C:2013:352
Date: 2013-05-30
Language of the case: French
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: France

summary, I shall now answer the questions specifically concerned with Law No 44/2009. 2. Examination of the substance of the question 54. In what follows, I shall divide my submissions into three sections setting out the proposition I am putting forward and the two conditions that, in my view, are capable of justifying the inclusion of certain legislative measures within the scope of Directive 2001/24. (a) The ‘reorganisation measures’ do not fall outside the scope of Directive 2001/24 solely and exclusively because they were adopted by the national legislature 55. Turning now without further ado to the answer to the first question referred by the Cour de cassation, I would point out first of all that there seems little doubt that, on the basis of the actual wording of Articles 3(1) and 9(1) of Directive 2001/24, there would be no place in those provisions for ‘legislative authorities’, for they refer expressly only to ‘administrative or judicial authorities’ and to those authorities as ‘alone being empowered’ to take such measures. (4) However, such an interpretation would, in my view, be contrary not only to the spirit and purpose of Directive 2001/24 but above all to the very scheme of that directive. (5) 56. A reading of the content of those provisions taken as a whole makes it apparent that the decisive criterion in them, more important than the identity of the specific authorities empowered to take the reorganisation measures referred to in Directive 2001/24, is that they should be authorities belonging to the ‘home’ Member State within the meaning of the Directive. Also decisive in those provisions, in my view, is the nature of the measures in question, as well as the fact that they are central to the scheme of the Directive. 57. Everything in Directive 2001/24 is directed towards ‘establishing mutual recognition by the Member States of the measures taken by each of them to restore to viability the credit institutions which it has authorised’, (6) thereby ensuring that ‘they are effective in all Member States’. (7) 58. On the other hand, in accordance with Article 2 of the Directive, ‘reorganisation measures’ are measures that ‘are intended to preserve or restore the financial situation of a credit institution’. (8) They are therefore measures of a specific, customised nature, aimed at individual credit institutions and not, therefore, meant to apply to all such institutions or to determine the rules of law governing the financial sector. This is confirmed by Articles 3 and 9 of the Directive, which always refer to measures adopted in respect of ‘a credit institution’. 59. It is true that the fact that the reorganisation measures are individual or customised to their addressees would naturally suggest that it is the administrative or judicial authorities that are competent to take such measures. Notwithstanding all the potential differences between the constitutional structures of the Member States, it is a principle common to all national traditions that a law is, by definition, a rule of general and abstract nature, as compared with the individual and concrete nature of both administrative and judicial decisions in their capacity as acts specifically intended to implement the general provisions of such a law. In this regard, a mere reading of the Directive as a whole makes abundantly clear the importance assigned to the principle of legality. 60. The foregoing notwithstanding, a comparative examination of the national constitutional systems shows that some of them occasionally use ‘special laws’ (ius singulare — literally, ‘singular law’), that is to say, laws that are individual or specific, either because of their content or because of the persons to whom they are addressed. (9) In so far as this type of law is permissible in the legal systems of the Member States, (10) there is in principle no scope for objection, from the point of view of EU law, to their suitability as legislative instruments for the exercise of public authority at national level. None the less, as we shall see, in the specific case of Directive 2001/24, certain conditions do have to be imposed. 61. At all events, it is my view that the repeated references in the Directive to the administrative or judicial authorities are essentially attributable to the indisputable fact that these are usually the authorities called upon to adopt the reorganisation measures whose recognition by the Member States the Directive is intended to secure. I am also of the view, however, that the use of that wording should not be taken as the expression of an express intention to exclude in any circumstances a Member State’s ‘legislative authority’ from the list of national authorities called upon to adopt measures the universal recognition of which the Directive is intended to secure. 62. By way of interim conclusion, I submit that, subject to my further comments below, the measures adopted by the Icelandic legislature in the context with which we are concerned here, in particular those contained in Law No 44/2009, do not fall outside the scope of Directive 2001/24 on the sole ground that they were adopted by means of legislative provisions. (b) However, measures adopted by the legislature must actually have been adopted by it if they are to be eligible for inclusion within the scope of Directive 2001/24 63. First of all, it is my view that the legislative authority may be regarded as excluded from the scope of Directive 2001/24 only in so far as that authority adopts general and abstract measures, that is to say, provisions that do not satisfy the definition of ‘reorganisation measures’ given in Directive 2001/24. If, on the other hand, the legislative authority may, in accordance with national law, also adopt measures that, being individual and specific, do satisfy the definition given in Directive 2001/24, there is in my opinion no reason why the latter may not be deemed equivalent to measures adopted by the administrative or judicial authorities or, therefore, why they should not be eligible for the recognition guaranteed by the Directive throughout the European Union for reorganisation measures adopted by a Member State. 