61997J0366

European Court reports 1999 Page I-00855

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Keywords

Freedom to provide services - Credit institutions - Prohibition, in the case of persons or undertakings which are not credit institutions, on carrying on the business of taking deposits or other repayable funds from the public - Other repayable funds - Meaning - Financial instruments which are the subject of a contractual agreement to repay the funds paid - Covered (Council Directives 77/780 and 89/646, Art. 3)

Summary

The term `other repayable funds' in Article 3 of the Second Directive 89/646 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780, which lays down a prohibition, in the case of persons or undertakings which are not credit institutions, on carrying on the business of taking deposits or other repayable funds from the public, refers not only to financial instruments which possess the intrinsic characteristic of repayability, but also to those which, although not possessing that characteristic, are the subject of a contractual agreement to repay the funds paid. It is clear from Directives 77/780 and 89/646 that the protection of savings constitutes one of the objectives of the measures taken to coordinate credit institutions. According to the fourth recital in the preamble to the First Directive 77/780, those measures must apply to all credit institutions. The fifth recital adds that their scope should therefore be as broad as possible, covering all institutions whose business is to receive repayable funds from the public whether in the form of deposits or in other forms such as the continuing issue of bonds and other comparable securities.

Parties

In Case C-366/97, REFERENCE to the Court under Article 177 of the EC Treaty by the Tribunale Civile e Penale, Florence (Italy) for a preliminary ruling in the criminal proceedings before that court against Massimo Romanelli, Paolo Romanelli on the interpretation of Article 3 of the Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC (OJ 1989 L 386, p. 1), THE COURT (Sixth Chamber), composed of: P.J.G. Kapteyn (Rapporteur), President of the Chamber, G. Hirsch, J.L. Murray, H. Ragnemalm and R. Schintgen, Judges, Advocate General: N. Fennelly, Registrar: H. von Holstein, Deputy Registrar, after considering the written observations submitted on behalf of: - Messrs Massimo and Paolo Romanelli, by Giovanni Flora, of the Florence Bar, - the Belgian Government, by Jan Devadder, General Adviser in the Ministry of Foreign Affairs, External Trade and Development Cooperation, acting as Agent, - the Austrian Government, by Christine Stix-Hackl, Envoy in the Federal Ministry of Foreign Affairs, acting as Agent, - the Finnish Government, by Holger Rotkirch, Ambassador, Head of Legal Affairs in the Ministry of Foreign Affairs, and Tuula Pynnä, Legal Adviser in the same Ministry, acting as Agents, - the Commission of the European Communities, by Christina Tufvesson, Legal Adviser, and Laura Pignataro, of its Legal Service, acting as Agents, having regard to the Report for the Hearing, after hearing the oral observations of Messrs Massimo and Paolo Romanelli and the Commission at the hearing on 24 September 1998, after hearing the Opinion of the Advocate General at the sitting on 29 October 1998, gives the following Judgment

