CELEX: 62002CC0442
Language: en
Date: 2004-03-25 00:00:00
Title: Opinion of Mr Advocate General Tizzano delivered on 25 March 2004. # CaixaBank France v Ministère de l'Économie, des Finances et de l'Industrie. # Reference for a preliminary ruling: Conseil d'État - France. # Freedom of establishment - Credit institutions - National legislation prohibiting the payment of remuneration on sight accounts. # Case C-442/02.

OPINION OF ADVOCATE GENERALTIZZANOdelivered on 25 March 2004(1)
         Case C-442/02CaixaBank FrancevMinistère de l'Économie, des Finances et de l'Industrie(Reference for a preliminary ruling from the Conseil d’État (France))
            (Freedom of establishment  –  Credit institutions  –  National legislation prohibiting the remuneration of ‘sight’ accounts  –  Possible incompatibility with Community law)
            
      
         
        1.        In the present case the Court is asked to clarify whether national rules of a Member State prohibiting the remuneration of
      ‘sight’ current accounts in euros constitute restrictions on the freedom of establishment prohibited by Article 43 EC in so
      far as they apply to the subsidiary formed in that Member State by a legal person from another Member State.
      
      
      I –  Legal background Community law
        2.        The present case essentially involves the provisions of the Treaty on the freedom of establishment, in particular Article 43 EC.
      
      
        3.        It is also appropriate to mention Directive 2000/12/EC, 
         			(2)
         		 which is not directly relevant to the answer to the questions raised by the court of reference but was cited several times
      in the course of the proceedings before the Court.
      
      
        4.        I would recall first that the directive completely recodifies the rules on the freedom of establishment and the freedom to
      provide services in the banking sector, which were introduced in various earlier directives implementing Article 43 EC et
      seq.
      
      
        5.        The directive lays down in particular that only credit institutions authorised by the competent authority of a Member State
      may engage in the business of taking deposits or other repayable funds from the public (Articles 1, 3 and 4); it also provides
      that those institutions that are legal persons and meet a series of harmonised requirements 
         			(3)
         		 may engage in the banking activities covered by the authorisation not only in the State that has authorised them and in which
      they have their head office but also in any other Member State via a branch without legal personality or by way of the provision
      of services, in accordance with a system of mutual recognition of authorisations (Article 18).
      
       National law
        6.        Article L.312-3 of the code monétaire et financier (partie législative) (the French monetary and financial code, hereinafter the ‘monetary code’) lays down rules for the remuneration of ‘sight’
      accounts or accounts for less than five years and provides as follows:
      ‘Notwithstanding any provisions to the contrary, it shall be prohibited for any credit establishment which receives funds
      from the public for sight accounts or accounts for less than five years, by any means whatever, to pay remuneration on those
      funds exceeding that fixed by [regulation of the committee for banking and financial regulation or] 4  –Article 46 of Law No 2003-706 of 1 August 2003 (published in the Journal Officiel of 2 August 2003) deleted the words
      shown in square brackets from Article L.312-3; at the same time, however, Article 47 of that law bestowed permanent validity
      on the regulations of the committee for banking regulation. Hence, no substantial change occurred in the legal framework relevant
      to the case in point, as the French Government expressly confirmed in reply to a question put to it by the Court. the minister responsible for the economy’. 5  –Unofficial translation.
      
      
        7.        By Regulation No 86‑13, the committee for banking and financial regulation (hereinafter the ‘committee for banking regulation’
      or the ‘committee’) 
         			(6)
         		 prohibited the remuneration of sight accounts. 
         			(7)
         		
      
        8.        The prohibition applies to sight current accounts in euros held by persons resident in France.
      
      
      II –  Facts and procedure
        9.        In 2002 Société CaixaBank France (hereinafter ‘CaixaBank France’), a French subsidiary of the Spanish company Caixa Holding,
      notified the committee for banking regulation of its intention to market a ‘sight’ current account bearing interest at 2%
      on balances of EUR 1 500 or more.
      
      
        10.      By a decision of 16 April 2002, the committee prohibited CaixaBank France from concluding new contracts for interest-bearing
      ‘sight’ accounts in the name of persons resident in France and at the same time ordered it to rescind the remuneration clauses
      in existing contracts.
      
      
        11.      The company appealed against that decision to the Conseil d’État (French Council of State), primarily on the ground that the
      prohibition on remunerating the ‘sight’ accounts of residents conflicted with the provisions of the Treaty on the freedom
      of establishment.
      
      
        12.      Recognising the significance of the issue, the Conseil d’État stayed proceedings and submitted the following questions to
      the Court of Justice for a preliminary ruling:
      ‘1. As Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 is silent on the point, does the
      prohibition by a Member State of banking institutions duly established in its territory from remunerating sight accounts and
      other repayable funds constitute an obstacle to freedom of establishment?
       2. If the answer to the first question is in the affirmative, what kind of reasons of public interest might in an appropriate
      case be relied on to justify such an obstacle?’
      
      
        13.      CaixaBank France, BNP Paribas and other French banks that in the meanwhile have intervened in the case in the main proceedings,
      the French Government and the Commission have submitted observations to the Court.
      
      
      III –  Legal assessment The first question
        14.      The positions of the parties with regard to this question can be summarised as follows.
      
      
        15.      CaixaBank and the Commission contend essentially that the application of the disputed measure is an obstacle to the effective
      and profitable pursuit of banking business prohibited by Article 43 EC as interpreted by Community case‑law, especially in
      the Kraus, 
         			(8)
         		Gebhard 
         			(9)
         		 and Pfeiffer Großhandel 
         			(10)
         		 cases, and put forward a number of arguments which I shall consider as necessary below.
      
