Safe Interenvios, SA v Liberbank, SA and Others.
Date: 2016-03-10
76


Finally, so far as concerns Article 9 of Law 10/2010, which authorises standard due diligence measures to be applied in respect of financial institutions even if there is no suspicion or higher risk of money laundering or terrorist financing within the meaning of Articles 7(c) and 13 of the Money Laundering Directive, it is to be borne in mind that the Money Laundering Directive merely provides for a minimum level of harmonisation and that, even when Member States have properly transposed Articles 7, 11 and 13 of the directive into national law, Article 5 of the directive allows them to adopt or retain in force stricter provisions where those provisions seek to strengthen the fight against money laundering and terrorist financing (see, to this effect, judgment in Jyske Bank Gibraltar, C‑212/11, EU:C:2013:270, paragraph 61).
79


In providing that the Member States may adopt or retain in force stricter provisions in the field covered by the Money Laundering Directive to prevent money laundering and terrorist financing, Article 5 of that directive does not grant the Member States a power or obligation to legislate by virtue of EU law, but merely, unlike the provisions laid down in Chapter II of the directive, recognises the power which the Member States enjoy under national law to provide for such stricter provisions outside the framework of the regime established by the directive (see, by analogy, judgment in Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 44).
96


It must be pointed out that, in so doing, the Member State concerned must nevertheless exercise that power in compliance with EU law, in particular the fundamental freedoms guaranteed by the Treaties (see, by analogy, judgment in Jyske Bank Gibraltar, C‑212/11, EU:C:2013:270, paragraph 49).
98


It is settled case-law of the Court 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 (judgment in Jyske Bank Gibraltar, C‑212/11, EU:C:2013:270, paragraph 58 and the case-law cited). Furthermore, Article 56 TFEU precludes the application of any national rules which have the effect of making the provision of services, within the meaning of Article 57 TFEU, between Member States more difficult than the provision of services purely within one Member State (judgments in Cipolla and Others, C‑94/04 and C‑202/04, EU:C:2006:758, paragraph 57, and Commission v Belgium, C‑296/12, EU:C:2014:24, paragraph 29).
100


Nevertheless, according to the Court’s settled case-law, where national legislation falling within an area which has not been completely harmonised at EU 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 reflects an overriding reason in 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 that aim (see judgments in Commission v Austria, C‑168/04, EU:C:2006:595, paragraph 37, and Jyske Bank Gibraltar, C‑212/11, EU:C:2013:270, paragraph 60).
102


In that regard, first, it should be recalled that preventing and combating money laundering and terrorist financing constitute a legitimate aim capable of justifying a barrier to the freedom to provide services (judgment in Jyske Bank Gibraltar, C‑212/11, EU:C:2013:270, paragraphs 62 to 64 and 85 and the case-law cited).
103


The Court has already accepted that the aim of combatting the use of the financial system for money laundering or terrorist financing, which is inherent in the Money Laundering Directive, is to be balanced against the protection of other interests, including the freedom to provide services. Thus, in the judgment in Jyske Bank Gibraltar (C‑212/11, EU:C:2013:270, paragraphs 49, 59 and 60), the Court held, in essence, that restrictions on the freedom to provide services resulting from an obligation to provide information were permissible in so far as such an obligation seeks to strengthen, in compliance with EU law, the effectiveness of the fight against money laundering and terrorist financing.
109


Furthermore, whether national legislation is proportionate also depends on the degree to which the customer due diligence measures for which it provides intrude upon other rights and interests protected by EU law, such as the protection of personal data, provided for in Article 8 of the Charter, and the principle of free competition between entities operating in the same market. Where a Member State relies on overriding reasons in the general interest in order to justify rules which are liable to obstruct the exercise of the freedom to provide services, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights now guaranteed by the Charter. Thus, the national rules in question can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court (see judgments in ERT, C‑260/89, EU:C:1991:254, paragraph 43, and Pfleger and Others, C‑390/12, EU:C:2014:281, paragraph 35). The aims of that legislation must be weighed against those other legitimate interests.
114


As is clear from settled case-law reflected in Article 94 of the Rules of Procedure of the Court of Justice, in the context of the cooperation between the Court of Justice and the national courts established in Article 267 TFEU the need to provide an interpretation of EU law which will be of use to the national court makes it necessary for that court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based (see, to this effect, judgment in Azienda sanitaria locale n. 5 Spezzino and Others, C‑113/13, EU:C:2014:2440, paragraph 47). The Court is empowered to rule on the interpretation of EU provisions only on the basis of the facts which the national court puts before it (order in Argenta Spaarbank, C‑578/14, EU:C:2015:372, paragraph 14).
115


The referring court must also set out the precise reasons why it was unsure as to the interpretation of certain provisions of EU law and why it considered it necessary to refer questions to the Court for a preliminary ruling. The Court has already 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 provisions of EU law of which it requests an interpretation and regarding the link that it establishes between those provisions and the national legislation applicable to the dispute before it (orders in Equitalia Nord, C‑68/14, EU:C:2015:57, paragraph 14 and the case-law cited, and Argenta Spaarbank, C‑578/14, EU:C:2015:372, paragraph 15).
116


Indeed, the information provided in orders for reference serves not only to enable the Court to provide useful answers but also to give the governments of the Member States and other interested parties the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is the Court’s duty to ensure that that opportunity is safeguarded, given that, under that provision, only the orders for reference are notified to the interested parties (order in Argenta Spaarbank, C‑578/14, EU:C:2015:372, paragraph 16).
119


It is settled case-law that, under the procedure of cooperation established by Article 267 TFEU, it is not for the Court of Justice but for the national court to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see judgment in Accor, C‑310/09, EU:C:2011:581, paragraph 37 and the case-law cited).