Case C-452/04: Judgment of the Court (Grand Chamber) of 3 October 2006 (reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main — Germany) — Fidium Finanz AG v Bundesanstalt für Finanzdienstleistungsaufsicht (Freedom to provide services — Free movement of capital — Companies established in non-member countries — Activity entirely or principally directed towards the territory of a Member State — Grant of credit on a commercial basis — Requirement of prior authorisation in the Member State in which the service is provided)
Date: 2006-12-02
Institutions: Court of Justice
Subjects: EU Member State, credit, financial institution, free movement of capital, interpretation of the law, right of establishment, third country

2.12.2006

EN

Official Journal of the European Union

C 294/9

2. Since a decision of the Commission of the European Communities
declaring aid that has not been notified compatible with the
common market does not have the effect of regularising ex post
facto implementing measures which, at the time of their adoption,
were invalid because they had been taken in disregard of the prohi-
bition referred to in the last sentence of Article 88(3) EC, it is of
little consequence whether an application is made before or after
adoption of the decision declaring the aid compatible with the
common market, since that application relates to the unlawful
situation resulting from the lack of notification.

(1143/1994)), which makes the importation of undenatured ethyl
alcohol of an alcoholic strength of more than 80 % subject
to
obtaining prior authorisation, unless it appears that, in the circum-
stances of law and of fact which characterise the situation in the
Member State concerned, the protection of public health and public
order against the harm caused by alcohol can be secured by measures
having less effect on intra-Community trade.

(1) OJ C 300, 04.12.2004.

(1) OJ C 273, 06.11.2004.

Judgment of the Court (Third Chamber) of 28 September
2006 (reference for a preliminary ruling from the Korkein
oikeus — Finland) — Criminal proceedings against Jan-
Erik Anders Ahokainen, Mati Leppik

(Case C-434/04) (1)

(Free movement of goods — Articles 28 EC and 30 EC —
National legislation prohibiting, without prior authorisation,
the importation of undenatured ethyl alcohol of an alcoholic
strength of more than 80 % — Measure having equivalent
effect to a quantitative restriction — Justification on the
grounds of protection of public health and public order)

(2006/C 294/14)

Language of the case: Finnish

Judgment of the Court (Grand Chamber) of 3 October
2006 (reference for a preliminary ruling from the Verwal-
tungsgericht Frankfurt am Main — Germany) — Fidium
Finanz AG v Bundesanstalt für Finanzdienstleistungsauf-
sicht

(Case C-452/04) (1)

(Freedom to provide services — Free movement of capital —
Companies established in non-member countries — Activity
entirely or principally directed towards the territory of a
Member State — Grant of credit on a commercial basis —
Requirement of prior authorisation in the Member State in
which the service is provided)

(2006/C 294/15)

Language of the case: German

Referring court

Korkein oikeus

Parties in the main proceedings

Jan-Erik Anders Ahokainen, Mati Leppik

Referring court

Verwaltungsgericht Frankfurt am Main

Parties to the main proceedings

Applicant: Fidium Finanz AG

Re:

Defendant: Bundesanstalt für Finanzdienstleistungsaufsicht

Reference for a preliminary ruling — Korkein oikeus — Inter-
pretation of Articles 28 EC and 30 EC with respect to national
legislation subjecting the importation of non-denatured ethyl
alcohol of over 80 % to prior authorisation

Re:

Operative part of the judgment

Articles 28 EC and 30 EC do not preclude a system, such as that
(Alkoholilaki
laid down by Law No 1143/1994 on alcohol

Reference for a preliminary ruling — Verwaltungsgericht
Frankfurt am Main — Interpretation of Arts 49, 56 and 58 EC
— Undertaking established in a non-member country whose
loans, are directed
activities, consisting in the granting of
entirely or principally at the territory of a Member State —
Requirement of prior authorisation in the Member State in
which the service is provided

C 294/10

EN

Official Journal of the European Union

2.12.2006

Operative part of the judgment

Operative part of the judgment

National rules whereby a Member State makes the granting of credit
on a commercial basis, on national territory, by a company estab-
lished in a non-member country subject to prior authorisation, and
which provide that such authorisation must be refused, in particular,
if that company does not have its central administration or a branch
in that territory, affect primarily the exercise of the freedom to provide
services within the meaning of Article 49 EC et seq. A company
established in a non-member country cannot rely on those provisions.

(1) OJ C 6, 08.01.2005.

Judgment of the Court (First Chamber) of 28 September
2006 (reference for a preliminary ruling from the Audi-
encia Provincial de Málaga — Spain) — Criminal proceed-
ings against G. Francesco Gasparini, José Ma L.A. Gasparini,
G. Costa Bozzo, Juan de Lucchi Calcagno, Francesco Mario
Gasparini, José A. Hormiga Marrero, Sindicatura Quiebra

1. The ne bis in idem principle, enshrined in Article 54 of

the
Convention implementing the Schengen Agreement of 14 June
1985 between the Governments of
the Benelux
Economic Union, the Federal Republic of Germany and the French
Republic on the gradual abolition of checks at
their common
borders, signed in Schengen on 19 June 1990, applies in respect
of a decision of a court of a Contracting State, made after criminal
proceedings have been brought, by which the accused is acquitted
finally because prosecution of the offence is time-barred.

the States of

2. That principle does not apply to persons other than those whose

trial has been finally disposed of in a Contracting State.

3. A criminal court of a Contracting State cannot hold goods to be
in free circulation in national territory solely because a criminal
court of another Contracting State has found, in relation to the
same goods, that prosecution for the offence of smuggling is time-
barred.

4. The marketing of goods in another Member State, after their
importation into the Member State where
the accused was
acquitted, constitutes conduct which may form part of the ‘same
acts’ within the meaning of Article 54 of the Convention.

(Case C-467/04) (1)

(1) OJ C 6, 08.01.2005.

(Convention implementing the Schengen Agreement —
Article 54 — Ne bis in idem principle — Scope — Acquittal
of the accused because their prosecution for the offence is
time-barred)

(2006/C 294/16)

Language of the case: Spanish

Referring court

Audiencia Provincial de Málaga

Parties in the main proceedings

Judgment of the Court (Grand Chamber) of 3 October
2006 (reference for a preliminary ruling from the Court of
(United
Appeal

(England and Wales)

(Civil Division)

Kingdom)) — B.F. Cadman v Health & Safety Executive

(Case C-17/05) (1)

(Social policy — Article 141 EC — Principle of equal pay for
men and women — Length of service as a determinant of pay
— Objective justification — Burden of proof)

(2006/C 294/17)

Language of the case: English

G. Francesco Gasparini, José Ma L.A. Gasparini, G. Costa Bozzo,
Juan de Lucchi Calcagno, Francesco Mario Gasparini, José A.
Hormiga Marrero, Sindicatura Quiebra

Re:

Referring court

Court of Appeal (Civil Division)

Reference for a preliminary ruling — Audiencia Provincial de
Málaga — Interpretation of Article 54 of
the Convention
implementing the Schengen Agreement of 14 June 1985
between the Governments of
the Benelux
Economic Union, the Federal Republic of Germany and the
French Republic on the gradual abolition of checks at their
common borders (OJ 2000 L 239, p. 19) — Ne bis in idem
principle — Scope — Interpretation of Article 24 EC — Scope

the States of

Parties to the main proceedings

Appellant: B.F. Cadman

Respondent: Health & Safety Executive

Intervener: Equal Opportunities Commission