      
        16.      In addition, the Commission considers that the compatibility of the French regulations with the Treaty should also be assessed
      as regards their possible application to the branches of credit institutions established in another Member State. It contends
      that from this point of view also the regulations infringe Community law in that they incorporate an infringement of the harmonised
      regime laid down for branches by Directive 2000/12.
      
      
        17.      According to France and the intervening French banks, by contrast, Article 43 EC as interpreted by the Court 
         			(11)
         		 essentially requires the country in which a person is established to accord to nationals of other Member States the same
      treatment as it accords to its own nationals as regards the taking-up and pursuit of activities as a self-employed person,
      prohibiting all forms of discrimination based on the nationality of Community citizens, whether that discrimination be direct
      or only indirect and covert.
      
      
        18.      In any event, they maintain that national measures that are applicable without distinction could constitute a restriction
      on the freedom of establishment only where they related to the taking-up of an occupation but not where they merely regulated
      the conditions for pursuing that occupation, as in the present case. 
         			(12)
         		
      
        19.      The restrictive effects of a measure such as that involved in the present case are, they contend, in any case too uncertain
      and indirect to be regarded as a restriction on the freedom of establishment in violation of the Treaty.
      
      
        20.      On the strength of those considerations, I shall now set out my assessment of the case.
      (a) Premiss
      
      
        21.      I note first that the Conseil d’État asks the Court whether the Treaty prevents the application of the disputed measure to
      a French subsidiary of a bank originally established in another Member State. The point at issue therefore relates to the
      exercise of the freedom of movement by establishing a company with autonomous legal personality, in other words a subsidiary.
      
      
        22.      The Court must confine its reply to this issue. Unlike the Commission (see paragraph 16 above), I do not consider that the
      subject-matter of the question can be broadened to include the possible application of the measure at issue to a bank intending
      to engage in banking activities in France via a branch. Not only is that hypothesis not the subject of the question from the
      national court, it is not relevant for resolving the dispute before it.
      (b) The concept of restriction on the freedom of establishment
      
      
        23.      Having clarified that point and moving on to the substance of the question, I note first of all that although the measure
      in question does not have regulation of the taking-up of banking business as its subject-matter, it probably has a significant effect on the economic conditions for  pursuing those activities, and in this regard the parties are to some extent in agreement. The measure precludes an important banking product, such
      as a deposit in a ‘sight’ current account, from producing interest, thus on the one hand making competition between banks
      for this type of product more difficult but on the other hand, and in parallel, making it possible to keep basic banking services
      free, which otherwise are potentially loss-making.
      
      
        24.      The parties differ essentially with regard to whether, by virtue of its effects, such a measure can be described as a restriction
      on the freedom of establishment when applied to the subsidiary of a credit institution originally established in another Member
      State.
      
      
        25.      Indeed, CaixaBank France and the Commission point out that, at least with the Kraus and Gebhard judgments, a broad interpretation of the freedom of movement within the internal market appears to have found its place in
      case-law. In their view, on that interpretation, any national measure that is liable to hamper or to render less attractive
      the exercise by Community nationals of fundamental freedoms guaranteed by the Treaty is therefore prohibited, even if it applies
      without discrimination on grounds of nationality. 
         			(13)
         		
      
        26.      They contend that a similar dissuasive effect would essentially occur whenever a particular national measure reduced the profitability
      of an economic activity, thus also making its pursuit less attractive even under arrangements for the mutual recognition of
      establishment.
      
      
        27.      CaixaBank France further argues that, even in the absence of Community harmonisation of the conditions for engaging in a particular
      economic activity, a Member State wishing to adopt or maintain a given method of regulating that activity by that very act restricts the freedom of establishment of persons from another Member State in which more permissive legislation obtains.
      
      
        28.      The French banks, for their part, have raised doubts as to the true meaning of those judgments: they contend that, if read
      against the background of the circumstances of the cases from which they derived, those judgments essentially do no more than
      criticise discriminatory measures that impinge directly on the taking-up of an economic activity as a self-employed person.
      
      
        29.      For my part, I observe that the case-law of the Court on the freedom of establishment and, more generally, the freedom of
      movement of persons economically active in the internal market is not without ambiguity and therefore lends itself, as in
      this case, to different and even conflicting interpretations. In order to ascertain which of the possible readings of Article 43 EC
      is to be preferred it is therefore necessary to examine that case-law, but not without first briefly examining the wording
      of the Treaty.
      
      
        30.      As is well known, Article 43 EC consists of two paragraphs. The first prohibits ‘restrictions on the freedom of establishment’,
      setting that prohibition ‘within the framework of the provisions set out below’.
      
      
        31.      The second paragraph, in defining the framework within which the prohibition applies, makes clear that the freedom of establishment
      ‘shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings ...
      under the conditions laid down for its own nationals by the law of the country where such establishment is effected’.
      
      
        32.      The traditional Community case-law tended to recognise in the principle of national treatment the essence of the freedom of
      establishment, 
         			(14)
         		 broadly equating the prohibition on restrictions under the first paragraph of Article 43 EC to the prohibition on direct
      or indirect discrimination as regards the conditions for taking up and pursuing economic activities provided for in the second
      paragraph.
      
      
        33.      However, beginning with the Kraus judgment, which dealt with a German measure imposing certain formalities for recognising the legality of a foreign educational
      qualification, the Court appears to have applied a stricter test than that of national treatment, essentially recognising
      that even non-discriminatory measures can constitute a restriction on the freedom of establishment.
      
      
        34.      In the assessment made by the Court in that judgment, the effect of a national measure in discouraging the exercise of the
      freedom of establishment by Community nationals assumes an importance that even goes beyond possible discrimination.
      
