Fidium Finanz AG v Bundesanstalt für Finanzdienstleistungsaufsicht.
Date: 2006-10-03
25. Contrary to the chapter of the Treaty concerning the free movement of capital, the chapter regulating the freedom to provide services does not contain any provision which enables service providers in non-member countries and established outside the European Union to rely on those provisions. As the Court found in its Opinion of 15 November 1994, Opinion 1/94 [1994] ECR I-5267, paragraph 81, the objective of the latter chapter is to secure the right to provide services for nationals of Member States. Therefore, Article 49 EC et seq. cannot be relied on by a company established in a non-member country.
28. In that regard, it is apparent from the wording of Article 49 EC and Article 56 EC, and the position which they occupy in two different chapters of Title III of the Treaty, that, although closely linked, those provisions were designed to regulate different situations and they each have their own field of application.
32. That argument cannot be accepted. Although in the definition of the notion of ‘services’ laid down in the first paragraph of Article 50 EC it is specified that the services ‘are not governed by the provisions relating to freedom of movement for goods, capital and persons’, that relates to the definition of that notion and does not establish any order of priority between the freedom to provide services and the other fundamental freedoms. The notion of ‘services’ covers services which are not governed by other freedoms, in order to ensure that all economic activity falls within the scope of the fundamental freedoms.
34. Where a national measure relates to the freedom to provide services and the free movement of capital at the same time, it is necessary to consider to what extent the exercise of those fundamental liberties is affected and whether, in the circumstances of the main proceedings, one of those prevails over the other (see by analogy Case C-71/02 Karner  [2004] ECR I-3025, paragraph 47; Case C‑36/02 Omega [2004] ECR I-9609, paragraph 27; and the judgment of the EFTA Court in Case E-1/00 State Management Debt Agency/Islandsbanki-FBA  [2000] EFTA Court Report 2000-2001, p. 8, paragraph 32). The Court will in principle examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it (see by analogy Case C-275/92 Schindler  [1994] ECR I-1039, paragraph 22; Case C-390/99 Canal Satélite Digital  [2002] ECR I-607, paragraph 31; Karner , paragraph 46; Omega , paragraph 26; and Case C-20/03 Burmanjer and Others  [2005] ECR I-4133, paragraph 35).
39. It is settled case-law that the business of a credit institution consisting of granting credit constitutes a service within the meaning of Article 49 EC (see, to that effect, Case C-484/93 Svensson and Gustavsson  [1995] ECR I-3955, paragraph 11, and Case C-222/95 Parodi  [1997] ECR I-3899, paragraph 17). In addition, Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions (OJ 2000 L 126, p. 1) seeks to regulate the activity of granting loans, inter alia, from the point of view of both the freedom of establishment and the freedom to provide financial services.
41. As regards the notion of ‘capital movements’, there is no definition thereof in the Treaty. It is, however, settled case-law that, inasmuch as Article 56 EC essentially reproduces the contents of Article 1 of Directive 88/361, and even though that directive was adopted on the basis of Articles 69 and 70(1) of the EEC Treaty, (Articles 67 to 73 of the EEC Treaty have been replaced by Articles 73b to 73g of the EC Treaty, now Articles 56 EC to 60 EC), the nomenclature in respect of ‘movements of capital’ annexed to that directive still has the same indicative value, for the purposes of defining the notion of capital movements (see to that effect, inter alia, Case C-222/97 Trummer and Mayer  [1999] ECR I-1661, paragraph 21; Joined Cases C-515/99, C-519/99 to C-524/99 and C-526/99 to C‑540/99 Reisch and Others  [2002] ECR I-2157, paragraph 30; and Case C‑513/03 Van Hilten-van der Heijden  [2006] ECR I-1957, paragraph 39).
42. Loans and credits granted by non-residents to residents feature under Heading VIII of Annex I to Directive 88/361, entitled ‘Financial loans and credits’. According to the explanatory notes of that annex, that category includes consumer credit, inter alia.
43. It follows that the activity of granting credit on a commercial basis concerns, in principle, both the freedom to provide services within the meaning of Article 49 EC et seq. and the free movement of capital within the meaning of Article 56 EC et seq.
44. It is therefore necessary to consider whether, and if necessary to what extent, the rules in dispute affect the exercise of those two freedoms in the circumstances of the main case and whether they are capable of hindering them.
46. The rules in dispute prevent economic operators which do not have the qualities required by the KWG from having access to the German financial market. It is settled case-law that all measures which prohibit, impede or render less attractive the exercise of the freedom to provide services must be regarded as restrictions of that freedom (see, in particular, Case C-439/99 Commission  v Italy  [2002] ECR I‑305, paragraph 22). If the requirement of authorisation constitutes a restriction on the freedom to provide services, the requirement of a permanent establishment is the very negation of that freedom. For such a requirement to be accepted, it must be shown that it constitutes a condition which is indispensable for attaining the objective pursued (see, inter alia, Parodi , paragraph 31, and Commission  v Italy , paragraph 30).
48. As regards the free movement of capital within the meaning of Article 56 EC et seq., it is possible that by making financial services offered by companies which are established outside the European Economic Area less accessible for clients established in Germany, the rules effectively make those clients less inclined to have recourse to those services and, therefore, reduce cross-border financial traffic relating to those services. However, that is merely an unavoidable consequence of the restriction on the freedom to provide services (see to that effect Omega , paragraph 27, and Case C-196/04 Cadbury Schweppes and Cadbury Schweppes Overseas  [2006] ECR I‑0000, paragraph 33, see also by analogy Case C-204/90 Bachmann  [1992] ECR I-249, paragraph 34).
49. It is apparent that, in the circumstances of the main case, the predominant consideration is freedom to provide services rather than the free movement of capital. Since the rules in dispute impede access to the German financial market for companies established in non-member countries, they affect primarily the freedom to provide services. Given that the restrictive effects of those rules on the free movement of capital are merely an inevitable consequence of the restriction imposed on the provision of services, it is not necessary to consider whether the rules are compatible with Article 56 EC et seq.
50. In the light of the above, the answer to the first question referred must be that national rules whereby a Member State makes the granting of credit on a commercial basis, on national territory, by a company established in a non-member country subject to prior authorisation, and which provide that such authorisation must be refused, in particular, if that company does not have its central administration or a branch in that territory, affect primarily the exercise of the freedom to provide services within the meaning of Article 49 EC et seq. A company established in a non-member country cannot rely on those provisions.