Nova Kreditna Banka Maribor d.d. v Republika Slovenija.
Date: 2018-11-14
28


As the Advocate General notes in point 32 of his Opinion, the conditions set out in that provision are cumulative, in such a way that a body cannot be categorised as a body governed by public law, within the meaning of that provision, where one of those conditions is not satisfied. Furthermore, Recital 10 of the PSI Directive states that that concept of ‘body governed by public law’ is taken from the public procurement directives and does not cover public undertakings. It is therefore not sufficient that an undertaking be established by the State or by another body governed by public law, or that it be financed by means resulting from the activities of such bodies for that undertaking to be itself considered a ‘body governed by public law’. It must also have been established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character (see, by analogy, with regard to the public procurement directives, judgment of 5 October 2017, LitSpecMet, C‑567/15, EU:C:2017:736, paragraphs 34 and 36 and the case-law cited).
41


Furthermore, according to the information from the referring court, the dispute in the main proceedings concerns a situation in which all the elements are confined to a single Member State, a situation to which the fundamental freedoms guaranteed by the TFEU do not apply (see, to that effect, judgments of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 47 and the case-law cited, and of 20 September 2018, Fremoluc, C‑343/17, EU:C:2018:754, paragraph 18).
42


That finding is not called into question by the fact, mentioned in the order for reference, that NKBM owns a subsidiary in Austria which was acquired by an undertaking established in another Member State. It is not apparent from that order that the nature and scope of the information which is subject to the request for access at issue in the main proceedings has any connection with the Austrian subsidiary of NKBM or with the undertaking which acquired that bank. Moreover, as the referring court points out, that acquisition was completed only subsequently to the circumstances which gave rise to the dispute in the main proceedings.
43


So far as concerns the possible deterrent effect that the access to the data of banks under the dominant influence of a public law entity, granted by the ZDIJZ, might have for service providers or investors from other Member States, it suffices to note that although the request for a preliminary ruling raises questions as to such an effect of that national legislation with regard to ‘some’ of those service providers and ‘some’ potential investors, it does not, however, contain any concrete evidence allowing a finding that one of those situations might arise in the context of the dispute in the main proceedings.
44


According to the case-law of the Court, such a request must clearly set out specific factors, that is, not hypothetical considerations but specific evidence, such as complaints or applications brought by operators situated in other Member States or involving nationals of those Member States, on the basis of which it may be positively established that nationals of other Member States are interested in making use of those fundamental freedoms in the situation at issue in the main proceedings (see, to that effect, judgments of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraphs 54 and 55, and of 20 September 2018, Fremoluc, C‑343/17, EU:C:2018:754, paragraphs 28 and 29).