Opinion of the Advocate General — ECLI:EU:C:2015:129
Date: 2015-02-26
Language of the case: Lithuanian
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary — Judgment of the Court (Second Chamber), 25 June 2015 1. Freedom of establishment — Freedom to provide services — Credit institutions — Deposit-guarantee schemes — Directive 94/19 — Member States’ right to exclude certain depositors or deposits from the guarantee — Conditions — Possibility of exclusion limited solely to certificates having all the characteristics of a financial instrument — No such limitation (European Parliament and Council Directives 94/19, as amended by Directive 2009/14, Arts 1, point 1, and 7(2) and Annex I, point 12, and 2004/39, Annex I, Section C) 2. Freedom of establishment — Freedom to provide services — Credit institutions — Deposit-guarantee schemes and investor-compensation schemes — Directives 94/19 and 97/9 — Instruments falling within the scope of each of those directives — Member States’ right to exclude certain deposits or depositors from the guarantees referred to in those directives — National legislation excluding claims against a credit institution from the protection schemes under Directives 94/19 and 97/9 — Unlawful (European Parliament and Council Directives 94/19, as amended by Directive 2009/14, Art. 7(2) and Annex I, point 12, and 97/9, Recital 9 and Art. 4(2)) 3. Freedom of establishment — Freedom to provide services — Investment services — Investor-compensation schemes — Directive 97/9 — Conditions under which applicable — National legislation making entitlement to compensation subject to a condition not provided for in the directive — Unlawful (European Parliament and Council Directive 97/9, Arts 2(2) and 4(2) and Annex I) 4. Acts of the institutions — Directives — Direct effect — Conditions — Consequences (Art. 288, third para., TFEU) 5. Freedom of establishment — Freedom to provide services — Investment services — Investor-compensation schemes — Directive 97/9 — Conditions under which applicable — Direct effect — Scope (Art. 288, third para., TFEU; European Parliament and Council Directive 97/9) 1. Article 7(2) of Directive 94/19 on deposit-guarantee schemes, as amended by Directive 2009/14, and point 12 of Annex I to that directive must be interpreted as meaning that the Member States may exclude from the guarantee provided for by that directive certificates of deposit issued by a credit institution if those certificates are negotiable, a matter which it falls to the referring court to determine, there being no need for it to satisfy itself that those certificates have all the characteristics of a financial instrument within the meaning of Directive 2004/39 on markets in financial instruments. In that regard, neither Article 7(2) of Directive 94/19 nor point 12 of Annex I to that directive provides, for the purposes of the exclusion of the deposit guarantee, that the instruments in question must have all the characteristics of a financial instrument within the meaning of Directive 2004/39. In addition, under Article 1, point 1, of Directive 94/19, the definition of the term ‘deposit’, for the purposes of the directive, includes (i) any credit balance which results from funds left in an account or from temporary situations deriving from normal banking transactions and (ii) any debt evidenced by a certificate issued by a credit institution. Thus, it is clear from the wording of that provision that the concept of ‘deposit’, for the purposes of Directive 94/19, is not defined by reference to the characteristics of a financial instrument within the meaning of Directive 2004/39. It is also clear from that provision that a defining characteristic of the second type of deposit is the fact that it is evidenced by a certificate which may be transferred, so that the claim to the debt which that certificate entails may be traded. (see paras 33, 35, 36, 40, operative part 1) 2. Directive 94/19 on deposit-guarantee schemes, as amended by Directive 2009/14, and Directive 97/9 on investor-compensation schemes must be interpreted as meaning that when claims against a credit institution are such as to be encompassed by both the concept of ‘deposit’ within the meaning of Directive 94/19 and that of ‘instrument’ within the meaning of Directive 97/9, and the national legislature has made use of the option provided for in point 12 of Annex I to Directive 94/19 to exclude those claims from the protection scheme provided for by that directive, such an exclusion cannot result in those claims also being excluded from the protection scheme provided for by Directive 97/9, other than under the conditions mentioned in Article 4(2) of that directive. In that regard, in view of the definitions of the concepts of ‘deposit’ and ‘instrument’ in Directive 94/19 and Directive 97/9 respectively, a single debt security may be encompassed by both those concepts and therefore fall within the scope of both directives. The guarantee schemes provided for by the two directives entail different conditions, in particular in terms of exclusion. Whilst Article 7(2) of Directive 94/19 and Annex I thereto allow for exclusions based on either the type of depositor or the type of deposit, Article 4(2) of Directive 97/9 provides for exclusions solely on the basis of the type of investor. In those circumstances, although EU law does not prevent a Member State from choosing to transpose Directives 94/19 and 97/9 by a single legislative measure, the scheme established by that measure must, as is made clear in recital 9 in the preamble to Directive 97/9, meet the requirements of both directives. (see paras 43-45, 47, operative part 2) 3. Articles 2(2) and 4(2) of Directive 97/9 on investor-compensation schemes must be interpreted as meaning that they preclude national legislation which makes entitlement to compensation under the scheme provided for by that directive conditional upon the credit institution concerned having transferred or used the funds or securities in question without the investor’s consent. Such a condition is not required by Directive 97/9 in order for investors to be able to benefit from the protection scheme provided for by the directive. Moreover, investors holding such instruments are not mentioned amongst those who, under Annex I of Directive 97/9, may be excluded from that system. (see paras 51, 52, operative part 3) 4. See the text of the decision. (see paras 56, 57) 5. Directive 97/9 on investor-compensation schemes must be interpreted as meaning that the national court, provided that it considers that that directive is invoked against a body that meets the conditions for the provisions of that directive to be relied on, is required to refrain from applying a provision of national law which makes entitlement to compensation under the scheme provided for by that directive conditional upon the credit institution concerned having transferred or used the funds or securities in question without the investor’s consent. Directive 97/9 is, in so far it concerns the delimitation of the cases protected, sufficiently clear, precise and unconditional to be relied on directly by individuals before the national courts against the Member State concerned. Consequently, in the case of an action brought against a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals, the national court would have to discount all domestic provisions that are contrary to Directive 97/9 and, accordingly, refrain from applying the condition concerning the use of funds without the investor’s consent, when it comes to define the scope of the investments covered by the protection scheme provided for by that directive. (see paras 58-61, operative part 4)