64. In principle, Law No 44/2009 has every semblance of a law in the formal and generally accepted sense of that term. As one would expect, it amends a law of the same nature, such as Law No 161/2002 on financial undertakings. None the less, by virtue of the transitional provisions it contains, Law No 44/2009 is addressed specifically to financial undertakings that have been granted a moratorium. At the time it came into force, April 2009, Landsbanki was in that position following a judicial decision given on 5 December 2008. According to the observations submitted by the Icelandic Government, (11) four more financial undertakings were in the same position. 65. In the context of the financial crisis that began in Iceland in 2008, the special circumstances affecting Landsbanki could not have been unknown to the Icelandic legislature. It was precisely the situation in which that financial undertaking and others like it found themselves that prompted all of the legislative measures adopted as a matter of urgency from 6 October 2008, the date of entry into force of Law No 125/2008, which authorised the national supervisory authority to take specific measures. (12) What we have here, then, is a set of legislative measures which, because of their very content, are prima facie confined, as far as their application is concerned, to a clearly defined and easily identifiable group of individual addressees. 66. On the other hand, we may not ignore the fact that it could have been essential for the measures needed to reorganise Landsbanki to be adopted by means of legislative provisions with the force of law and therefore falling outside the remit of the administrative and judicial authorities. It is in this connection, as I said at the beginning of this Opinion, that account must be taken of the seriousness of the crisis that the Icelandic authorities were attempting to deal with. In view of the scale and extent of the crisis, the national authorities took the view that the only way in which the effects of the financial crisis could be combated was by adopting measures that would amend the legislative framework by introducing exceptions to some of the general rules governing the activities of financial undertakings. For the purposes of this case, those measures appear to have been adopted in order to address specific circumstances and on a transitional basis, and were not therefore intended to be generally applicable or permanent, as the later successive reforms in the sector at issue show. 67. Consequently, in a situation in which, because of the legislative status of the provisions the application of which is to be affected, the reorganisation measures needed to deal with the situation of a financial undertaking can only be provisions having the same legislative status, it would make no sense to exclude measures adopted by a parliament from the scope of Directive 2001/24 on the sole ground that it is not an administrative or judicial authority, in other words, that those measures were not adopted by an authority that was not empowered to adopt them. On the contrary, from this particular point of view, the only important factor should, in my opinion, be whether the measures in question are appropriate for dealing with the particular and specific situation of a given institution. After all, whether the measure is individual and specific is the decisive — although, as we shall see, not the only — factor when it comes to determining whether Directive 2001/24 is applicable. (13) 68. In passing, I feel it appropriate to point out in this regard that the question raised cannot be ‘defused’ by the Commission’s argument to the effect that, because the contested legislative provisions were applied to the particular case of Landsbanki by means of specific administrative and judicial decisions, it is in fact those decisions that are relevant for the purposes of the Directive, not Law No 44/2009 itself, which simply provided the legal basis for those individual implementing acts. 69. That argument cannot be accepted, inasmuch as the contested provisions of Law No 44/2009 constitute in themselves a ‘measure’ within the meaning of Directive 2001/24, in that they link to the moratorium granted by court order to Landsbanki effects that fell outside the scope of the judicial authority at the time when it was granted. What we have, therefore, is not a legal provision subsequently put into effect by a court but a legislative provision which the legislature itself applies as the additional and automatic effect of a previous judicial decision. 70. Nor, finally, do I consider admissible, at the other extreme, the argument put forward by Portugal to the effect that, in addition to measures adopted by the administrative and judicial authorities, Directive 2001/24 also covers the rules of law applicable to those measures. If that were the case, there would no longer be any difference between administrative and judicial measures (which are by definition individual and specific), on the one hand, and the general and abstract legislation that constitutes the precondition for those measures, on the other, and Directive 2001/24 would itself be rendered meaningless as a result. 