Opinion of the Advocate General — ECLI:EU:C:2016:473
Date: 2016-06-22
Language of the case: English
Subject matter: Right of establishment;Economic and monetary policy
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary publication in OJ 2011 C 268, pp. 4 and 5), and Commission Decision C(2015) 2353 final of 9 April 2015 on State aid SA.33442 (2011/N) — Ireland — Restructuring of ILPGH (summary publication in OJ 2015 C 219, pp. 1 and 2). 9 – Directive of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ 2004 L 142, p. 12). The approval was conditional, inter alia, on no application to set aside a direction order issued by the High Court succeeding. 10 – See judgments of 27 November 2012 in Pringle, C‑370/12, EU:C:2012:756, and 16 June 2015 in Gauweiler and Others, C‑62/14, EU:C:2015:400. 11 – See, inter alia, order of 24 March 2011 in Abt and Others, C‑194/10, EU:C:2011:182; judgments of 3 April 2014 in Commission v Netherlands and ING Groep, C‑224/12 P, EU:C:2014:213; EFTA Surveillance Authority v Iceland, E‑16/11, [2013] EFTA Ct. Rep. 4; 5 March 2015 in Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151; order of 15 October 2015 in Banco Privado Português and Massa Insolvente do Banco Privado Português v Commission, C‑93/15 P, EU:C:2015:703; judgments of 12 November 2015 in HSH Investment Holdings Coinvest-C and HSH Investment Holdings FSO v Commission, T‑499/12, EU:T:2015:840; and 28 January 2016 in Austria v Commission, T‑427/12, not published, EU:T:2016:41. See also Fih Holding and Fih Erhvervsbank v Commission, T‑386/14; Ledra Advertising and Others v Commission and ECB, C‑8/15 P, C‑9/15 P and C‑10/15 P; and Mallis and Malli v Commission and ECB, C‑105/15 P to C‑109/15 P, all pending. 12 – C‑526/14, EU:C:2016:102. 13 – See also the first recital of the Second Directive, according to which the ‘activities [of public limited liability companies] predominate in the economy of the Member States and frequently extend beyond their national boundaries’. 14 – See, to that effect, judgment of 12 May 1998 in Kefalas and Others, C‑367/96, EU:C:1998:222, paragraph 25. 15 – Article 17(1) of the Second Directive provides that ‘in the case of a serious loss of the subscribed capital, a general meeting of shareholders must be called within the period laid down by the laws of the Member States, to consider whether the company should be wound up or any other measures taken’; see also judgment of 12 May 1998 in Kefalas and Others, C‑367/96, EU:C:1998:222, paragraph 25. 16 – See judgment of 10 May 1995 in Alpine Investments, C‑384/93, EU:C:1995:126, paragraphs 42 to 44. 17 – See, inter alia, judgments of 9 March 2006 in Matratzen Concord, C‑421/04, EU:C:2006:164, paragraph 20 and the case-law cited. See also in particular, by analogy, judgment of 16 June 2015 in Rina Services and Rina, C‑593/13, EU:C:2015:399, paragraphs 37 to 40. 18 – Judgment of 12 March 1996 in Pafitis and Others, C‑441/93, EU:C:1996:92, paragraphs 49 and 50. 19 – C‑526/14, EU:C:2016:102. 20 – See Dowling & Ors v The Minister for Finance [2014] IEHC 595, paragraph 74 (regarding an application for injunctive relief). 21 – See the judgments of 24 March 1992 in Syndesmos Melon Tis Eleftheras Evangelikis Ekklisias and Others, C‑381/89, EU:C:1992:142; 30 May 1991 in Karella and Karellas, C‑19/90 and C‑20/90, EU:C:1991:229; 12 November 1992 in Kerafina-Keramische und Finanz-Holding and Vioktimatiki, C‑134/91 and C‑135/91, EU:C:1992:434; 12 March 1996 in Pafitis and Others, C‑441/93, EU:C:1996:92; 12 May 1998 in Kefalas and Others, C‑367/96, EU:C:1998:222; and 23 March 2000 in Diamantis, C‑373/97, EU:C:2000:150. 22 – Judgment of 12 March 1996, C‑441/93, EU:C:1996:92, paragraph 57. 23 – See, to that effect, judgment of 12 May 1998 in Kefalas and Others, C‑367/96, EU:C:1998:222, paragraph 28. 24 – See, by way of example, Article 19(2) of the Second Directive, which provides that ‘the laws of a Member State may provide for derogations from the [requirement that authorisation for a company to acquire its own shares be given by the general meeting] where the acquisition of a company’s own shares is necessary to prevent serious and imminent harm to the company’. 25 – See Title VIII of Part III of the TFEU on economic and monetary policy, as well as Article 3.3 of Protocol (No 4) on the Statute of the ESCB and of the ECB. 26 – Given the judgment of 12 March 1996 in Pafitis and Others, C‑441/93, EU:C:1996:92, paragraphs 43 and 51, I refer, first and foremost, to Directive 2001/24 and 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), as amended by 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). Although not applicable at the material time, other directives confirm that evolution, such as Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes (recast) (OJ 2014 L 173, p. 149); and Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ 2014 L 173, p. 190; see in particular Article 123 thereof). 27 – Unlike perhaps more typical examples of a recapitalisation involving either an expropriation (eviction) of the shareholders, or a transfer of assets from an old or ‘bad’ bank to a ‘new’ bank (often followed by the opening of insolvency proceedings in relation to the ‘bad’ bank), the recapitalisation under consideration involved a form of ‘co-habitation’ between the Minister and the other shareholders of ILGPH. It appears from the case file that an increase in capital was preferred for reasons of Irish constitutional law. 28 – Communication from the Commission on the application, from 1 August 2013, of State aid rules to support measures in favour of banks in the context of the financial crisis (OJ 2013 C 216, p. 1). 