      
        35.      In that context the Court does not appear to require that the national measure in question have direct effects on the taking-up of an economic activity for it to be classified as a restriction in contravention of the Treaty; the measure at issue would
      already constitute a significant obstacle within the meaning of Article 52 of the Treaty (now Article 43 EC) by reason of
      its potential adverse repercussions on the economic attractiveness of pursuing certain occupations. 
         			(15)
         		
      
        36.      I should point out, however, that the judgment delivered in the Kraus case also lends itself to another reading, because the adoption of a similar but much more rigorous test could in reality
      have been dictated by the circumstances of the actual case rather than being the result of a general interpretative choice.
      
      
        37.      If one wished to accede to this different interpretative viewpoint, the Court’s approach in the Kraus case was the obvious reaction to the penalising stance of the German regulations towards a person who had obtained a university
      qualification abroad, in that it required that, in order to have that qualification legally recognised, the person in question
      should complete formalities that were not required for educational qualifications obtained in Germany.
      
      
        38.      The same could be said of the subsequent Gebhard judgment and the more recent Mac Quen 
         			(16)
         		 and Payroll Data Services 
         			(17)
         		 judgments, in which it was a question of assessing the compatibility with the Treaty of national measures that directly restricted
      access to a regulated profession by means that were potentially discriminatory.
      
      
        39.      It is true, however, that on such occasions the Court has recourse to a rather broad concept of restriction, using the term
      to cover all ‘national measures liable to  hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty’. 
         			(18)
         		
      
        40.      The same formula is used in the Pfeiffer Großhandel judgment of 1999. 
         			(19)
         		 In that case, however, in contrast to the precedents I have just mentioned, the Court appears to take the concept to its
      logical extreme, classifying a national measure whose effects on the movement of persons were quite plainly anything but immediate
      and direct as a restriction on the freedom of establishment.
      
      
        41.      On that occasion, the Court had been asked to rule on the compatibility with the Treaty of the Austrian regulations to safeguard
      trade names against the risk of confusion. In particular, the Court discussed the prohibition on the subsidiary of a German
      undertaking from using a trade name already used in Germany by the parent company, which was substantially similar to the
      trade name of an Austrian competitor.
      
      
        42.      The measure in question did not relate to the taking-up of an economic activity – food distribution – which as such remained
      open to any operator, national or foreign. Moreover, it was not liable to discriminate, either directly or indirectly, against
      a person making use of the freedom of establishment by treating him in a worse manner than persons originally established
      in that State.
      
      
        43.      Nevertheless, the Court classified the Austrian regulations as a restriction on the freedom of establishment – albeit then
      holding it to be justified by the need to safeguard industrial property – in that it forced the German undertaking and its
      Austrian subsidiary ‘to adjust the presentation of the businesses they operate according to the place of establishment’. 
         			(20)
         		
      
        44.      In the light of such a precedent, it could be maintained, as CaixaBank France essentially does, that any national measure
      that reduces the profit margin on a particular economic activity – thereby making it less attractive, even indirectly, to
      exercise the freedom of establishment – constitutes a restriction on the freedom of establishment.
      
      
        45.      Furthermore, if every national provision that can make the exercise of the freedom of movement less attractive in the sense I have just described
      is prohibited as a matter of principle, it could indeed be held that, in the absence of the harmonisation of national legislation
      on the pursuit of a given economic activity, the State that enforces the most severe legislation automatically creates an
      impediment to the freedom of establishment of persons from other Member States.
      
      
        46.      It could therefore be deduced, with regard to the present case, that, by obliging the CaixaBank group to adopt different commercial
      strategies for its French subsidiary on the one hand and for its subsidiaries and branches operating in the remaining Member
      States on the other, the French measure in question for that very reason creates a restriction on the freedom of establishment
      in violation of Article 43 EC.
      
      
        47.      In numerous other judgments, however, the Court does not apply such a strict test but merely classifies as prohibited restrictions
      on the freedom of movement of persons national measures that directly impede the taking-up of an economic activity or are by nature substantially discriminatory because they do not ensure equal conditions both in law and in fact as regards the taking-up and pursuit of an economic activity.
      
      
        48.      It is worth recalling the judgments in Alpine Investments  of 1995, 
         			(21)
         		Perfili of 1996, 
         			(22)
         		 Futura Participations  of 1997 
         			(23)
         		 and Metallgesellschaft of 2001 
         			(24)
         		 in this connection.
      
      
        49.      In particular, in the Alpine Investments judgment the accent was placed on the criterion of the direct impediment to access.
      
        50.      That case involved a national regulation prohibiting financial market operators established in the Netherlands from using
      the telephone, and in particular ‘cold calling’, 
         			(25)
         		 to contact potential customers, either in the national territory or in the territory of other Member States.
      
      
        51.      According to the Court, although such a prohibition was applicable without distinction it could nevertheless ‘constitute a
      restriction on the freedom to provide cross-border services’ in that it ‘deprive[d] the operators concerned of a rapid and
      direct technique for marketing and for contacting potential clients in other Member States’. 
         			(26)
         		
      
        52.      In response to an objection based on the possible application by analogy of the well-known Keck and Mithouard judgment (with which I shall deal at greater length in paragraph 70 et seq.), the Court also emphasised that ‘a prohibition
      such as that at issue [was] imposed by the Member State in which the provider of services [was] established and affect[ed]
      not only offers made by him to addressees who [were] established in that State or move[d] there in order to receive services
      but also offers made to potential recipients in another Member State’. According to the Court, it followed that the prohibition
      ‘directly affect[ed] access to the market in services in the other Member States’ and was thus ‘capable of hindering intra-Community trade in services’. 
         			(27)
         		