71. It is at all events for the referring court to determine to what extent the Icelandic legislative provisions at issue, in particular Law No 44/2009, which may be applicable to the matter before it in the main proceedings, may be regarded, for the purposes of Article 2 of Directive 2001/24, as ‘measures which are intended to preserve or restore the financial situation of a (14) credit institution’, in this case Landsbanki. To do this, it will have to assess the circumstances in which such measures were developed and adopted, the range of persons to whom they are actually addressed and any possible correlation between the fate of the institutions specifically affected, on the one hand, and the adoption of new legislative measures intended to adjust the legislature’s response to the new circumstances, on the other. In short, it will have to demonstrate that, regardless of its form and its author, functionally, Law No 44/2009 operates as an administrative or judicial decision for the purposes of Directive 2001/24, that is to say, a provision not intended to be of general or repeated application, but geared towards an individual and specific situation. 72. I feel some clarification is required at this point, for, in passing back to the Cour de cassation the task of determining the meaning and scope of Law No 44/2009, the Court would obviously be requiring it to give a ruling not on a rule of its own national law but on a provision of foreign law introduced into the main proceedings by virtue of having been relied on by one of the parties. Consequently, the Cour de cassation will not be able to determine the meaning of that Icelandic law in the same way as it would in the case of a provision of French law, the authentic interpretation of which is a matter for the French courts alone, which are obliged to determine its interpretation in accordance with the principle of jura novit curia. 73. Consequently, for the Cour de cassation, the meaning and scope of Law No 44/2009 is a matter of proof and, as such, dependent on the provision of evidence by the parties. In reality, therefore, it is the parties to the main proceedings who must furnish details of the Icelandic legislation relied on before the French courts, although it is obviously the latter which have to decide whether or not the case has been made in accordance with the rules of evidence applicable in French law. 74. Consequently, I submit by way of a second interim conclusion that, if it is shown, in the manner described above, that Law No 44/2009 may be regarded from a functional point of view as being an administrative or judicial decision for the purposes of Directive 2001/24, the measures which it contains will in principle be equivalent to measures adopted by the ‘administrative and judicial authorities’ within the meaning of that directive. However, in order for that to be definitively the case, a second condition is necessary. (c) Equal treatment of creditors must also be maintained, in particular from the point of view of judicial protection 75. The importance that must, in my opinion, be attached to the objective pursued by Directive 2001/24 of ensuring that reorganisation measures adopted by one Member State are recognised throughout the European Union requires, as I have just submitted, consideration to be given to the content of the measures rather than to the body which adopts them. In this regard, it is my view that the autonomy enjoyed by the Member States in the assignment of public functions must be afforded the greatest respect. 76. That, however, is not the only objective pursued by Directive 2001/24. It also seeks to protect certain rights enjoyed by the creditors of financial institutions which are undergoing reorganisation. Very specifically, the Directive states that ‘the principle of equal treatment between creditors, as regards the opportunities open to them to take action, (15) requires the administrative or judicial authorities of the home Member State to adopt such measures as are necessary for the creditors in the host Member State to be able to exercise their rights to take action within the time-limit laid down’. (16) The Directive also provides, therefore, for the right of creditors to take action against reorganisation measures, thus upholding the right of access to effective judicial protection, now affirmed in Article 47 of the Charter of Fundamental Rights of the European Union. (17) 77. In this connection, the status of the body adopting a reorganisation measure inevitably takes on special relevance. Once again, however, it does so only inasmuch as, in many Member States, individuals have no right of direct action before the courts against measures adopted by the legislature. (18) 78. As I have said, one of the purposes (recognition of reorganisation measures in all Member States) of Directive 2001/24 would be frustrated if certain measures were excluded from its scope on the sole ground that they were adopted by the legislature, irrespective of whether or not, from the point of view of their substance, they satisfy the definition of ‘reorganisation measures’ established by the ‘Directive’. However, another of its purposes (equal treatment of creditors as regards their right to take action against measures affecting them) would also be frustrated if measures adopted by a legislature against which individuals have no right of action were not excluded from the scope of the Directive. 79. Equal treatment of creditors in the context of exercise of the right of action therefore requires reorganisation measures to be taken by means of decisions against which individuals do have a right of action before the courts. Once again, the legislative nature of the provision may pose a problem in this regard. However, this is not always or inevitably so, for, while there are some Member States in which individuals have no right of direct action against measures having the status of legislation, there are other Member States in which such a remedy does exist. 