OPINION OF ADVOCATE GENERAL

delivered on 30 May 2013 (1)

Case C‑85/12

Société Landsbanki Islands HF

Kepler Capital Markets SAv

(Request for a preliminary ruling from the Cour de cassation (France))

‛Freedom of establishment — Credit institutions — Directive 2001/24/EC — Conditions for the adoption of measures for the reorganisation and winding-up of credit institutions — Authorities empowered to adopt such measures — Special law — Equal treatment — Judicial protection — Lex fori — Lex concursus’

1.In the context of the collapse of the financial system occurring in Iceland as part of the international financial crisis unleashed in 2008, the Icelandic Parliament adopted a series of measures to reorganise various financial institutions established in that country, one of which has sought, on the basis of Directive 2001/24, to rely upon those measures against two attachment orders granted in France by the courts of that Member State. The question raised by the Cour de cassation (Court of Cassation) is, in essence, whether those reorganisation measures, although adopted by a legislative body, none the less fall within the scope of that directive, the purpose of which is to ensure the mutual recognition of reorganisation measures and winding-up proceedings adopted by administrative and judicial authorities. (2)

2.This request raises an issue typical of the difficulties that may on occasion result from the use by European Union (‘EU’) law of certain key concepts from national legal systems. As I shall go on to explain, it is important in cases of this kind to look beyond the forms and names of such concepts and to focus instead on their content and, in particular, on the purposes they serve within EU law, on the one hand, and within the legal systems of the Member States, on the other. That notion of placing concepts of national law within the context of the European Union must also form the basis for addressing the difficulties posed in this case by the interpretation of a directive which, like Directive 2001/24, could not have made provision for a financial crisis of the nature and scale of that whose effects we are still suffering today. Admittedly, one question underlying this situation is whether national emergency legislation such as that at issue here, together with the decisions adopted under it, must fall within the scope of Directive 2001/24. That, however, is not the question that the Court has been asked to answer by way of this request for a preliminary ruling.

3.Accordingly, in order to keep the question within the terms in which it was referred, I shall propose what might be called a ‘functional’ interpretation of the concepts of ‘administrative authority’ and ‘judicial authority’ within the meaning of Directive 2001/24 to the effect that, in certain circumstances, references to those authorities may also include ‘the legislative authority’. In other words, recourse to the national legislature to adopt the measures provided for in the Directive does not have the consequence of excluding those measures from the scope of that directive.

I – Legislative framework

A – EU law

4.Directive 2001/24 lays down the rules governing the mutual recognition of measures and proceedings for the reorganisation and winding-up of credit institutions. Some of the recitals in the preamble to that directive are relevant to this case:

(6)‘(6) The administrative or judicial authorities of the home Member State must have sole power to decide upon and to implement the reorganisation measures provided for in the law and practices in force in that Member State. Owing to the difficulty of harmonising Member States’ laws and practices, it is necessary to establish mutual recognition by the Member States of the measures taken by each of them to restore to viability the credit institutions which it has authorised.

(7)It is essential to guarantee that the reorganisation measures adopted by the administrative or judicial authorities of the home Member State and the measures adopted by persons or bodies appointed by those authorities to administer those reorganisation measures, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims and any other measure which could affect third parties’ existing rights, are effective in all Member States.

…

(12)The principle of equal treatment between creditors, as regards the opportunities open to them to take action, requires the administrative or judicial authorities of the home Member State to adopt such measures as are necessary for the creditors in the host Member State to be able to exercise their rights to take action within the time limit laid down.

…

(16)Equal treatment of creditors requires that the credit institution is wound up according to the principles of unity and universality, which require the administrative or judicial authorities of the home Member State to have sole jurisdiction and their decisions to be recognised and to be capable of producing in all the other Member States, without any formality, the effects ascribed to them by the law of the home Member State, except where this Directive provides otherwise.

…

(20)Provision of information to known creditors on an individual basis is as essential as publication to enable them, where necessary, to lodge their claims or submit observations relating to their claims within the prescribed time limits. This should take place without discrimination against creditors domiciled in a Member State other than the home Member State, based on their place of residence or the nature of their claims. Creditors must be kept regularly informed in an appropriate manner throughout winding-up proceedings.

…

(23)Although it is important to follow the principle that the law of the home Member State determines all the effects of reorganisation measures or winding-up proceedings, both procedural and substantive, it is also necessary to bear in mind that those effects may conflict with the rules normally applicable in the context of the economic and financial activity of the credit institution in question and its branches in other Member States. In some cases reference to the law of another Member State represents an unavoidable qualification of the principle that the law of the home Member State is to apply.

…

(30)The effects of reorganisation measures or winding-up proceedings on a lawsuit pending are governed by the law of the Member State in which the lawsuit is pending, by way of exception to the application of the lex concursus. The effects of those measures and procedures on individual enforcement actions arising from such lawsuits are governed by the legislation of the home Member State, in accordance with the general rule established by this Directive.’

5.For the purposes of these proceedings, Article 2 of Directive 2001/24 lays down certain definitions:

‘…

“administrative or judicial authorities” shall mean such administrative or judicial authorities of the Member States as are competent for the purposes of reorganisation measures or winding-up proceedings;

“reorganisation measures” shall mean measures which are intended to preserve or restore the financial situation of a credit institution and which could affect third parties’ pre-existing rights, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims;

…

“winding-up proceedings” shall mean collective proceedings opened and monitored by the administrative and judicial authorities of a Member State with the aim of realising assets under the supervision of those authorities, including where the proceedings are terminated by a composition or other, similar measure;

…’

6.Article 3 of Directive 2001/24, entitled ‘Adoption of reorganisation measures — applicable law’, provides as follows:

‘1. The administrative or judicial authorities of the home Member State shall alone be empowered to decide on the implementation of one or more reorganisation measures in a credit institution, including branches established in other Member States.

