CELEX: C1998/299/29
Language: en
Date: 1998-09-26 00:00:00
Title: Action brought on 28 July 1998 by the Commission of the European Communities against the Republic of Austria (Case C-290/98)

C 299/18             EN                  Official Journal of the European Communities                                     26.9.98
   opportunity of expressing their views before the                     of the motorway to be built, to be regarded as a
   project is initiated, contrary to the requirements of                project to which the Directive does not apply?
   Article 6(2), the Directive not having been fully
   transposed into national law despite the expiry of the           (1) OJ L 175, 5.7.1985, p. 40.
   period laid down for that purpose, or does such a
   finding involve an appraisal of the direct effect of the
   Directive, so that the court is required to refer a
   question on the matter to the Court of Justice of the
   European Communities?
                                                                    Action brought on 28 July 1998 by the Commission of the
                                                                       European Communities against the Republic of Austria
2. If the Court of Justice, in reply to the first question,                                (Case C-290/98)
   holds that the court against whose decisions there is
   no judicial remedy under national law is under an                                         (98/C 299/29)
   obligation to seek a preliminary ruling from the Court
   of Justice, then the question referred is as follows.
                                                                    An action against the Republic of Austria was brought
                                                                    before the Court of Justice of the European Communities
                                                                    on 28 July 1998 by the Commission of the European
   May the abovementioned Directive be applied to a                 Communities, represented by Christina Tufvesson and
   dispute concerning the expropriation on grounds of               Viktor Kreuschitz, of its Legal Service, acting as Agents,
   public utility of immovable property belonging to a              with an address for service in Luxembourg at the office of
   private individual and may the court called on to                Carlos Gómez de la Cruz, a member of the European
   examine the legality of the expropriation procedure              Commission's Legal Service, Wagner Centre C 254,
   find that, contrary to Articles 5(1) and 6(2), no                Kirchberg, Luxembourg.
   environmental impact assessment has been carried out
   and that the information obtained in accordance with
                                                                    The applicant claims that the Court should:
   Article 5 has not been made available to the public
   and that the members of the public concerned have
   not had an opportunity of expressing their views                 1. declare that by
   before the construction of a motorway, a project of
   the kind referred to in Article 4(1), is initiated?                  Ð limiting the prohibition on money laundering
                                                                            contained in paragraph 165 of the Strafgesetzbuch
                                                                            (penal code) to assets having a value of over ATS
                                                                            100 000,
3. Does the act of national legislation mentioned in
   Article 1(5) of the abovementioned Directive have an
   independent meaning in Community law or must it be                   Ð not requiring customer identification when a
   characterised in accordance with domestic law?                           securities account is opened as from 1 January
                                                                            1994 (the date on which the Treaty on the
                                                                            European Economic Area entered into force), but
                                                                            as from 1 August 1996,
4. If the term specific act of national legislation' has an
   independent meaning in Community law, is a measure                   Ð not requiring customer identification for all
   adopted by the parliament after public parliamentary                     transactions into or out of an existing securities
   debate to be regarded as an act of national legislation                  account, but only, under paragraph 40(5) of the
   within the meaning of Article 1(5) of the Directive?                     Bankwesengesetz (bank law), requiring that the
                                                                            customer's identity be established for deposits and
                                                                            purchases of securities for a securities account,
5. Does the term project' as used in Article 1(5) of the               Ð not requiring customer identification whenever a
   abovementioned Directive, the details of which are                       savings account is opened on or after 1 January
   adopted by a specific act of national legislation, have                  1994,
   an independent meaning in Community law or must it
   be characterised in accordance with domestic law?                    Ð not requiring customer identification for all
                                                                            operations relating to a savings account book,
                                                                            whether opened before or after 1 January 1994,
6. If the term project' as used in Article 1(5) of the
   Directive, the details of which are adopted by a                     the Republic of Austria has failed to fulfil its
   specific act of national legislation, has an independent             obligations under the EC Treaty and Articles 2, 3(1),
   meaning in Community law, is the project adopted by                  3(5) and 3(6) of Council Directive 91/308/EEC of
   decision of the parliament after public parliamentary                10 June 1991 on prevention of the use of the financial
   debate to construct a motorway in order to establish a               system for the purpose of money laundering (1) (the
   link with two other roads, without settling the route                Directive');
 ---pagebreak--- 26.9.98              EN                  Official Journal of the European Communities                                  C 299/19
2. order the Republic of Austria to pay the costs.                  transactions) opened or effected before 1 August 1996 if
                                                                    the identity of the customer is established beforehand and
Pleas in law and main arguments adduced in support:                 paragraph 40(2) complied with. However, that provision
                                                                    still infringes paragraphs (5) and (6) of Article 3 of the
                                                                    Directive because it does not cover the eventuality of the
Pursuant to the mandatory requirements of paragraph 3 of            proprietor of such a securities deposit account selling
Article 189 and paragraph 1 of Article 5 of the EC Treaty,          securities held in those accounts, if the securities are
Member States are under an obligation to transpose the              repaid or redeemed.