80. Consequently, I submit by way of a third interim conclusion that the possibility that the measures adopted by Law No 44/2009 may be regarded as ‘reorganisation measures’ within the meaning of the Directive (that is to say, measures relating to an individualised financial institution in respect of which all creditors are afforded equal treatment as regards the exercise of their right of access to the courts) is subject to the condition that the legal form taken by such measures must not deprive the persons affected by them of an effective remedy before the Icelandic courts. This, as I stated in points 72 and 73 of this Opinion, is a matter to be determined by the referring courts. B – The second question 81. As I have already said, in my view, the second question raised presents fewer difficulties. 82. The Cour de cassation asks whether Article 32 of Directive 2001/24/EC must be interpreted as precluding a national provision that, from the date when a moratorium enters into force, prohibits or suspends any legal action against a financial establishment from having effect in regard to interim protective measures adopted in another Member State before the declaration of the moratorium. 83. Mr Giraux has submitted that this second question is inadmissible inasmuch as the rule of Icelandic law to which it refers (Article 98 of Law No 161/2002) is not applicable to the matter at issue in the main proceedings. In his opinion, given that that provision precludes only the bringing of legal proceedings against an institution subject to a moratorium, it is inoperative in relation to an attachment order predating that moratorium. He also argues, on the other hand, that the provision in question has been declared unconstitutional and replaced by Law No 44/2009. 84. In my opinion, the question is not inadmissible, for the ground on which it is based is clearly connected to the substance of the issue raised by the Cour de cassation, that is to say, whether attachment orders granted before the moratorium may be affected by a rule which, in principle, only precludes the adoption of interim protective measures against institutions already subject to a moratorium. On the other hand, the fact that the national provision relied on has been declared unconstitutional and replaced by a subsequent law is something whose impact on the determination of the law actually applicable to the main proceedings it is for the referring court to establish. The role of the Court of Justice is simply to assist it in resolving its doubts concerning the compatibility of Article 98 of Law No 161/2002 with EU law, that is to say, concerning one of the factors that it must take into account in forming its view on how to coordinate the application of all the provisions that may in principle be relevant to the resolution of the case before it. 85. As regards the substance of the question, it is my opinion that the answer should be based on the content of recital 30 in the preamble to Directive 2001/24, according to which ‘[t]he effects of reorganisation measures or winding-up proceedings on a lawsuit pending are governed by the law of the Member State in which the lawsuit is pending, by way of exception to the application of the lex concursus. The effects of those measures and procedures on individual enforcement actions arising from such lawsuits are governed by the legislation of the home Member State, in accordance with the general rule established by this Directive.’ 86. As a result of that provision and in accordance with Article 32 of Directive 2001/24, the effects of the moratorium granted by Iceland on proceedings initiated in France will be determined by French law. With specific regard to the effects of the moratorium on enforcement measures arising from those proceedings once they have been concluded, the applicable law will be Icelandic law, in accordance with Article 10(2)(e) of Directive 2001/24. That interpretation, as the Commission points out, does not rule out the possibility of enforcement measures being adopted by the French courts, but simply requires that, when adopting them, they should comply with the rules of the home Member State that are applicable to reorganisation or winding-up measures. 87. In this instance, the applicability of Icelandic law to the rules governing the effects of a moratorium on measures arising from proceedings concluded in other Member States must be regarded as extending to the determination of the scope of such effects ratione temporis, as is clear, ultimately, from Articles 3(2), 9(1) and 10 of Directive 2001/24. 88. In short, I submit, by way of my final interim conclusion, that Article 32 of Directive 2001/24 must be interpreted as not preventing a national provision, such as Article 98 of the Icelandic law of 20 December 2002, from having effect in regard to measures such as those adopted in this instance by another Member State before the declaration of the moratorium provided for in that article. VII – Conclusion 89. In the light of the foregoing observations, I suggest that the Court answer the questions referred as follows: (1) Articles 3 and 9 of Directive 2001/24/EC on the reorganisation and winding-up of credit institutions must be interpreted as meaning that measures adopted by law, such as those contained in Icelandic Law No 44/2009 of 15 April 2009, must not be excluded from the scope of Directive 2001/24 on the sole ground that they were adopted by the national legislature itself. (2) At all events, measures adopted by the legislature must actually be ‘measures’ within the meaning of Directive 2001/24, and therefore relate specifically to financial establishments individualised by their circumstances, and must not entail the prospective amendment of the general legislation in the field in question. (3) The possibility of the measures adopted by Icelandic Law No 44/2009 being regarded as ‘reorganisation measures’ within the meaning of Directive 2001/24 is subject to the condition that their legal form should not deprive the persons affected by them of an effective remedy before the courts. (4) It is for the referring court, when examining Icelandic law as part of its task of determining the facts, to determine whether the conditions set out in the foregoing two paragraphs have been satisfied. (5) Article 32 of Directive 2001/24/EC must be interpreted as not preventing a national provision such as Article 98 of the Icelandic Law of 20 December 2009 from having effect with regard to interim protective measures adopted in another Member State before the moratorium provided for in that article was declared. 