Judgment of the Court of 3 August 2016 in joined Cases E-26/15 and E-27/15 — Criminal proceedings against B and B v Finanzmarktaufsicht (Freedom to provide services — Article 36 EEA — Directive 2005/60/EC — Proportionality)
Date: 2016-08-03
Institutions: EFTA Court
Subjects: Liechtenstein, criminal proceedings, fight against crime, freedom to provide services, interpretation of the law, money laundering, principle of proportionality, provision of services, terrorism, trust company








C_2017120EN.01002501.xml










13.4.2017   


EN


Official Journal of the European Union


C 120/25





JUDGMENT OF THE COURT
of 3 August 2016
in joined Cases E-26/15 and E-27/15
Criminal proceedings against B and B v Finanzmarktaufsicht
(Freedom to provide services — Article 36 EEA — Directive 2005/60/EC — Proportionality)
(2017/C 120/13)
In joined Cases E-26/15 and E-27/15, Criminal proceedings against B and B v Finanzmarktaufsicht — REQUESTS to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by the Princely Court of Appeal of the Principality of Liechtenstein (Fürstliches Obergericht) and the Appeals Board of the Financial Market Authority (Beschwerdekommission der Finanzmarktaufsicht) concerning the interpretation of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 3 August 2016, the operative part of which is as follows:






1.


Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as not precluding a host EEA State from making a trust and company service provider operating in its territory under the freedom to provide services subject to due diligence requirements laid down in its national legislation.










2.


However, in so far as such legislation gives rise to difficulties and additional costs for activities carried out under the rules governing the freedom to provide services and is liable to be additional to the controls already conducted in the home EEA State of the trust and company service provider, thus dissuading the latter from carrying out such activities, it constitutes a restriction on the freedom to provide services. Article 36 EEA must be interpreted as not precluding such legislation provided that it is applied in a non-discriminatory manner, justified by the objective of combating money laundering and terrorist financing, suitable for securing the attainment of that aim and does not go beyond what is necessary in order to attain it. In particular, for national supervisory measures of the host EEA State to be considered proportionate, there should be no general presumption of fraud, leading to full, systematic checks of all those who are established in other EEA States and provide services on a temporary basis in the host EEA State. Furthermore, the host EEA State must, when requesting information, such as documents, located in the EEA State of establishment, grant the service provider a reasonable period of time to provide that information, e.g. by handing over copies of documents. In this regard, the appropriate length of the notice will depend on the volume of documents requested and the medium on which they are stored.










3.


The Court’s answers to the first and second questions do not differ where the company to which administrative services are provided is not incorporated in an EEA State.