Case C-453/04: 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, intervener: Die Innoventif Limited
Date: 2005-01-08
Institutions: Court of Justice
Subjects: Germany, United Kingdom, advance payment, branch, company with share capital, interpretation of the law, overheads, registration of a company, right of establishment

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?