      
        53.      By adding this further specification, the Court therefore appears to have made it clear that, in order for a national measure
      applied without distinction to constitute an obstacle to the freedom to provide services, it must directly affect access to
      the market in services in the other Member States. On the other hand, the fact that ‘other Member States apply less strict
      rules to providers of similar services established in their territory’ is not a sufficient reason for that purpose. 
         			(28)
         		
      
        54.      Indications similar to those that emerge from the Alpine Investments judgment can also be deduced, in my opinion, from the judgments in Bosman (1995), 
         			(29)
         		Semeraro Casa (1996), 
         			(30)
         		SETTG (1997), 
         			(31)
         		Zenatti (1999) 
         			(32)
         		 and Graf (2000). 
         			(33)
         		
      
        55.      It is particularly useful to dwell for a moment on the last judgment mentioned, which was delivered by the Court in plenary
      session. It related to the compatibility with the Treaty of national measures that potentially impeded the decision of a worker
      to leave one job in order to accept another, possibly in a different Member State, because they provided that in such cases
      the worker was not entitled to compensation on termination of employment, thus reducing the economic attractiveness of the
      transfer.
      
      
        56.      The Court rejected the argument that such a measure was an obstacle to the freedom of movement of persons within the internal
      market. Recalling instead the precedent of the Alpine Investments judgment, it stated the principle that ‘provisions which, even if they are applicable without distinction, preclude or deter
      a national of a Member State from ... exercis[ing] his right to freedom of movement’ constitute a restriction on that freedom,
      which is prohibited as a matter of principle by the Treaty, only if they ‘affect access of workers to the labour market’. 
         			(34)
         		 This does not happen, however, if the restrictive effect depends on an ‘event [that] is too uncertain and indirect’. 
         			(35)
         		
      
        57.      On that premiss, I can now attempt to sketch the thread of the analysis made thus far, beginning by repeating the observation
      I made above that the cited case-law is difficult to reduce to a consistent whole and hence, as in this case, lends itself
      to opposing assessments.
      
      
        58.      In an effort to unravel the case-law, I observe first of all that I find it difficult to describe national measures that regulate
      the pursuit of an economic activity without directly affecting access to that activity and without discriminating either in law or in fact between national and foreign operators as restrictions contrary to the Treaty for the sole reason that they reduce the economic attractiveness of pursuing that activity.
      
      
        59.      Such an interpretation, which it would seem possible to deduce to some extent from the Pfeiffer Großhandel judgment cited above, would end up firstly contradicting the system of powers set out in the Treaty.
      
      
        60.      It is acknowledged that the provisions on establishment did not grant the Community general powers to regulate economic activities
      as a self-employed person. On the contrary, they left in place the State powers in that regard, merely prohibiting discrimination
      and obstacles to establishment and creating defined Community powers to harmonise national legislation (Article 57(1) and
      (2) of the Treaty, now Article 47(1) and (2) EC).
      
      
        61.      Hence, where such harmonisation has not taken place, the Member States remain as a matter of principle competent to regulate
      the pursuit of economic activities, by means of non-discriminatory measures.
      
      
        62.      Secondly, that interpretation would permit economic operators – both national and foreign – to abuse Article 43 EC in order
      to oppose any national measure that, solely because it regulated the conditions for pursuing an economic activity, could in
      the final analysis narrow profit margins and hence reduce the attractiveness of pursuing that particular economic activity.
      
      
        63.      However, that would be tantamount to bending the Treaty to a purpose for which it was not intended: that is to say, not in
      order to create an internal market in which conditions are similar to those of a single market and where operators can move
      freely, but in order to establish a market without rules. Or rather, a market in which rules are prohibited as a matter of
      principle, except for those necessary and proportionate to meeting imperative requirements in the public interest.
      
      
        64.      For that reason I do not consider that this is the road to take.
      
      
        65.      By contrast, I consider it appropriate to exploit the various interpretative indications present in Community case-law, according
      to which national measures may ‘hamper or … render less attractive the exercise of freedoms guaranteed by the Treaty’ – and
      thus constitute restrictions on those freedoms – only when certain conditions apply, even though in abstract terms they are
      likely to affect the freedom of movement of persons.
      
      
        66.      In particular, I consider that where the principle of non-discrimination is respected – and hence the conditions for the taking-up and pursuit of an economic activity are equal both in law and in fact – a national measure cannot be described as a restriction on the freedom of movement of persons unless, in the light of its
      purpose and effects, the measure in question directly affects market access.
      
      
        67.      Pointers to that effect can be derived, directly or indirectly, from a large part of the case-law examined above, 
         			(36)
         		 and emerge particularly forcefully from the Alpine Investments and Graf judgments, 
         			(37)
         		 in which the Court was asked to interpret laws bearing on the movement of workers and the provision of services but expounded
      a general principle applicable to the entire sector of the freedom of movement of persons, including the freedom of establishment.
      
      
        68.      In my opinion, the interpretational approach I have outlined also makes it possible to reconcile the objective of merging
      the different national markets into a single common market with the continuation of Member States’ general powers to regulate
      economic activities.
      
      
        69.      Furthermore, it also seems to me that, as the French Government and the intervening banks have rightly stated, the assessment
      criterion that I have proposed makes it possible for the considerable development in the case-law on the movement of goods
      that has taken place over the last 10 years to be taken into account in the field of the freedom of movement of persons.
      
