European Commission v Republic of Poland.
Date: 2011-12-21
25. In that regard, it should be borne in mind that the Court may, of its own motion, examine whether the conditions laid down in Article 226 EC for bringing an action for failure to fulfil obligations are satisfied (Case C‑439/99 Commission  v Italy  [2002] ECR I‑305, paragraph 8; Case C‑98/04 Commission v United Kingdom  [2006] ECR I‑4003, paragraph 16; and Case C‑343/08 Commission v Czech Republic  [2010] ECR I‑275, paragraph 25).
28. So far as concerns, second, the reliance on Article 1(3) of the Decree of the Polish Minister for Finance, it is apparent from the file submitted to the Court that that decree is a measure for the application of Article 143 of the Law on pension funds, which is the subject of the present action. Consequently, the fact that the Commission detailed, in its reply, a complaint which it had already set out, in more general terms, in the application did not alter the subject-matter of the alleged infringement, and has thus had no effect on the scope of the proceedings (see, to that effect, Case C‑543/08 Commission  v Portugal  [2010] ECR I‑0000, paragraphs 20, 21 and 23, and the case-law cited).
40. With regard, first of all, to the argument that Article 56 EC is not intended to apply to activities involving the investment of OPF assets on the ground that those activities are not economic in nature, it must be borne in mind that the Court has already held that occupational pension funds operating in accordance with the principle of capitalisation engage, notwithstanding their social objective and the compulsory affiliation to the second pillar for the retirement scheme to which they belong, in economic activity (see Case C‑67/96 Albany  [1999] ECR I‑5751, paragraphs 81 to 87). In accordance with Articles 2, 3, 27 and 29 of the Law on pension funds, the scheme in question is based on the capitalisation principle and the assets of the OPFs are managed and invested by PTEs, which operate for a fee, in the form of a joint-stock company. The evidence, relied on by the Republic of Poland, concerning the prudential supervision of the OPFs and PTEs by the public authorities and the guarantee made by the State to cover any deficits in the OPFs is not such as to call into question the economic nature of the activities in question.
43. As regards, second, the argument of the Republic of Poland that application of Article 56 EC is, in the present case, excluded on the basis of Article 137(4) EC, which prohibits infringement of the right of Member States to define the fundamental principles of their social security systems and states that the financial equilibrium thereof must not be significantly affected, it must be noted that those prohibitions thus laid down apply in respect of ‘provisions adopted pursuant to [that] article’ (see, to that effect, Case C‑343/08 Commission  v Czech Republic , paragraphs 66 and 67). However, that is not the case with regard to Article 56 EC.
44. Third, with regard to the claims based on Article 295 EC, which states that ‘[the] Treaty shall in no way prejudice the rules in Member States governing the system of property ownership’, it must be noted that, in accordance with settled case-law, that article does not have the effect of exempting the Member States’ systems of property ownership from the fundamental rules of the Treaty (see Case C‑171/08 Commission  v Portugal  [2010] ECR I‑0000, paragraph 64 and the case-law cited). Consequently, if the sums held by the OPFs and invested by the PTEs must be considered to be public resources, Article 295 EC cannot relieve the Republic of Poland of its duty to comply with the rules relating to the free movement of capital (see, by analogy, Case C‑367/98 Commission  v Portugal  [2002] ECR I‑4731, paragraph 48), any more than it can justify a restriction on those rules (see, to that effect, Case C‑171/08 Commission  v Portugal , paragraph 64 and case-law cited).
51. It is common ground that Article 143 of the Law on pension funds, first, limits foreign investments by the OPFs to 5% of the value of the assets of the OPF concerned, and, second, sets out a list of possible foreign investments which is less extensive than that for possible investments within Poland pursuant to Article 141(1) of that Law. In doing so, Article 143 of the Law on pension funds imposes both quantitative and qualitative restrictions on OPFs with regard to investments made outside national territory, and in particular in other Member States.
52. Such a provision also has a restrictive effect in relation to companies established in other Member States in that it constitutes an obstacle to the raising, by such companies, of capital in Poland since the acquisition of, inter alia, shares in joint investment bodies is restricted (see, by analogy, Case C‑242/03 Weidert and Paulus  [2004] ECR I‑7379, paragraph 14).
55. Next, as regards justification for the restrictions on free movement of the capital in question, the Court has repeatedly held that the free movement of capital may be limited by national legislation only if this is justified by one of the reasons mentioned in Article 58 EC or by overriding reasons in the public interest within the meaning of the Court’s case-law (see, to that effect, judgment of 14 February 2008 in Case C‑274/06 Commission  v Spain , paragraph 35 and the case-law cited). Moreover, pursuant to Article 86(2) EC, ‘undertakings entrusted with the operation of services of general economic interest … shall be subject to the rules contained in this Treaty, … in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them [and on condition that the] development of trade [is] not … affected to such an extent as would be contrary to the interests of the [European Union]’.
56. With regard, first of all, to the argument that the restrictions in question are justified under Article 58(1)(b) EC, which provides that ‘Article 56 shall be without prejudice to the right of Member States … to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of … the prudential supervision of financial institutions’, suffice it to state that, while the national provisions at issue undoubtedly lay down the substantive content of the prudential rules applicable to the OPFs, they are not, by contrast, in any way whatsoever designed to prevent infringement of the laws and regulations in the field of the prudential supervision of financial institutions. Those provisions cannot, therefore, come within the exception laid down in that article.
57. So far as concerns, second, the alleged justification in terms of overriding reasons in the public interest, it is necessary to point out that the need to guarantee the stability and security of the assets administered by a pension fund, in particular by the adoption of prudential rules, constitutes an imperative reason of public interest which is capable of justifying restrictions on the free movement of capital.
58. Such restrictions must, however, be appropriate to the objective pursued and must not go beyond what is necessary to attain that objective (Case C‑451/05 ELISA  [2007] ECR I‑8251, paragraph 82 and the case-law cited).
70. Third, with regard to the arguments based on Article 86(2) EC, it must be borne in mind that, in accordance with settled case-law, it is incumbent upon a Member State which invokes that article to show that all the conditions for application of that provision are fulfilled (Case C‑160/08 Commission  v Germany  [2010] ECR I‑3713, paragraph 126 and the case-law cited).
71. While it is, admittedly, true that the OPFs are liable to be considered to be performing a task of general economic interest (see, by analogy, Albany , paragraphs 105 to 111), it must nevertheless be pointed out that the Republic of Poland has failed to demonstrate to the requisite legal standard that the conditions for the application of that article are met. In particular, the Republic of Poland has not demonstrated to what extent the application of the Treaty rules, in this case those relating to the free movement of capital between Member States, would obstruct the attainment, in law or in fact, of the objectives pursued by the OPFs.