OC e.a. and Others v Banca d'Italia and Others.
Date: 2020-07-16
30


In that regard, it must be borne in mind that the functioning of the system of cooperation between the Court of Justice and the national courts established by Article 267 TFEU requires, as does the principle of primacy of EU law, the national court to be free to refer to the Court for a preliminary ruling any question that it considers necessary, at whatever stage of the proceedings it considers appropriate, even at the end of an interlocutory procedure for the review of constitutionality (judgments of 22 June 2010, Melki and Abdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 52, and of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 22).
31


The effectiveness of EU law would be impaired and the effectiveness of Article 267 TFEU diminished if, as a result of the existence of a procedure for review of constitutionality, the national court were precluded from referring questions to the Court for a preliminary ruling and immediately applying EU law in a manner consistent with the Court’s decision or case-law (judgment of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 23).
32


As a supreme court, the Consiglio di Stato (Council of State) is indeed obliged, in accordance with the third paragraph of Article 267 TFEU, to submit a request for a preliminary ruling to the Court of Justice when it finds that the substance of the dispute involves a question which comes within the scope of the first paragraph of Article 267 TFEU, even if, in the same dispute, it may ask the constitutional court of the Member State concerned about the constitutionality of the national rules (see, by analogy, judgment of 15 January 2013, Križan and Others, C‑416/10, EU:C:2013:8, paragraph 72).
33


As a result, the fact that the Corte costituzionale (Constitutional Court) has given a ruling on the compatibility of the national legislation at issue in the main proceedings with the provisions of the Italian Constitution has no bearing on the obligation to refer questions concerning the interpretation or validity of EU law to the Court of Justice (see, to that effect, judgment of 20 December 2017, Global Starnet, C‑322/16, EU:C:2017:985, paragraph 25).
39


Lastly, in accordance with settled case-law, a request for a preliminary ruling from a national court must be rejected where it is quite obvious that the interpretation of Union law sought bears no relation to the facts or purpose of the main proceedings (judgment of 10 July 2014, Apple, C‑421/13, EU:C:2014:2070, paragraph 30, and order of 17 January 2019, Cipollone, C‑600/17, not published, EU:C:2019:29, paragraph 21).
43


In that respect, Article 6(4) of that regulation provides, in essence, the criteria for determining the cases in which those tasks are to be carried out by the ECB alone and those cases in which the national competent authorities are to assist the ECB in carrying out those tasks, by a decentralised implementation of some of those tasks in relation to less significant credit institutions, within the meaning of the first subparagraph of Article 6(4) of that regulation (see, to that effect, judgment of 8 May 2019, Landeskreditbank Baden-Württemberg v ECB, C‑450/17 P, EU:C:2019:372, paragraph 41).
52


In accordance with settled case-law, the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, assumes a degree of connection between an EU legal measure and the national measure in question, above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other (judgments of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 24; of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 34; and of 6 October 2016, Paoletti and Others, C‑218/15, EU:C:2016:748, paragraph 14).
53


In that respect, the Court has found that fundamental EU rights could not be applied in relation to national legislation because the provisions of EU law in the subject area concerned did not impose any specific obligation on Member States with regard to the situation at issue in the main proceedings (judgments of 6 March 2014, Siragusa, C‑206/13, EU:C:2014:126, paragraph 26, and of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 35).
63


In that regard, it is important that the referring court state, in particular, the precise reasons which led it to question the validity of certain EU law provisions and set out the grounds of invalidity which, consequently, appear to it capable of being upheld (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 48 and the case-law cited).
64


It follows from the foregoing, first, that in a reference for a preliminary ruling, the Court will examine the validity of an EU act or certain provisions thereof in the light of the grounds of invalidity set out in the order for reference. Second, if there is no mention of the precise reasons which led the referring court to question the validity of that act or of those provisions, the questions relating to the validity thereof will be inadmissible (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 50).
82


The protection afforded by that article covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition (judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraph 42; of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 25; and of 12 July 2018, Spika and Others, C‑540/16, EU:C:2018:565, paragraph 34).
83


According to settled case-law, the freedom to conduct a business is not absolute. It may be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest (judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraphs 45 and 46; of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 28; and of 26 October 2017, BB construct, C‑534/16, EU:C:2017:820, paragraph 36).
85