      
        70.      I would point out that in the Keck and Mithouard judgment of 1993 
         			(38)
         		 and in subsequent case-law that has now become established the Court ruled that the application to products from other Member
      States of national provisions prohibiting certain selling arrangements does not constitute a hindrance to trade between Member
      States within the meaning of Article 28 EC so long as those provisions apply to all traders operating within the national
      territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those
      from other Member States. 
         			(39)
         		
      
        71.      The Court goes on to say that this is so because, provided those conditions are fulfilled, the application of such rules ‘is not by nature such as to prevent the access [of products from another Member State] to the market or to impede access any more than it impedes the access of domestic products’. 
         			(40)
         		
      
        72.      The rationale of the Keck and Mithouard judgment therefore lies in the dual criterion of access to the market and discrimination: any national measure that prevents the access of products from another Member State to the market or impedes the access
      of such products any more than it impedes the access of national products constitutes an obstacle to the freedom of movement
      of goods. 
         			(41)
         		
      
        73.      In short, upon close inspection, on the basis of the Keck and Mithouard judgment the case-law on goods establishes a test of the same tenor as that subsequently applied with regard to the freedom
      of movement of persons in the Alpine Investments 
         			(42)
         		 and Graf
         			(43)
         		 judgments.
      
      
        74.      Furthermore, a similar test – which as we have seen is broadly confirmed in the majority of the rulings on the movement of
      persons delivered over the last decade 
         			(44)
         		 – does not in any way conflict with the approach developed by the Court in the Kraus and Gebhard judgments.
      
      
        75.      Indeed, it merely specifies the scope of the concept of restriction propounded in those judgments, without calling the spirit
      of that concept into question. The tightening-up that I have proposed above (in paragraph 66) is aimed solely at ensuring
      that too vague a formulation of that concept does not give rise to distorted readings of the freedom of movement of persons
      that lead to measures being classified as restrictions whose effects on the exercise of that freedom are merely hypothetical
      or entirely uncertain and indirect.
      
      
        76.      I therefore feel able to conclude that, from a general point of view, as regards the freedom of establishment, national rules
      of a Member State regulating the pursuit of economic activities constitute restrictions contrary to the Treaty if they are
      such as to place the operator exercising that freedom in conditions of law or of fact that are worse than those of an operator
      established in the said State or if, by reason of their objective or effects, they directly affect access to the market.
      (c) Classification of the disputed measure
      
      
        77.      Let us now move on to assess more closely the relevant French measure in the present case, that is to say the application
      of the prohibition on remunerating ‘sight’ current accounts to a subsidiary of a foreign credit institution such as CaixaBank
      France.
      
      
        78.      In the light of the criterion I have just enunciated in general terms, verification of the lawfulness of that measure must
      be conducted in accordance with the following logic. First and foremost, it is necessary to ask whether it is discriminatory in law, or whether it is intended to regulate access to banking activities. If that is not the case, it is necessary to establish whether it nevertheless places those subsidiaries
      in a less favourable de facto position by comparison with competitors traditionally established and operating in the French market; or finally whether in any case
      it constitutes a direct obstacle to access to the banking market in view of its effects.
      
      
        79.      I wish to observe first that the supposition that the measure is discriminatory in law can definitely be dismissed – and on
      this point I believe the parties are broadly in agreement – because from a formal point of view the measure does not place
      foreign operators in a less favourable position than nationals as regards the conditions for engaging in banking activities.
      
      
        80.      As to the second point, it is just as easy to rule out the hypothesis that the measure in question is intended to regulate access to banking activities.
      
      
        81.      Indeed, it is a fact that access to banking activities is subject to the granting of authorisation by the competent national
      authority, as provided for in Directive 2000/12. 
         			(45)
         		 The conditions for such authorisation are laid down by the Member States in implementation of the harmonised criteria set
      out in the same directive, and relate to the possession of a given legal form, a given share capital, certain requirements
      for the integrity of shareholders with a significant holding, etc. (see paragraph 5 and footnote 3 above).
      
      
        82.      None of these conditions is altered by the regulations on the remuneration of ‘sight’ current accounts, as those regulations
      merely affect a method of engaging in banking activities by an establishment in possession of the necessary authorisation.
      
      
        83.      That leaves the two further points set out in paragraph 77 above, namely whether the measure in question is liable to place
      the French subsidiaries of foreign banks in a less favourable de facto position than credit institutions originally established
      in France and is therefore discriminatory in substance, or whether in any case, because of its effects, it may directly affect access to the banking market.
      
      
        84.      To my way of thinking, the outcome of such an assessment depends on the effects that the measure in question may actually
      produce in the French banking market. It is therefore necessary to carry out a factual assessment, which must as a matter
      of principle be left to the national court. 
         			(46)
         		
      
        85.      To that end, the national court should ask itself whether it is true, as asserted in essence by CaixaBank France and the Commission,
      that the national measure in question prevents the subsidiaries of foreign banks from competing effectively, as regards the
      taking of deposits from the public, with banks traditionally established in French territory that have an extensive branch
      network, or whether, in contrast, there are other significant ways of competing in that market, as maintained by the French
      Government and the French banks.
      
      
        86.      In particular, it will be necessary to ascertain whether other forms of deposit that can be freely remunerated and by means
      of which banks can compete effectively among themselves for the public’s deposits are easily available in the French banking market.
      
      
        87.      If that is not the case, the subsidiary of a foreign bank could not easily raise capital by taking deposits and would be forced
      to turn to the interbank market to finance its banking activities. It would therefore ultimately have to bear higher costs
      than banks traditionally established in France, which enjoy an advantageous position in the market for the public’s deposits
      by virtue of their large branch networks.
      
      
        88.      It would then have to be concluded that the measure in question was such as to place the subsidiaries of foreign banks in
      a less favourable de facto situation than French banks and thus constituted a restriction on the freedom of establishment prohibited by the Treaty.
      
