VBV - Vorsorgekasse AG v Finanzmarktaufsichtsbehörde (FMA).
Date: 2012-06-07
21. First of all, it is common ground that the acquisition of units of an investment fund constitutes a direct investment in the form of participation in a financial undertaking by means of a shareholding and, consequently, a movement of capital for the purposes of Article 63 TFEU, as has been, moreover, stated in point IV of the nomenclature set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty [Article repealed by the Treaty of Amsterdam] (OJ 1988 L 178, p. 5) and in the explanatory notes appearing in that annex (see, with regard to the ownership of shares and the acquisition of securities, Case C-483/99 Commission  v France  [2002] ECR I-4781, paragraph 37, and Case C-503/99 Commission  v Belgium [2002] ECR I-4809, paragraph 38).
25. In accordance with the Court’s settled case-law, legislation such as that at issue in the main proceedings is, first, likely to deter and, in fact, prevent, by reason of the financial penalty provided for, severance funds from investing their assets in the investment funds established in another Member State and must therefore be classified as a restriction on the movement of capital within the meaning of Article 63(1) TFEU, in principle prohibited by that provision (see, to that effect, Case C-478/98 Commission  v Belgium  [2000] ECR I-7587, paragraph 18, and Case C-171/08 Commission  v Portugal  [2010] ECR I-6813, paragraph 50 and the case-law cited).
28. As regards justification for that impediment, 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 65 TFEU or by overriding reasons in the public interest within the meaning of the Court’s case-law (see, to that effect, Case C-271/09 Commission  v Poland  [2011] ECR I-13613, paragraph 55 and the case-law cited).
29. It must be stated in this regard, first, that the legislation at issue in the main proceedings cannot be justified by reliance on grounds of public policy or public security, as provided for in Article 65(1)(b) TFEU. In accordance with settled case-law, such grounds may be relied on only if there is a genuine and sufficiently serious threat to a fundamental interest of society and, moreover, those grounds must not serve purely economic ends (see, to that effect, Case 30/77 Bouchereau  [1977] ECR 1999, paragraph 35, and Case C-54/99 Église de scientologie  [2000] ECR I-1335, paragraph 17 and the case-law cited).
30. With regard, secondly, to the argument that the restrictions in question are justified under Article 65(1)(b) TFEU, which provides that ‘Article 63 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 may lay down the substantive content of the prudential rules applicable to the undertakings for collective investment created by the severance funds, 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 (see, to that effect, Commission  v Poland , paragraph 56).
31. So far as concerns, third, the alleged justification in terms of overriding reasons in the public interest, it is necessary to recognise that the need to guarantee the stability and security of the assets administered by an undertaking for collective investment created by a severance 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 (see, by analogy, with regard to pension funds, Commission  v Poland , paragraph 57).
36. Lastly, it must be observed that the scheme established by the BMSVG is not part of the Austrian social security system. It is apparent from the file submitted to the Court that that scheme is operated on the basis of the principle of capitalisation, under which the payments, by the employer, of a percentage of the gross remuneration of the worker concerned to the severance fund serve to finance the allowance paid to that latter in the event of the termination of his or her employment relationship. In the context of that scheme, the employee’s sickness insurance institution intervenes only as an intermediary. Consequently, that scheme cannot, notwithstanding its social objective, be regarded, in the light of European Union law, as forming part of the social security system of a Member State (see, by analogy, Commission  v Poland , paragraph 40).