Grounds

1 By order of 8 October 1997, received at the Court on 24 October 1997, the Tribunale Civile e Penale (Civil and Criminal District Court), Florence, referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 3 of the Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC (OJ 1989 L 386, p. 1). 2 That question was raised in criminal proceedings brought against Messrs Massimo and Paolo Romanelli, in their capacity as legal representatives of Romanelli Finanzaria SpA, for the unlawful taking of savings from the public. 3 Article 3 of Directive 89/646 provides as follows: `The Member States shall prohibit persons or undertakings that are not credit institutions from carrying on the business of taking deposits or other repayable funds from the public...'. 4 Directive 89/646 was implemented in Italy by Legislative Decree No 385 of 1 September 1993 implementing Directive 89/646 and consolidating the legislation adopted in the field of banking and credit. Article 11(2) of the Decree prohibits undertakings other than banks from taking savings from the public, and that activity is defined in Article 11(1) as `the acquisition of funds accompanied by an obligation of reimbursement, in the form of deposits or otherwise'. Article 130 of Legislative Decree No 385 also makes the unlawful taking of savings from the public an offence. 5 In 1994 and 1995 Messrs Massimo and Paolo Romanelli issued trust securities consisting in the sale to third parties of an instrument representing an amount receivable and immediate repurchase thereof at a price which incorporated the agreed interest, and warrants representing an option to acquire debentures issued by Romanelli Finanzaria SpA. 6 The Tribunale Civile e Penale, Florence, states that `the trust securities and debenture warrants in question ... [were] not financial instruments repayable by their intrinsic nature; they [were] repayable only as a result of contractual provisions'. 7 According to the order for reference, the term `taking of savings' in Legislative Decree No 385 can be interpreted in two ways: either it refers only to those financial instruments which, by their intrinsic nature, embody an obligation of repayment, or it covers in addition those financial instruments in which the requirement of repayability derives from specific contractual provisions. 8 Considering that the interpretation to be chosen depended on the interpretation of Article 3 of Directive 89/646, the Tribunale Civile e Penale, Florence, decided to stay proceedings and refer the following question to the Court for a preliminary ruling: `Does the expression "repayable funds" contained in Directive 89/646/EEC of 15 December 1989 refer only to financial instruments which possess the intrinsic characteristic of repayability, or does that expression refer also to those financial instruments which, although not possessing that intrinsic characteristic, are the subject of a contractual agreement to repay the amount paid?' 9 According to the defendants in the main proceedings, Article 3 of Directive 89/646 refers only to the acquisition of funds which are intrinsically repayable, and not to operations involving financial instruments without that characteristic, even if, in this case, `restitution' is contractually agreed. Although Directive 89/646 and Council Directive 77/780/EEC of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions (OJ 1977 L 322, p. 30) seek to protect credit capital, such as certificates of deposit and bonds, they do not concern risk capital, such as company shares, which is not invested on the basis of a guarantee of repayment, but with the aim of making speculative gains. 10 The Belgian, Austrian and Finnish Governments and the Commission submit, in contrast, that one of the essential objectives of Directive 89/646, namely to protect savings, can only be attained if Article 3 of the directive is interpreted as meaning that the term `repayable funds' covers any transaction, however constructed, which includes an obligation of repayment. Given that financial institutions are always devising new instruments, any other interpretation of that provision could undermine the effectiveness of the prohibition in point, which consists in ensuring that only authorised persons may carry out the transactions in question with the public. 11 As the Court has already observed in Case C-222/95 Parodi v Banque H. Albert de Bary [1997] ECR I-3899, paragraph 22, the banking sector is a particularly sensitive area from the point of view of consumer protection. Consumers must be protected against the harm which they could suffer through banking transactions effected by credit institutions disregarding the requirements relating to their solvency or whose managers do not have the necessary professional qualifications or integrity. 12 Thus, as is clear from Directives 77/780 and 89/646, the protection of savings constitutes one of the objectives of the measures taken to coordinate credit institutions. 13 According to the fourth recital of Directive 77/780, those measures must apply to all credit institutions. The fifth recital adds that their scope should therefore be as broad as possible, covering all institutions whose business is to receive repayable funds from the public whether in the form of deposits or in other forms such as the continuing issue of bonds and other comparable securities. 14 Having regard to those considerations, the first indent of Article 1 of Directive 77/780 defines credit institution as `an undertaking whose business is to receive deposits or other repayable funds from the public and to grant credits for its own account'. Directive 89/646 which, according to Article 2(1) thereof, is applicable to all credit institutions, also refers to that definition. 15 Accordingly, the prohibition, in the case of persons or undertakings that are not credit institutions, on carrying on the business of taking deposits or other repayable funds from the public, which is laid down in Article 3 of Directive 89/646, must be interpreted in such a way as to apply to financial instruments in which the requirement of repayability derives from a contractual provision. 16 As the Advocate General observed in paragraph 12 of his Opinion, a narrower interpretation, as contended for by the defendants in the main proceedings, would undermine the objective of protecting consumers against the harm which they could suffer through financial transactions. 17 The answer to the question referred must therefore be that the term `other repayable funds' in Article 3 of the directive refers not only to financial instruments which possess the intrinsic characteristic of repayability, but also to those which, although not possessing that characteristic, are the subject of a contractual agreement to repay the funds paid.

Decision on costs

Costs 18 The costs incurred by the Belgian, Austrian and Finnish Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds, THE COURT (Sixth Chamber), in answer to the question referred to it by the Tribunale Civile e Penale, Florence, by order of 8 October 1997, hereby rules: The term `other repayable funds' in Article 3 of the Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC refers not only to financial instruments which possess the intrinsic characteristic of repayability, but also to those which, although not possessing that characteristic, are the subject of a contractual agreement to repay the funds paid.