      
        89.      Moreover, in such circumstances, given the prohibition on offering remunerated ‘sight’ accounts in the market, those banks
      would be deprived of the only effective means of acquiring customers in the French market. From this it would therefore have
      to be concluded that, given its effects, the measure in question was also liable to impede directly the access of the subsidiaries of foreign banks to the French market, thereby leading, from this viewpoint as well, to a restriction on the freedom of establishment within the meaning of Article 43 EC. 
         			(47)
         		(d) Conclusions
      
      
        90.      I therefore conclude by proposing that the Court reply to the first question submitted to it by the French Conseil d’État
      that national rules of a Member State regulating the pursuit of an economic activity constitute restrictions on the freedom
      of establishment prohibited as a matter of principle by Article 43 EC if they are such as to place the operator exercising
      that freedom in less favourable conditions of law and of fact than an operator established in the said State or otherwise
      directly affect access to the market.
      
      
        91.      A national measure such as the prohibition on remunerating ‘sight’ accounts in euros constitutes a restriction on the freedom
      of establishment prohibited by Article 43 EC if its application deprives the subsidiaries of foreign banks of the possibility
      of competing effectively, as regards the taking of deposits from the public, with banks traditionally established in the national
      territory that have an extensive branch network.
      
      
        92.      It is for the national court to make that assessment, ascertaining in particular whether other forms of deposit that can be
      freely remunerated are easily available in the French banking market and by means of which banks can compete effectively in
      that market.
      The second question
      
        93.      In its second question the court of reference asks whether there are reasons of public interest that may justify a restriction
      on the freedom of establishment such as that which may derive from application of the national measure in question.
      
      
        94.      I acknowledge that, within the framework of the division of jurisdiction between the Community judicature and national courts,
      it is not for the Court but for the court of reference – if it considers that the national measure at issue should be regarded
      as a restriction on the freedom of establishment within the meaning of Article 43 EC – to determine whether that restriction
      is justified or not. 
         			(48)
         		
      
        95.      It is an established principle, however, that when giving a preliminary ruling the Court may, where appropriate, provide clarification
      and indicate interpretative criteria designed to give the national court guidance in the judgment it is required to make. 
         			(49)
         		
      
        96.      In this regard it must be pointed out to the national court primarily that, in accordance with constant case-law, national
      measures that restrict the freedom of movement of persons but which apply to any person or undertaking pursuing an activity
      in the territory of the host Member State can be justified if they meet overriding requirements of public interest, provided
      they are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary in
      order to attain that objective. 
         			(50)
         		
      
        97.      France and the intervening French banks maintain, in essence, that the measure in question is justified by the overriding
      requirement to protect consumers and in addition is an expression of important economic policy choices by the French Government.
      
      
        98.      As regards in particular the protection of consumers, abolition of the prohibition at issue would, in their opinion, greatly
      increase the cost of managing current accounts. As a consequence, they contend, banks would have to charge consumers for banking
      services that are currently provided free of charge, including the issue of cheques and cash withdrawals at cash dispensers.
      
      
        99.      Furthermore, in their view, the prohibition on the remuneration of ‘sight’ current accounts is, as stated above, an expression
      of a precise economic policy choice aimed at encouraging medium- and long-term saving, not least in order to curb inflation.
      
      
        100.    According to CaixaBank France and the Commission, such requirements are not such as to justify the measure in question. In
      any case, in their view it does not conform with the principle of proportionality.
      
      
        101.    For my part, I note that both the encouragement of saving and protection of the consumer are objectives worthy of protection
      and the disputed measure does indeed appear to be an appropriate means of attaining them. However, I believe that the instrument
      chosen by the French legislature goes beyond what is necessary in order to attain them, for the reasons which I shall now
      describe.
      
      
        102.    As to the encouragement of long-term saving, to me it seems frankly improbable that the only practical means is a pure and
      simple prohibition on the remuneration of short-term savings. Measures such as the setting of a maximum ceiling on interest
      rates on ‘sight’ accounts or the creation of incentives for medium- and long-term investments would appear, at least prima
      facie, to be entirely adequate alternatives.
      
      
        103.    As to consumer protection, I am inclined to agree with CaixaBank France, which argues that the need to protect consumers by
      keeping basic banking services free could be adequately safeguarded by less restrictive means.
      
      
        104.    Indeed, I too consider that it could be sufficient, for that purpose, to require banking establishments to offer consumers
      who request it a non-interest-bearing ‘sight’ account accompanied by free basic banking services while permitting such establishments
      also to offer remunerated sight accounts linked, if necessary, to fee-paying banking services.
      
      
        105.    That having been said, I must repeat, however, that it is not for the Court to express a final opinion in this regard, because
      it is for the national court to determine whether the conditions laid down in Community legislation (recalled in paragraph 96
      above) are met in the case before that court.
      
      
        106.    It cannot be ruled out that in that context circumstances will emerge or arguments will be put forward that can be relied
      upon to justify a measure such as that at issue in the case before the national court. As matters stand, however, I repeat
      that it seems to me that the measure in question cannot be considered to be justified by overriding requirements of public
      interest such as consumer protection or the encouragement of saving because it goes beyond what is necessary to attain such
      objectives.
      
      
        107.    I therefore propose that the Court reply to the second question submitted by the French Conseil d’État that, if national measures
      such as those at issue constitute a restriction on the freedom of establishment within the meaning of Article 43 EC, it must
      be held – on the basis of the facts presented to the Court – that such a restriction is not justified by the pursuit of the
      overriding requirements of public interest invoked in the present case, specifically consumer protection and the encouragement
      of saving.
      
       
      IV –  Conclusion
        108.    In the light of all the foregoing, I propose that the Court reply as follows to the questions submitted by the French Conseil
      d’État:
      
      (1)
         National rules of a Member State regulating the pursuit of an economic activity constitute restrictions on the freedom of
            establishment prohibited as a matter of principle by Article 43 EC if they are such as to place the operator exercising that
            freedom in less favourable conditions of law and of fact than an operator established in that State or otherwise directly
            affect access to the market.
         