In that regard, it should be borne in mind that the right to property guaranteed by that provision is not absolute and that its exercise may be subject to restrictions justified by objectives of general interest pursued by the European Union that do not constitute, in relation to the aim pursued, a disproportionate and intolerable interference impairing the very substance of the right guaranteed (judgment of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraphs 69 and 70).
89


First, that ability does not lead to a deprivation of property and therefore does not constitute interference that undermines the very substance of the right to property. Second, even if it were concluded that that ability limited the freedom to conduct a business, it respects the essence of that freedom since it does not prevent the exercise of banking activities. In that regard, the Court has recognised that cooperative societies conform to particular operating principles, which clearly distinguish them from other economic operators (see, to that effect, judgment of 8 September 2011, Paint Graphos and Others, C‑78/08 to C‑80/08, EU:C:2011:550, paragraph 55).
92


In that regard, it should be borne in mind that, according to the Court’s case-law, the objectives of ensuring the stability of the banking and financial system and preventing a systemic risk are objectives of public interest pursued by the European Union (see, to that effect, judgments of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraphs 69, 88 and 91; of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraphs 71 and 74; and of 8 November 2016, Dowling and Others, C‑41/15, EU:C:2016:836, paragraphs 51 and 54).
93


Indeed, financial services play a central role in the economy of the European Union. Banks and credit institutions are an essential source of funding for businesses that are active in the various markets. In addition, banks are often interconnected and a number of them operate internationally. That is why the failure of one or more banks is liable to spread rapidly to other banks, either in the Member State concerned or in other Member States. That is liable, in turn, to produce negative spill-over effects in other sectors of the economy (judgments of 19 July 2016, Kotnik and Others, C‑526/14, EU:C:2016:570, paragraph 50, and of 20 September 2016, Ledra Advertising and Others v Commission and ECB, C‑8/15 P to C‑10/15 P, EU:C:2016:701, paragraph 72).
100


In that regard, it should be borne in mind that, according to settled case-law, in the absence, in the FEU Treaty, of a definition of the concept of ‘movement of capital’ within the meaning of Article 63(1) TFEU, the Court has previously recognised as having indicative value the nomenclature of capital movements set out in Annex I to Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the [EC Treaty (repealed by the Treaty of Amsterdam)] (OJ 1988 L 178, p. 5) (judgments of 27 January 2009, Persche, C‑318/07, EU:C:2009:33, paragraph 24; of 10 November 2011, Commission v Portugal, C‑212/09, EU:C:2011:717, paragraph 47; and of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 40).
101


Accordingly, the Court has consistently held that movements of capital within the meaning of Article 63(1) TFEU include in particular ‘direct’ investments, namely investments in the form of participation in an undertaking through the holding of shares which confers the possibility of effectively participating in the management and control of that undertaking, and ‘portfolio’ investments, namely investments in the form of the acquisition of shares on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking (judgments of 11 November 2010, Commission v Portugal, C‑543/08, EU:C:2010:669, paragraph 46; of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 40; and of 26 February 2019, X (Controlled companies established in third countries), C‑135/17, EU:C:2019:136, paragraph 26).
102


Concerning those two forms of investment, the Court has stated that national measures must be regarded as ‘restrictions’ within the meaning of Article 63(1) TFEU if they are liable to prevent or limit the acquisition of shares in the undertakings concerned or to deter investors from other Member States from investing in their capital (judgments of 21 October 2010, Idryma Typou, C‑81/09, EU:C:2010:622, paragraph 55; of 10 November 2011, Commission v Portugal, C‑212/09, EU:C:2011:717, paragraph 48; and of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 41).
105


According to settled case-law, national measures which restrict the free movement of capital may be justified by overriding reasons relating to the general interest, provided that the restrictions are appropriate for securing attainment of the objective they pursue and do not go beyond what is necessary to attain that objective (judgment of 10 November 2011, Commission v Portugal, C‑212/09, EU:C:2011:717, paragraph 81 and the case-law cited). Moreover, the Court has accepted that national legislation may constitute a justified restriction on a fundamental freedom when it is dictated by reasons of an economic nature in the pursuit of an objective in the public interest (judgment of 22 October 2013, Essent and Others, C‑105/12 to C‑107/12, EU:C:2013:677, paragraph 52 and the case-law cited).