Opinion of the Advocate General — ECLI:EU:C:2006:182
Date: 2006-03-16
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of capital;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Freedom to provide services – Free movement of capital – Provisions of the Treaty – Examination of a national measure affecting both freedoms (Arts 49 EC and 56 EC) 2. Freedom to provide services – Provisions of the Treaty – Scope (Arts 49 EC and 56 EC) 1. It is apparent from the wording of Article 49 EC and Article 56 EC, and the position which they occupy in two different chapters of Title III of the Treaty, that, although closely linked, those provisions were designed to regulate different situations and each have their own field of application. Admittedly, it is possible, in certain specific cases in which a national provision concerns both the freedom to provide services and the free movement of capital, that that provision may simultaneously hinder the exercise of both of those freedoms. However, it cannot be argued that, in such circumstances, the provisions concerning the freedom to provide services apply as an alternative to those which govern the free movement of capital. Where a national measure relates both to the freedom to provide services and the free movement of capital at the same time, it is necessary to consider to what extent the exercise of those fundamental liberties is affected and whether, in the circumstances of the main proceedings, one of those prevails over the other. The Court will in principle examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it. (see paras 28, 30-31, 34) 2. National rules whereby a Member State makes the granting of credit on a commercial basis, on national territory, by a company established in a non-member country subject to prior authorisation, and which provide that such authorisation must be refused, in particular, if that company does not have its central administration or a branch in that territory, thereby hindering access to the financial market of a Member State for companies established in non-member States, affect primarily the exercise of the freedom to provide services within the meaning of Articles 49 EC et seq. Given that the restrictive effects of those rules on the free movement of capital are merely an inevitable consequence of the restriction imposed on the provision of services, it is not necessary to consider whether the rules are compatible with Articles 56 EC et seq. A company established in a non-member State cannot rely on Article 49 EC et seq. Unlike the chapter of the Treaty concerning the free movement of capital, the chapter regulating the freedom to provide services does not contain any provision which enables service providers in non-member countries and established outside the European Union to rely on those provisions; the objective of the latter chapter is to secure the right to provide services for nationals of Member States. (see paras 25, 49-50, operative part)