      
      
            A national measure such as the prohibition on the remuneration of ‘sight’ accounts in euros constitutes a restriction on the
                  freedom of establishment prohibited by Article 43 EC if its application deprives the subsidiaries of foreign banks of the
                  possibility of competing effectively, as regards the taking of deposits from the public, with banks traditionally established
                  in the national territory that have an extensive branch network.
               
               
            
      
      
      
            It is for the national court to make that assessment, ascertaining in particular whether other forms of deposit that can be
                  freely remunerated are easily available in the French banking market and by means of which banks can compete effectively in
                  that market.
               
               
            
      
      
      
      (2)
         If national measures such as those at issue constitute a restriction on the freedom of establishment within the meaning of
            Article 43 EC, it must be held – on the basis of the facts presented to the Court – that such a restriction is not justified
            by the pursuit of the overriding requirements of public interest invoked in the present case, specifically consumer protection
            and the encouragement of saving.
         
      
      
      
       1 –
         
         Original language: Italian.
      
      2 –
         
         Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit
            of the business of credit institutions (hereinafter ‘Directive 2000/12’ or the ‘directive’; OJ 2000 L 126, p. 1).
            
         
      
      3 –
         
         Especially with regard to: initial capital (Article 5), requirements for persons responsible for management and location of
            the head office (Article 6), suitability of shareholders and members holding a qualifying participation (Article 7) and programme
            of operations (Article 8).
            
         
      
      4 –
         
         Article 46 of Law No 2003-706 of 1 August 2003 (published in the Journal Officiel of 2 August 2003) deleted the words shown in square brackets from Article L.312-3; at the same time, however, Article 47
            of that law bestowed permanent validity on the regulations of the committee for banking regulation. Hence, no substantial
            change occurred in the legal framework relevant to the case in point, as the French Government expressly confirmed in reply
            to a question put to it by the Court.
            
         
      
      5 –
         
         Unofficial translation.
            
         
      
      6 –
         
         See footnote 4.
            
         
      
      7 –
         
         Decision No 92-13 of that committee extended the prohibition to deposit-taking carried out in France by the branches of banks
            with their head office in another Member State.
            
         
      
      8 –
         
         Judgment in Case C-19/92 Kraus [1993] ECR I-1663.
            
         
      
      9 –
         
         Judgment in Case C-55/94 Gebhard [1995] ECR I-4165.
            
         
      
      10 –
         
         Judgment in Case C-255/97 Pfeiffer Großhandel [1999] ECR I-2835.
            
         
      
      11 –
         
         See the judgments in Cases 197/84 Steinhauser [1985] ECR 1819, C‑111/91 Commission v Luxembourg [1993] ECR I-817, and C‑168/91 Konstantinidis [1993] ECR I‑1191.
            
         
      
      12 –
         
         The banks base their argument on the judgments in Cases C‑415/93 Bosman and Others [1995] ECR I‑4921 and C‑190/98 Graf [2000] ECR I‑493 regarding workers, and Cases C‑384/93 Alpine Investments [1995] ECR I‑1141, C‑98/01 Commission v United Kingdom [2003] ECR I‑4641 and C‑463/00 Commission v Spain [2003] ECR I‑4581, ‘Golden shares’ regarding the freedom of movement of services and capital respectively.
            
         
      
      13 –
         
         See Kraus, paragraph 32, and Gebhard, paragraph 37.
            
         
      
      14 –
         
         See to that effect, among many others, the judgments in Cases 71/76 Thieffry [1977] ECR 765, paragraph 19, and Steinhauser, cited above, paragraph 14.
            
         
      
      15 –
         
         See in particular paragraphs 21 and 22, which I reproduce below: ‘21. … the holder of a diploma such as that in question in
            the main proceedings may find himself in an advantageous position in the pursuit of his professional activity in so far as
            through possession of that diploma, he can obtain higher remuneration or more rapid advancement or, in the course of his career, access to certain specific posts reserved to persons with particularly high qualifications.
             22. Similarly, the possibility of using academic titles awarded abroad and supplementing national diplomas required for access
            to a profession greatly facilitates establishment as an independent practitioner and, in any event, the pursuit of a corresponding professional activity.’ My italics.
            
         
      
      16 –
         
         Judgment in Case C‑108/96 Mac Quen [2001] ECR I‑837.
            
         
      
      17 –
         
         Judgment in Case C‑79/01 Payroll Data Services [2002] ECR I‑8923.
            
         
      
      18 –
         
         See Gebhard, paragraph 37; emphasis added.
            
         
      
      19 –
         
         Cited above in footnote 10.
            
         
      
      20 –
         
         The Pfeiffer Großhandel judgment, cited above, paragraph 20.
            
         
      
      21 –
         
         Cited above in footnote 12.
            
         
      
      22 –
         
         Case C‑177/94 Perfili [1996] ECR I‑161.
            
         
      
      23 –
         
         Case C‑250/95 Futura Participations [1997] ECR I‑2471.
            
         
      
      24 –
         
         Joined Cases C‑397/98 and C‑410/98 Metallgesellschaft and Others [2001] ECR I‑1727.
            
         
      
      25 –
         
         The use of the telephone to offer services to potential customers without their having granted prior authorisation.
            
         
      
      26 –
         
         .Alpine Investments, paragraph 28.
            
         
      
      27 –
         
         Paragraph 38; my italics.
            