1 – Original language: Spanish. 2 – Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ 2001 L 125, p. 15; ‘Directive 2001/24’ or ‘the Directive’). 3 – Landsbanki had been taken over by the Icelandic Financial Supervisory Authority on 7 October 2008, pursuant to Law No 125/2008. On 5 December, the Reykjavik District Court, on application from Landsbanki and pursuant to Law No 16/2008, had granted a moratorium on payments by Landsbank. That moratorium (which was extended several times) was notified as a reorganisation measure in the Official Journal of the European Union of 9 January 2009 (OJ 2009 C4, p. 3), in accordance with Article 6 of Directive 2001/24. The notification stated that legal proceedings could not be brought against Landsbanki while the moratorium was in force. On 29 December 2008 the District Court appointed a winding-up board. On 22 April 2009 the creditors were invited to lodge their claims with the winding-up board before 30 October 2009. That invitation was published in the Official Journal of the European Union of 5 June 2009 (OJ 2009 C 341, p. 12). On 22 November 2010 the District Court decided that Landsbanki should be wound up in accordance with the general rules of Law No 161/2002. That decision too was published in the Official Journal of the European Union of 16 December 2010 (OJ 2010 C 341, p. 12). 4 – The situation is therefore very different from that at issue in Case C‑389/08 Base and Others [2010] ECR I‑9073, concerning Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (OJ 2002 L 108, p. 33) and Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service users’ rights relating to electronic communications networks and services (OJ 2002 L 108, p. 51). These are both directives which do not expressly specify the authorities within the Member States to which the latter are to entrust certain regulatory tasks. The solution adopted by the Court of Justice in paragraph 30 (of the aforementioned judgment), based on respect for the aims of the directives in question, is none the less the same as that which I am proposing here, which is based on the same consideration. 5 – On Directive 2001/24, reference may be had generally to Wessels, B., ‘Commentary on Directive 2001/24/EC on the reorganisation and winding-up of credit institutions», in EU banking and insurance insolvency, 2006, pp. 47 to 103; and Deguée, J.-P., ‘La directive 2001/24/CE sur l'assainissement et la liquidation des établissements de crédit : enfin un droit international privé uniforme des procédures d'insolvabilité en matière bancaire!’, in Sûretés bancaires et financières, 2004, pp. 183 to 226 . 6 – Recital 6 in the preamble to Directive 2001/24. 7 – Recital 7 in the preamble to Directive 2001/24. 8 – Emphasis added. 9 – A discussion of the theoretical basis for this form of statute in the history of constitutional law may be found in Muñoz Machado, S., Tratado de Derecho Administrativo y Derecho Público General I, Iustel, 3rd edition, Madrid, 2011, pp. 682 to 707. See also Santamaría Pastor, J.A., Fundamentos de Derecho Administrativo I, Centro de Estudios Ramón Areces, Madrid, 1988, pp. 513 to 554. 10 – It is after all in those legal systems that a solution has to be found to the question of the permissibility of special legislative provisions, from the point of view of both the internal division of powers and subjective rights, in particular the principle of equal treatment. 11 – Paragraph 10 of its observations. 12 – An account of the Icelandic authorities’ response to the financial crisis can be found in E.G. Gunnarsson, ‘The Icelandic Regulatory Responses to the Financial Crisis’, in European Business Organization Law Review, 12, 2001, pp. 1 to 39. 13 – In this respect, the solution proposed here is in the spirit of that adopted by the Court of Justice in Joined Cases C‑128/09 to C‑131/09, C‑134/09 and C‑135/09 Boxus and Others [2011] ECR I‑9711, paragraphs 35 to 48, where regard was had primarily to the specific procedure used to draft a legislative provision and the information available to the legislature rather to the legislative form of the provision finally adopted. 14 – Emphasis added. 15 – Emphasis added. 16 – Recital 12. Another right of creditors worthy of mention in the Directive is the right to information and publication to enable them to lodge their claims, without discrimination on grounds of their domicile (recital 20). 17 – In this regard, Directive 2001/24 adopts the same approach as Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40), which also excludes from its scope decisions taken by means of legislative acts against which individuals have no right of action before the courts. In this regard, see Case C‑182/10 Solvay and Others [2012] ECR, paragraphs 44 to 52. 18 – On the disparities between the various European models of constitutional jurisdiction, see inter alia F. Rubio Llorente, ‘Seis tesis sobre la jurisdicción constitucional en Europa’, Revista Española de Derecho Constitucional, No 35, 1992, pp. 9 to 39.