‘Private Equity Insurance Group’ SIA v ‘Swedbank’ AS.
Date: 2016-11-10
23


To that end, Directive 2002/47 establishes a regime, the objective of which, as is apparent from recitals 5, 9, 10 and 17 thereof, is to limit the administrative burdens for parties using financial collateral under the scope of the directive, to improve the legal certainty of such collateral by ensuring that certain provisions of national insolvency law do not apply to financial collateral arrangements and to provide for rapid and non-formalistic enforcement procedures in order to safeguard financial stability and limit contagion effects in case of a default of a party to a financial collateral arrangement.
25


Second, Article 4(1) of Directive 2002/47 provides that the taker of collateral under a security financial collateral arrangement must be able to realise the collateral in any of the manners described in the directive. Under Article 4(5) of the directive, Member States are to ensure that a financial collateral arrangement can take effect in accordance with its terms notwithstanding the commencement or continuation of winding-up proceedings or reorganisation measures in respect of the collateral provider or collateral taker.
39


In the absence of any express reference to the laws of the Member States, that criterion must be given an autonomous and uniform interpretation throughout the European Union which takes into account its wording, context and objective (see, to that effect, judgment of 16 July 2015, A, C‑184/14, EU:C:2015:479, paragraphs 31 and 32 and the case-law cited).
49


Lastly, in so far as the referring court is uncertain whether the regime established by Directive 2002/47 is compatible with the principle that creditors are to be treated equally in insolvency proceedings, it should also be borne in mind that it is established case-law that the principle of equality before the law, set out in Article 20 of the Charter of Fundamental Rights of the European Union, is a general principle of EU law which requires that comparable situations should not be treated differently and that different situations should not be treated in the same way, unless such different treatment is objectively justified. A difference in treatment is justified if it is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment (judgment of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraphs 76 and 77 and the case-law cited).
50


As is apparent from paragraph 26 above, while it establishes that the provision of financial collateral cannot be dependent of the performance of formal acts, the regime introduced by Directive 2002/47 confers on collateral takers the right to enforce the collateral notwithstanding the commencement of insolvency proceedings in respect of the collateral provider. That regime therefore confers an advantage on financial collateral by comparison with other types of security which fall outside the scope of the directive.
56


In that regard, according to the Court’s established case-law, the justification for a request for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute concerning EU law (see, to that effect, judgment of 7 November 2013, Romeo, C‑313/12, EU:C:2013:718, paragraph 40 and the case-law cited).
61


According to the Court’s settled case-law, the requirements concerning the content of a request for a preliminary ruling are expressly set out in Article 94 of the Court’s Rules of Procedure, of which the national court should, in the context of the cooperation instituted by Article 267 TFEU, be aware and which it is bound to observe scrupulously (orders of 12 May 2016, Security Service and Others, C‑692/15 to C‑694/15, EU:C:2016:344, paragraph 18, and 8 September 2016, Google Ireland and Google Italy, C‑322/15, EU:C:2016:672, paragraph 15).
62


Thus, the court making the reference must set out the precise reasons that led it to raise the question of the interpretation of certain provisions of EU law and to consider it necessary to refer questions to the Court for a preliminary ruling. The Court has previously held that it is essential that the national court should give at the very least some explanation of the reasons for the choice of the EU law provisions which it seeks to have interpreted and of the link it establishes between those provisions and the national legislation applicable to the proceedings pending before it (judgment of 10 March 2016, Safe Interenvíos, C‑235/14, EU:C:2016:154, paragraph 115, and order of 12 May 2016, Security Service and Others, C‑692/15 to C‑694/15, EU:C:2016:344, paragraph 20).
63


It should be noted in that regard that the information provided in requests for a preliminary ruling serves not only to enable the Court to provide useful answers to the questions submitted by the referring court, but also to ensure that the governments of the Member States and other interested parties have the opportunity to submit observations, in accordance with Article 23 of the Statute of the Court of Justice of the European Union (see, to that effect, judgment of 5 July 2016, Ognyanov, C‑614/14, EU:C:2016:514, paragraph 20, and order of 8 September 2016, Google Ireland and Google Italy, C‑322/15, EU:C:2016:672, paragraph 17).
66


In the light of those shortcomings, the order for reference does not provide the governments of the Member States or other interested parties within the meaning of Article 23 of the Statute of the Court of Justice with the opportunity to submit useful observations on the fifth question or the Court to provide a useful answer to the referring court to enable it to resolve the dispute pending before it.