EN Official Journal of the European Union C 233/8

Action brought on 16 July 2009 — Commission of the European Communities v Republic of Poland

(Case C-271/09)

2009/C 233/12

Language of the case: Polish

Parties

Applicant: Commission of the European Communities (represented by: E. Montaguti and K. Hermann, Agents)

Defendant: Republic of Poland

Form of order sought

— declare that, by maintaining in force Articles 143, 136(3) and 136a(2) of the Law of 28 August 1997 on the organisation and operation of pension funds (Ustawa o organizacji i funkcjonowaniu funduszy emerytalynch), which limit foreign investments by Polish open pension funds, the Republic of Poland has failed to fulfil its obligations under Article 56 EC;

— order the Republic of Poland to pay the costs.

Pleas in law and main arguments

In the view of the Commission, Article 143 of the Law of 28 August 1997 on the organisation and operation of pension funds (‘the Law on Pension Funds’) limits the value of investments outside the Republic of Poland (‘foreign investments’) which open pension funds may make pursuant to paragraph (2) of that article to merely 5 % of the value of the assets of the open pension fund concerned. Furthermore, the list of types of foreign investments set out in Article 143(1) of the Law on Pension Funds does not include a range of investment categories which are available for open pension fund investments within the territory of the Republic of Poland.

Pursuant to Article 136(3) of the Law on Pension Funds, the value of investments in securities with participating rights issued by joint investment bodies which have their place of establishment outside Poland, referred to in Article 143(1) of that Law, is not taken into consideration in the determination of the net assets of open pension funds. By contrast, the level of administration charges for which open pension funds are liable is calculated on the basis of the value of those funds net assets. Consequently, according to the applicant, that provision amounts to a restriction on the movement of capital within the meaning of Article 56 EC inasmuch as it discourages open pension funds from investing assets in non-Polish investment funds.

Article 136a(2) of the Law on Pension Funds provides that the costs of transactions associated with foreign clearing institutions may be met by open pension fund assets only in an amount which does not exceed the corresponding costs of national clearing institutions. This provision may, in the Commission’s view, deter open pension funds from investing outside Poland in so far as they will be unable to cover the costs of transactions from open pension fund assets in the full amount as is possible in the case of national investments.

It is the Commission’s view that Article 56 EC applies to the investment activity of an open pension fund which forms part of the Polish pension system based on the capitalisation of contributions from members of the open pension fund. The restrictions on the movement of capital here in issue cannot be justified on grounds of prudential supervision under Article 58 EC or on overriding grounds of public interest, as quantitative and type-related restrictions are not proper measures by which to guarantee effectively the financial stability of members contributions collected by the open pension funds. In any event, all of the measures here in dispute are disproportionate.