Judgment of the Court of 16 May 2017 in Case E-8/16 — Netfonds Holding ASA, Netfonds Bank AS, and Netfonds Livsforsikring AS v The Norwegian Government (Freedom of establishment — Article 31 EEA — Directive 2000/12/EC — Directive 2002/83/EC — Directive 2006/48/EC — Directive 2007/44/EC — Credit institutions — Assurance undertakings — Qualifying holdings — Proportionality — Suitability — Necessity)
Date: 2017-05-16
Institutions: EFTA Court
Subjects: European Economic Area, Norway, bank, credit institution, insurance company, principle of proportionality, right of establishment, shareholder, shareholding, trade licence








C_2017321EN.01001001.xml










28.9.2017   


EN


Official Journal of the European Union


C 321/10





JUDGMENT OF THE COURT
of 16 May 2017
in Case E-8/16
Netfonds Holding ASA, Netfonds Bank AS, and Netfonds Livsforsikring AS v The Norwegian Government

(Freedom of establishment — Article 31 EEA — Directive 2000/12/EC — Directive 2002/83/EC — Directive 2006/48/EC — Directive 2007/44/EC — Credit institutions — Assurance undertakings — Qualifying holdings — Proportionality — Suitability — Necessity)

(2017/C 321/08)
In Case E-8/16, Netfonds Holding ASA, Netfonds Bank AS, and Netfonds Livsforsikring AS v The Norwegian Government — REQUEST 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 Oslo District Court (Oslo tingrett) concerning the interpretation of Articles 31, 36 and 40 of the Agreement on the European Economic Area in the context of the rules and practices applicable to the ownership of Norwegian companies at the time of their application for authorisation as banks or insurance companies, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 16 May 2017, the operative part of which is as follows:






1.


At the material time, Directive 2000/12/EC, Directive 2006/48/EC and Directive 2002/83/EC, also as amended by Directive 2007/44/EC, did not prevent the EEA States from maintaining stricter rules concerning the procedure for the authorisation of banks and insurance companies. Nonetheless, such rules must be compatible with the fundamental freedoms guaranteed by the EEA Agreement.










2.


Legislation as described in Questions 1 and 2 and administrative practice as described in Question 3 constitute restrictions that appear to fall predominantly within the scope of Article 31 EEA. Whether this is the case is for the referring court to assess.










3.


The objective of reducing excessive risk incentives of owners of banks or insurance companies, particularly in relation to the risk of misuse of power, reflects overriding reasons in the general interest capable of justifying national measures which restrict the freedom of establishment as guaranteed by Article 31 EEA. It is for the referring court to identify the objectives which are in fact pursued by the national measures, as well as to determine whether the legitimate aims are pursued in a suitable and consistent manner.










4.


The issue rules, as described in Questions 1 and 2, do not seem suitable to achieve the legitimate objective that the Court has identified. The administrative practice, as described in Question 3, appears suitable to achieve that objective to the extent that it applies to applications for authorisation as a bank or an insurance company and not to secondary acquisitions after the granting of authorisation.










5.


If the referring court finds one or more of the national measures suitable for attaining a legitimate objective, it must also assess whether they go beyond what is necessary in order to attain that objective. In the present proceedings, it appears that measures other than those contested are less restrictive while equally effective in attaining the legitimate objective identified.