Jyske Bank Gibraltar Ltd v Administración del Estado.
Date: 2013-04-25
33. In that regard, it must be borne in mind that, according to settled case-law, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle required to give a ruling (Case C‑416/10 Križan and Others  [2013] ECR I‑0000, paragraph 53 and the case-law cited).
34. It follows that questions concerning European Union law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of European Union law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez  [2010] ECR I‑4629, paragraph 36; and Case C‑509/10 Geistbeck [2012] ECR I‑0000, paragraph 48).
38. It should be noted, first of all, that, according to established case-law, in order to provide a satisfactory answer to the national court which has referred a question to it, the Court of Justice may deem it necessary to consider provisions of European Union law to which the national court has not referred in its question (Case C‑230/06 Militzer & Münch [2008] ECR I‑1895, paragraph 19).
46. Secondly, it should be pointed out that whilst, admittedly, Directive 2005/60 was founded on a dual legal basis (namely, Article 47(2) EC [now Article 53(1) TFEU], and Article 95 EC [now Article 114 TFEU]), and seeks therefore also to ensure the proper functioning of the internal market, its main aim, is the prevention of the use of the financial system for the purposes of money laundering and terrorist financing, as is apparent both from its title and the preamble, and from the fact that it was adopted, like its predecessor, Directive 91/308, in an international context, in order to apply and make binding in the European Union the recommendations of the ‘Financial Action Task Force’ (FATF), which is the main international body combating money laundering.
49. It follows that Article 22(2) of Directive 2005/60 does not, in principle, preclude Member State legislation which requires credit institutions carrying out activities in its territory under the rules on the freedom to provide services to forward the required information directly to its own FIU, in so far as such legislation seeks to strengthen, in compliance with European Union law, the effectiveness of the fight against money laundering and terrorist financing.
58. It is settled case-law of the Court of Justice that Article 56 TFEU requires not only the elimination of all discrimination against providers of services on grounds of nationality or the fact that they are established in a Member State other than that where the services are to be provided, 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 (Joined Cases C-369/96 and C-376/96 Arblade and Others  [1999] ECR I-8453, paragraph 33, and Case C‑577/10 Commission  v Belgium  [2012] ECR I-0000, paragraph 38 and the case‑law cited).
59. Legislation of one Member State, such as that at issue in the main proceedings, which requires credit institutions operating in the territory of that Member State under the freedom to provide services from the territory of another Member State to provide information directly to the FIU of the first Member State, constitutes a restriction on the freedom to provide services, in so far as it gives rise to difficulties and additional costs for activities carried out under the rules governing the freedom to provide services and is liable to be additional to the controls already conducted in the Member State where the institution at issue is situated, thus dissuading the latter from carrying out such activities.
60. Nevertheless, according to the Court’s established case-law, where national legislation falling within an area which has not been completely harmonised at European Union level is applicable without distinction to all persons and undertakings operating in the territory of the Member State concerned, it may, notwithstanding its restrictive effect on the freedom to provide services, be justified where it meets an overriding requirement relating to the public interest and that interest is not already safeguarded by the rules to which the service provider is subject in the Member State in which he is established and in so far as it is appropriate for securing the attainment of the aim which it pursues and does not go beyond what is necessary in order to attain it (see Arblade and Others , paragraphs 34 and 35, and Case C-168/04 Commission  v Austria  [2006] ECR I‑9041, paragraph 37).
61. The combating of money laundering has not been completely harmonised at European Union level. Directive 2005/60 provides for a minimum level of harmonisation and, in particular, Article 5 thereof allows Member States to adopt stricter provisions, where those provisions seek to strengthen the combating of money laundering or terrorist financing.
– Overriding reasons in the public interest
62. The prevention of and the combating of money laundering and terrorist financing are legitimate aims which the Member States have endorsed both at the international and European Union levels.
63. As is stated in the first recital in the preamble to Directive 2005/60, which seeks to implement at European Union level the Recommendations of the FATF, ‘[m]assive flows of dirty money can damage the stability and reputation of the financial sector and threaten the single market, and terrorism shakes the very foundations of our society’. Likewise, the third recital in the preamble to that directive notes that ‘[i]n order to facilitate their criminal activities, money launderers and terrorist financers could try to take advantage of the freedom of capital movements and the freedom to supply financial services’.
64. The Court has moreover already accepted that the combating of money laundering, which is related to the aim of protecting public order, constitutes a legitimate aim capable of justifying a barrier to the freedom to provide services (see, to that effect, Case C-212/08 Zeturf [2011] ECR I-0000, paragraphs 45 and 46).
– Suitability of the national legislation at issue for attaining the aims it pursues
66. Furthermore, as the Advocate General has pointed out in point 109 of his Opinion, such legislation enables the Member State concerned to supervise all financial transactions carried out by credit institutions in its territory, and whatever the manner in which those institutions have chosen to provide their services, whether by establishing a registered office or branch, or under the freedom to provide services. In this way, in accordance with the Court’s established case-law, which states that national legislation is appropriate for ensuring attainment of the aim pursued only if it genuinely reflects a concern to attain it in a consistent and systematic manner (Case C-169/07 Hartlauer  [2009] ECR I-1721, paragraph 55), all the operators are subject to similar obligations, since they are carrying out their activities in the same national territory and offering similar financial services which may, to a greater or lesser degree, be used for the purposes of money laundering or terrorist financing.
68. According to established case-law, measures which restrict the freedom to provide services may be justified by the aim which they pursue only if they are suitable for securing the attainment of that aim and do not go beyond what is necessary in order to attain it (see, to that effect, Case C-255/04 Commission  v France  [2006] ECR I-5251, paragraph 44 and the case-law cited).
85. It follows from all the above considerations that the answer to the question submitted is that:
– Article 22(2) of Directive 2005/60 must be interpreted as not precluding legislation of a Member State which requires credit institutions to communicate the information required for the purpose of combating money laundering and terrorist financing directly to the FIU of that Member State where the institutions carry out their activities in that State under the freedom to provide services, to the extent that that legislation does not compromise the effectiveness of that directive and of Decision 2000/642;
– Article 56 TFEU must be interpreted as not precluding such legislation if the latter is justified by overriding reasons in the public interest,  secures the attainment of the aim in view and does not go beyond that which is necessary in order to attain it, and is applied in a non-discriminatory manner, which it is for the national court to ascertain taking account of the following considerations:
– such legislation is appropriate to attain the aim of preventing money laundering and terrorist financing if it enables the Member State concerned effectively to supervise and suspend suspicious financial transactions concluded by credit institutions offering their services in the national territory and, if appropriate, to pursue and punish those responsible;
– the obligation imposed by that legislation on credit institutions carrying out their activities under the freedom to provide services may constitute a proportionate measure in pursuit of that aim in the absence, at the time of the facts in the main proceedings, of any effective mechanism guaranteeing full and complete cooperation between FIUs.
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