         
      
      28 –
         
         Paragraph 27. Previous judgments to the same effect were delivered in Case 1/78 Kenny [1978] ECR 1489, paragraph 18, Joined Cases 185/78 to 204/78 Van Dam en Zonen and Others [1979] ECR 2345, paragraph 10, Joined Cases C‑251/90 and C‑252/90 Wood and Cowie [1992] ECR I‑2873, paragraph 19, Case C‑379/92 Peralta [1994] ECR I‑3453, paragraph 48, and Perfili, cited above, paragraph 17.
            
         
      
      29 –
         
         Cited above in footnote 12.
            
         
      
      30 –
         
         Joined Cases C‑418/93 to C‑421/93, C‑460/93 to C‑462/93, C‑464/93, C‑9/94 to C‑11/94, C‑14/94, C‑15/94, C‑23/94, C‑24/94 and
            C‑332/94 Semeraro Casa and Others [1996] ECR I‑2975.
            
         
      
      31 –
         
         Case C-398/95 SETTG [1997] ECR I‑3091.
            
         
      
      32 –
         
         Case C‑67/98 Zenatti [1999] ECR I‑7289.
            
         
      
      33 –
         
         Cited above in footnote 12.
            
         
      
      34 –
         
         .Graf, paragraph 23. Emphasis added. Unlike the Italian version, neither the French text nor the other language versions has the
            adverb ‘directly’; in fact, the French text reads ‘pour être aptes à constituer de telles entraves, il faut qu’elles conditionnent
            l’accès des travailleurs au marché du travail’. It is worth recalling that in applying that criterion to the case in question
            the Court emphasised in particular that ‘legislation of the kind at issue in the main proceedings [was] not such as to preclude
            or deter a worker from ending his contract of employment in order to take a job with another employer, because the entitlement
            to compensation on termination of employment [was] not dependent on the worker’s choosing whether or not to stay with his
            current employer but on a future and hypothetical event, namely the subsequent termination of his contract without such termination
            being at his own initiative or attributable to him’ (paragraph 24).
            
         
      
      35 –
         
         Paragraph 25. In the case in question, according to the Court, the loss of entitlement to compensation on termination of employment
            was ‘too uncertain and indirect a possibility for legislation to be capable of being regarded as liable to hinder freedom
            of movement for workers where it [did] not attach to termination of a contract of employment by the worker himself the same
            consequence as it attache[d] to termination which was not at his initiative or [was] not attributable to him’.
            
         
      
      36 –
         
         In paragraph 48 et seq.
            
         
      
      37 –
         
         See paragraph 55 et seq. above.
            
         
      
      38 –
         
         In Joined Cases C‑267/91 and C‑268/91 Keck and Mithouard [1993] ECR I‑6097.
            
         
      
      39 –
         
         .Keck and Mithouard, paragraph 16.
            
         
      
      40 –
         
         .Keck and Mithouard, paragraph 17. Emphasis added.
            
         
      
      41 –
         
         Among many others, see to this effect Keck and Mithouard, paragraph 17, and the judgments in Case C‑292/92 Hünermund and Others [1993] ECR I‑6787, paragraph 21, Joined Cases C‑401/92 and C‑402/92 Boermans [1994] ECR I‑2199, paragraph 12, Case C‑412/93 Leclerc‑Siplec [1995] ECR I‑179, paragraph 21, Case C‑391/92 Commission v Greece [1995] ECR I‑1621, paragraph 13, Case C‑254/98 TK-Heimdienst [2000] ECR I‑151, paragraph 26, Case C‑405/98 Gourmet International Products [2001] ECR I‑1795, paragraph 18. See, to the same effect, the Opinion of Advocate General Fennelly in Case C‑190/98 Graf, cited above, paragraph 19. Most recently, see the judgment in Case C‑322/01 Deutscher Apothekerverband [2003] ECR I‑0000, paragraph 67 et seq.
            
         
      
      42 –
         
         See paragraph 49 et seq. above.
            
         
      
      43 –
         
         See paragraph 55 et seq. above.
            
         
      
      44 –
         
         See paragraph 44 et seq. above. In addition, for an approach compatible with that set out in the text, see the judgments in
            Cases C‑208/00 Überseering [2002] ECR I‑9919, paragraph 78 et seq. (complete denial of access), C‑436/00 X and Y [2002] ECR I‑10829, paragraphs 36 and 37 (indirect discrimination), and C‑243/01 Gambelli and Others [2003] ECR I‑0000, paragraph 48 (indirect discrimination).
            
         
      
      45 –
         
         See paragraph 5 above.
            
         
      
      46 –
         
         Among many others, see the judgments in Cases C‑107/98 Teckal [1999] ECR I‑8121, paragraphs 29 and 31, C‑318/98 Fornasar and Others [2000] ECR I‑4785, paragraph 32, and C‑421/01 Traunfellner [2003] ECR I‑0000, paragraph 21.
            
         
      
      47 –
         
         In the hypothetical case presented, the effect of the prohibition on remunerating current accounts would be somewhat similar
            to that of the prohibition on ‘cold calling’ examined in the Alpine Investments judgment (see paragraph 50 et seq. above). In that case, as we have seen, it was deemed that the prohibition could ‘constitute
            a restriction on the freedom to provide cross‑border services’ in that it ‘deprive[d] the operators concerned of a rapid and
            direct technique for marketing and for contacting potential clients in other Member States’ (paragraph 28).
            
         
      
      48 –
         
         Judgments in Cases C‑424/97 Haim [2000] ECR I‑5123, paragraph 58, and Payroll Data Services, cited above, paragraph 29.
            
         
      
      49 –
         
         Ibid.
            
         
      
      50 –
         
         Judgments in Kraus, paragraph 32, Gebhard, paragraph 37, Case C‑212/97 Centros [1999] ECR I‑1459, paragraph 34, Pfeiffer Großhandel, paragraph 19, Haim, paragraph 57, and Payroll Data Services, paragraph 28.