provisions of a directive addressed to them into national
law so that those provisions become fully effective on the
expiry of the deadline for effecting transposition. That            (1) OJ L 166, 28.6.1991, p. 77.
deadline laid down in Article 16 of the Directive which, in
Austria's case, due to the entry into force of the Treaty on
the European Economic Area, expired on 1 January 1994,
passed without adequate measures to effect transposition
having been taken in respect of the following two areas of
regulation:
                                                                    Appeal brought on 28 July 1998 by Sarrió SA against the
Ð limitation of the scope of the Directive: paragraph 165           judgment delivered on 14 May 1998 by the Third
    of the Strafgesetzbuch makes money laundering a                 Chamber, extended composition, of the Court of First
    criminal offence only where a threshold of ATS                  Instance of the European Communities in Case T-334/94
    100 000 is exceeded. The reference to the anti-money            between Sarrió SA and the Commission of the European
    laundering rules provided for in paragraph 278(a)(2)                                     Communities
    of the Strafgesetzbuch does nothing to allay the                                      (Case C-291/98 P)
    Commission's doubts about the incompatibility of
    paragraph 165 with Community law,                                                       (98/C 299/30)
Ð disclosure of customers' identity: the fact that
    paragraph 40 of the bank law expressly allows                   An appeal against the judgment delivered on 14 May
    anonymous savings account books contradicts                     1998 by the Third Chamber, extended composition, of the
    Article 3(1) of the Directive which requires credit and         Court of First Instance of the European Communities in
    financial institutions to establish the identity of their       Case T-334/94 between Sarrió SA and the Commission of
    customers when entering into business relations,               the European Communities was brought before the Court
    particularly when opening an account or savings                 of Justice of the European Communities on 28 July 1998
    account'.                                                       by Sarrió SA, whose company seat is in Barcelona (Spain),
                                                                    represented by Alberto Mazzoni, of the Milan Bar, Mario
                                                                    Siragusa, of the Rome Bar, and Francesco Maria Moretti,
Paragraph 40(2) of the bank law also infringes Article 3(5)         of the Venice Bar, with an address for service in
of the Directive, which requires credit and financial               Luxembourg at the Chambers of Elvinger, Hoss &
institutions to take reasonable measures in the event of            Prussen, 2, place Winston Churchill.
doubt as to whether their customers are acting on their
own behalf or, where it is certain that they are not acting
on their own behalf, to obtain information as to the real
                                                                    The appellant claims that the Court should:
identity of the person on whose behalf the customers are
acting.
                                                                    1. set aside the judgment of the Court of First Instance of
Paragraph 40(1) (1) of the bank law also infringes                       14 May 1998 in Case T-334/94 Sarrió v. Commission
Article 3(6) of the Directive because in transactions in                 in so far as the Court of First Instance:
connection with an anonymous savings account book,
establishing the identity of the customer carrying out the
transaction is of no practical use and does not in any                   Ð declares that the Commission decision did not
event enable any inferences to be drawn as to the actual                     impute to Sarrió an infringement concerning
economic relations. The duty of identification laid down                     transaction prices and holds that there is no need
in subparagraphs (1), (2) and (3) of paragraph 40 of the                     to evaluate Sarrió's conduct as regards the prices
bank law in relation to specific situations cannot be                        actually applied,
applied meaningfully and in the spirit of the Directive to
transactions connected with anonymous savings account                    Ð declares that the mere fact of having participated
books.                                                                       in the PG Paperboard meetings implicates Sarrió in
                                                                             collusion on market shares and downtime; or, in
Finally, the duty of identification only took effect in                      the alternative, in so far as it does not regard
relation to securities accounts on 1 August 1996, placing                    Sarrió's non-implementation of the agreed
Austria in breach of the Directive up to that point. It is                   strategies as mitigating the seriousness of its
true that under paragraph 40(5) of the bank law, securities                  misconduct      by     comparison     with   other
may only be deposited or purchased for securities accounts                   undertakings and dismisses the evidence adduced
(and, under paragraph 12 of the deposit law, business                        by Sarrió to that effect; or, in the further