Société civile immobilière Parodi v Banque H. Albert de Bary et Cie.
Date: 1997-07-09
11 Regarding the free movement of capital, Article 67(1) of the EEC Treaty does not have the effect of abolishing restrictions on movements of capital by the end of the transitional period.  Their abolition is a matter for Council directives adopted on the basis of Article 69 of that Treaty (Case 203/80 Casati [1981] ECR 2595, paragraphs 8 to 13, and Case C-484/93 Svensson and Gustavsson v Ministre du Logement et de l'Urbanisme [1995] ECR I-3955, paragraph 5).
17 Since transactions such as the granting of mortgage loans by banks are services within the meaning of Article 59 of the Treaty, it is necessary to examine whether legislation such as that referred to by the national court is compatible with the Treaty provisions on freedom to provide services.
18 The Court has consistently held in this regard that Articles 59 and 60 of the Treaty require not only the elimination of all discrimination on grounds of nationality against providers of services who are established in another Member State but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a provider of services established in another Member State where he lawfully provides similar services (see, in particular, Case C-3/95 Reisebüro Broede v Sandker [1996] ECR I-6511, paragraph 25).
21 It must be remembered, however, that, as a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by imperative reasons relating to the public interest and which apply to all persons or undertakings pursuing an activity in the State of destination, in so far as that interest is not protected by the rules to which the person providing the services is subject in the Member State in which he is established.  In particular, those requirements must be objectively necessary in order to ensure compliance with professional rules and to guarantee the protection of the recipient of services and they must not exceed what is necessary to attain those objectives (see, in particular, Case 279/80 Webb [1981] ECR 3305, paragraphs 17 and 20; Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 27; and Case C-76/90 Säger v Dennemeyer [1991] ECR I-4221, paragraph 15).
22 It must be recognized in this regard that the banking sector is a particularly sensitive area from the point of view of consumer protection.  It is, in particular, necessary to protect the latter against the harm which they could suffer through banking transactions effected by institutions not complying with the requirements relating to solvency and whose managers do not have the necessary professional qualifications or integrity.
29 Furthermore, a distinction must be drawn according to the nature of the banking activity in question and of the risk incurred by the person for whom the service is intended.  Thus, the conclusion of a contract for a mortgage loan presents the consumer with risks that differ from those associated with the lodging of funds with a credit institution.  In this regard, the need to protect the borrower will vary according to the nature of the mortgage loans, and there may be cases where, precisely because of the nature of the loan granted and the status of the borrower, there is no need to protect the latter by the application of the mandatory rules of his national law (see to this effect Commission v Germany, cited above, paragraph 49).
31 Subject to the national court's determination of this issue, it must be noted that, as the Court has already pointed out, if the requirement of an authorization constitutes a restriction on the freedom to provide services, the requirement of a permanent establishment is the very negation of that freedom.  It has the result of depriving Article 59 of the Treaty of all effectiveness, a provision whose very purpose is to abolish restrictions on the freedom to provide services of persons who are not established in the State in which the service is to be provided.  If such a requirement is to be accepted, it must be shown that it constitutes a condition which is indispensable for attaining the objective pursued (see Commission v Germany, cited above, paragraph 52, and Case C-101/94 Commission v Italy [1996] ECR I-2691, paragraph 31).