29 – Directive of the European Parliament and of the Council of 25 October 2012 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning of the European Union, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (recast) (OJ 2012 L 315, p. 74). 30 – See, to that effect, judgment of 23 March 2000 in Diamantis, C‑373/97, EU:C:2000:150, paragraph 32 and the case-law cited. 31 – See, to that effect, judgment of 27 November 2012 in Pringle, C‑370/12, EU:C:2012:756, paragraph 65. 32 – See Articles 5(2), 20(1)(d) and (g), and 32(2) of the Second Directive. 33 – See, as regards the European Central Bank and the national central banks, Article 7 of Protocol (No 4) on the statute of the European System of Central Banks and of the European Central Bank. 34 – Judgments of the High Court of 2 March 2012 in Irish Life and Permanent Group Holdings plc v Credit Institutions Stabilisation Act 2010 [2012] IEHC 89, paragraph 31; of the Supreme Court (Ireland) of 19 December 2013 in Dowling & Ors v Minister for Finance [2013] IESC 58, paragraph 41; and of the High Court of 15 August 2014 in Dowling & Ors v The Minister for Finance [2014] IEHC 418, paragraphs 38.34 and 38.36. 35 – C‑526/14, EU:C:2016:102, points 131 to 144. 36 – As for the first requirement, the Direction Order is a measure adopted by the competent Irish judicial authority; see section 2(1) of the Act, which specifies that the term ‘court’, as used in the Act, denotes the High Court. The second requirement is also met. Indeed, the High Court made, in point E of the Direction Order, a declaration to that effect under section 9(3) of the Act: cf. also section 52 of the Act. Lastly, it follows from point E of the Direction Order that it is to have effect in all applicable jurisdictions in accordance with Directive 2001/24 and the Act. It may therefore affect third parties in accordance with sections 53 and 61 of the Act. 37 – See, to that effect, judgment of 29 June 2010 in Commission v Bavarian Lager, C‑28/08 P, EU:C:2010:378, paragraph 56. 38 – Directive 2001/24 was adopted under Article 47(2) of the EC Treaty (currently Article 53(1) TFEU), while the Second Directive was adopted pursuant to Article 53(3)(g) of the EEC Treaty (currently Article 50(2)(g) TFEU). 39 – See the second recital of the Second Directive. See also judgment of 12 March 1996 in Pafitis and Others, C‑441/93, EU:C:1996:92, paragraph 38. 40 – Judgment of 24 October 2013 in LBI, C‑85/12, EU:C:2013:697, paragraph 39. 41 – Judgment of 12 March 1996 in Pafitis and Others, C‑441/93, EU:C:1996:92. 42 – See, for classic examples, judgments of 17 October 1990 in HAG GF, C‑10/89, EU:C:1990:359, paragraph 10; 24 November 1993 in Keck and Mithouard, C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 16; and 25 July 2008 in Metock and Others, C‑127/08, EU:C:2008:449, paragraph 58. 43 – See, to that effect, judgment of 19 April 2016 in DI, C‑441/14, EU:C:2016:278, paragraphs 39 and 40 and the case-law cited. 44 – See, as an example of the considerable threshold to be met, the judgment of 23 November 2014 in Schulz and Egbringhoff, C‑359/11 and C‑400/11, EU:C:2014:2317 (paragraphs 54 to 64), in the light of the Opinion which I gave in that case (EU:C:2014:319, points 69 to 77). 45 – As clarified in point 23 of the Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (OJ 2012 C 338, p. 1), ‘the [EU] law provisions relevant to the case should be identified as accurately as possible in the request for a preliminary ruling’. 46 – See, to that effect, judgment of 6 September 2011 in Patriciello, C‑163/10, EU:C:2011:543, paragraph 21 and the case-law cited. 47 – See, to that effect, judgment of 1 March 2012 in Ascafor and Asidac, C‑484/10, EU:C:2012:113, paragraph 33 and the case-law cited. 48 – See, to that effect, judgment of 6 September in Patriciello, C‑163/10, EU:C:2011:543, paragraph 21 and the case-law cited. 49 – Judgment of 13 July 1989 in Wachauf, 5/88, EU:C:1989:321, paragraph 19, and Article 51(1) of the Charter. 50 – It has not escaped my attention that, upon consultation, the ECB considered that the ‘emergency powers [under the Act] interfere significantly with the property rights of institutions’ shareholders’: see Opinion of 17 December 2010 on emergency stabilisation of credit institutions (CON/2010/92), point 2.4. Concerning the rights of shareholders to the peaceful enjoyment of their possessions under Article 1 of Protocol No 1 of the European Convention on Human Rights in relation to a takeover of a credit institution by the State, I would refer, inter alia, to the judgment of the European Court of Human Rights of 21 July 2015, Cıngıllı Holding A.Ş. and Cıngıllıoğlu v. Turkey, ECLI:CE:ECHR:2015:0721JUD003183306, §§ 49 to 51 and the case-law cited. See also my Opinion in Kotnik and Others, C‑526/14, EU:C:2016:102, footnotes 55 and 57. 51 – See, inter alia, judgment of 11 January 2000 in Kreil, C‑285/98, EU:C:2000:2, paragraph 23. 52 – See judgment of 18 December 1997 in Molenheide and Others, C‑286/94, C‑340/95, C‑401/95 and C‑47/96, EU:C:1997:623, paragraph 46. 53 – I would add that at the hearing, counsel for ILP and ILPGH stated that the EUR 453 million was in a share premium account and was an excess on the nominal value of the shares on a previous issue. However, that capital had been lost and/or used up.