Case C-452/04: Reference for a preliminary ruling by the Verwaltungsgericht, Frankfurt am Main by order of that court of 11 October 2004 in the case of Fidium Finanz AG against Bundesanstalt für Finanzdienstleistungsaufsicht
Date: 2005-01-08
Institutions: Court of Justice
Subjects: EU Member State, credit, financial institution, free movement of capital, interpretation of the law, right of establishment, third country

C 6/28

EN

Official Journal of the European Union

8.1.2005

(viii) a claim, where ACT has been paid but subsequently
reclaimed under the provisions described in Question
4,
for loss of use of money between the date of
payment of the ACT and the date on which it was
reclaimed;

(ix) a claim for compensation where the resident company
elected to reclaim the ACT under the arrangements
described in Question 4 and compensated its share-
holders for the inability to receive a tax credit by
increasing the amount of the dividend,

in respect of each of those claims set out above, is it to be
regarded as:

a claim for repayment of sums unduly levied which arise as
a consequence of, and adjunct to, the breach of the above-
mentioned Community provisions; or

a claim for compensation or damages such that the condi-
tions set out in Joined Cases C-46/93 and C-48/93 Brasserie
du Pecheur and Factortame must be satisfied; or

a claim for payment of an amount representing a benefit
unduly denied?

7. In the event that the answer to any part of Question 6 is
that the claim is a claim for payment of an amount repre-
senting a benefit unduly denied:

(a) is such a claim a consequence of, and an adjunct to, the
right conferred by the abovementioned Community
provisions; or

(b) must the conditions for recovery laid down in Joined
Cases C-46/93 and C-48/93 Brasserie du Pecheur and
Factortame be satisfied; or

(c) must some other conditions be met?

8. Does it make any difference to the answers to Questions 6
or 7 whether as a matter of domestic law the claims referred
to in Question 6 are brought as restitutionary claims or are
brought or have to be brought as claims for damages?

9. What guidance,

if any, does the Court of Justice think it
appropriate to provide in the present case as to which
circumstances the national court ought to take into consid-
eration when it comes to determine whether there is a suffi-
ciently serious breach within the meaning of the judgment
in Joined Cases C-46/93 and C-48/93 Brasserie du Pecheur
and Factortame, in particular as to whether, given the state
of the case law of the Court of Justice on the interpretation
of the relevant Community provisions, the breach was excu-
sable or as to whether in any particular case there is a suffi-

cient causal link to constitute a ‘direct causal link’ within the
meaning of that judgment?

(1) Council Directive 90/435/EEC of 23 July 1990 on the common
system of taxation applicable in the case of parent companies and
subsidiaries of different Member States (OJ L 225, 20.8.1990, p. 6).

Reference for a preliminary ruling by the Verwaltungsger-
icht, Frankfurt am Main by order of that court of 11
October 2004 in the case of Fidium Finanz AG against
Bundesanstalt für Finanzdienstleistungsaufsicht

(Case C-452/04)

(2005/C 6/52)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Verwaltungsgericht (Admin-
istrative Court), Frankfurt am Main (Germany) of 11 October
2004 received at the Court Registry on 27 October 2004, for a
preliminary ruling in the case of Fidium Finanz AG against
Bundesanstalt
the
für
following questions:

Finanzdienstleistungsaufsicht

on

1. Can an undertaking having its registered office in a country
outside the European Union, in this case Switzerland, rely
on the freedom of movement of capital under Article 56 EC
in respect of the commercial grant of credit to residents of a
Member State of
in this case the
the European Union,
Federal Republic of Germany, as against that Member State
and the measures taken by its authorities or courts, or are
the preparation, provision and performance of such finan-
cial services covered solely by the freedom to provide
services under Article 49 et seq. EC?

2. Can an undertaking having its registered office in a country
outside the European Union rely on the freedom of move-
ment of capital under Article 56 EC where it grants loans
commercially or predominantly to residents domiciled
within the European Union and has its registered office in a
country in which it is not subject, in relation to the taking
up and conduct of that business activity, to the requirement
of prior authorisation by a State authority of that country
or the requirement of regular supervision of its business
activity in a manner which is customary in respect of credit
institutions within the European Union, and in this particu-
lar case within the Federal Republic of Germany, or does
reliance on freedom of movement of capital in such a case
constitute misuse of the law?

8.1.2005

EN

Official Journal of the European Union

C 6/29

— enable business processes and transactions to be genu-
inely and effectively monitored, that is to say even with
little or no notice, by the bodies of the Member State
concerned,

— render business processes and transactions completely
intelligible by means of the documents available or to be
submitted in the Member State,

— have access to those personally responsible for the
undertaking in the territory of the Member State, and

— ensure, or at least facilitate, payment of the claims of the

undertaking's customers within the Member State?

Can such an undertaking be treated, in relation to the law
of the European Union, in the same way as persons and
undertakings established in the territory of
the relevant
Member State as regards the obligation to obtain authorisa-
tion even though it does not have its registered office in
that Member State and also does not maintain a branch
there?

3. Do rules which make the commercial grant of credit by an
undertaking having its registered office in a country outside
the European Union to residents within the European Union
subject to authorisation being obtained beforehand from an
authority of the relevant Member State of the European
Union in which the borrower is domiciled interfere with the
freedom of movement of capital under Article 56 EC?

In this respect
is it relevant whether the unauthorised
commercial grant of credit constitutes a criminal offence or
merely an administrative one?

4. Is the prior authorisation requirement referred to in Ques-
in particular as

tion 3 justified by Article 58(1)(b) EC,
regards

— protecting borrowers from contractual and financial
obligations towards persons whose reliability has not
been checked beforehand,

Reference for a preliminary ruling by the Landgericht
Berlin by decision of that court of 31 August 2004 in the
commercial register matter of innoventif Limited, inter-
vener: Die Innoventif Limited

— protecting this category of persons from undertakings or
persons operating improperly with regard to their book-
keeping and their obligation under general rules to
provide customers with advice and information,

(Case C-453/04)

(2005/C 6/53)

— protecting this category of persons from inappropriate

or improper advertising,

(Language of the case: German)

— ensuring that

the lending undertaking has adequate

financial resources,

— protecting the capital market
grant of large-scale credits, and

from the unmonitored

— protecting the capital market and society as a whole
from criminal practices as covered in particular by the
provisions on combating money
and
terrorism?

laundering

5. Does Article 58(1)(b) EC cover

the formulation of an
authorisation requirement permissible per se under Com-
munity law – in the sense of Question 3 – to obtain which
is mandatory for the undertaking to have its central
it
administration or at least a branch in the Member State
concerned to be granted authorisation, in particular in order
to

(Berlin) of 31 August 2004 received at

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Landgericht Berlin (Regional
Court)
the Court
Registry on 28 October 2004, for a preliminary ruling in the
commercial register matter of innoventif Limited,
intervener:
Die innoventif Limited on the following question:

Is it consistent with the freedom of establishment for compa-
nies provided for by Article 43 EC and Article 48 EC for the
registration of a branch set up in the Federal Republic of
Germany of a share company which has its registered office in
the United Kingdom to be made subject to the payment of an
advance calculated on the basis of the anticipated cost of the
publication of the objects of the company as set out in the rele-
vant articles of the Memorandum of Association?