They shall be fully effective in accordance with the legislation of that Member State throughout the Community without any further formalities, including as against third parties in other Member States, even where the rules of the host Member State applicable to them do not provide for such measures or make their implementation subject to conditions which are not fulfilled.

The reorganisation measures shall be effective throughout the Community once they become effective in the Member State where they have been taken.’

7.Article 9(1) of the Directive, entitled ‘Opening of winding-up proceedings — Information to be communicated to other competent authorities’, provides as follows:

‘The administrative or judicial authorities of the home Member State which are responsible for winding up shall alone be empowered to decide on the opening of winding-up proceedings concerning a credit institution, including branches established in other Member States.

A decision to open winding-up proceedings taken by the administrative or judicial authority of the home Member State shall be recognised, without further formality, within the territory of all other Member States and shall be effective there when the decision is effective in the Member State in which the proceedings are opened.’

8.Under the title ‘Law applicable’, Article 10 of Directive 2001/24 provides as follows:

‘1. A credit institution shall be wound up in accordance with the laws, regulations and procedures applicable in its home Member State in so far as this Directive does not provide otherwise.

…

(e)the effects of winding-up proceedings on proceedings brought by individual creditors, with the exception of lawsuits pending, as provided for in Article 32;

…

(l)the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors.’

9.Article 32 of the Directive provides that ‘[t]he effects of reorganisation measures or winding-up proceedings on a pending lawsuit concerning an asset or a right of which the credit institution has been divested shall be governed solely by the law of the Member State in which the lawsuit is pending’.

10.Under the provisions contained in Article 6(1) and Articles 7, 13 and 14 of Directive 2001/24, decisions ordering the adoption of a reorganisation measure or the opening of winding-up proceedings must be published in the Official Journal of the European Union and must be notified to known creditors of the institution concerned who are resident or have their head office in other Member States.

B – Icelandic law

11.The general rules on bankruptcies are laid down in Law No 21/91 of 26 March 1991, Article 138 of which provides that, in the case of a judicial declaration of bankruptcy, any attachment order on the bankrupt’s assets is to be set aside, on condition that the assets in question are added to the assets in the bankruptcy estate. The same rule applies in the case of assets pledged as security within the six months preceding the date on which bankruptcy was declared, and also in the case of any attachment orders and enforcement measures adopted, upon application by a member of the bankrupt’s family, during the 6 or 24 months preceding the declaration of bankruptcy, unless the family member can prove to the court that, despite the measure in question, the bankrupt was solvent on that date.

12.Directive 2001/24 was transposed into the national legal order by Law No 161/2002 of 20 December 2002 on financial undertakings.

13.In what appears to have been the first legislative measure adopted after the banking and financial crisis erupted in Iceland, Law No 125/2008 of 6 October 2008 on Treasury disbursements due to unusual circumstances empowered the Icelandic Financial Supervisory Authority (‘the FME’) to intervene in the activities of financial institutions by taking measures such as assuming the powers of the shareholders’ general meeting, dismissing the board of directors and taking over the institution’s operations or appointing a provisional management committee.

14.A month later, Law No 129/2008 of 13 November 2008 amending Article 98 of Law No 161/2002 prohibited the bringing of legal proceedings against financial institutions subject to a ‘moratorium’ and suspended lawsuits pending, unless the law provided otherwise or a criminal offence had been committed.

15.Just a few months later, Law No 44/2009 of 15 April 2009, specifically cited in the first question raised by the referring court, introduced a series of transitional provisions under which the provisions of Law No 161/2002 concerning the winding-up of financial institutions were to be applied to those institutions which had been the subject of a ‘moratorium’ on the date on which Law No 44/2009 entered into force. According to Law No 44/2009, that provision was to be applied ‘as if the winding-up of that institution had been ordered by a court on the date on which the Law entered into force’.

16.At the same time, Law No 44/2009 repealed the prohibition introduced by Law No 129/2008.

17.Section II.2 of those transitional provisions stated that, on the expiry of the ‘moratorium’, those institutions that had benefited from it would automatically be regarded as being the subject of winding-up proceedings, without any need for a specific judicial decision to that effect.

18.Finally, in so far as this is relevant to the present case, Law No 161/2002 was further amended by Law No 132/2010 of 16 November 2010 to the effect that winding-up proceedings would thereafter no longer be opened automatically after the ‘moratorium’, but only if the provisional management committee and the winding-up board made a joint application to that effect to the judicial authority before the ‘moratorium’ expired.

II – Facts

19.Landsbanki Islands HF (‘Landsbanki’) is an Icelandic credit institution against which two attachment orders were granted in France on 10 November 2008 upon application by Mr Giraux, a creditor resident in that Member State.

20.Landsbanki challenged those attachment orders before the French courts, pleading the reorganisation and winding-up measures previously adopted by the Icelandic authorities. (3)

21.Thus, Landsbanki first of all argued before the Tribunal de grande instance de Paris (Regional Court, Paris) that the measures adopted in Iceland could be relied upon against its French creditor and that, in accordance with Icelandic law (Law No 44/2009 and Law No 21/1991), all the enforcement measures taken since 15 May 2008 were retroactively void.

22.The Tribunal de grande instance dismissed Landsbanki’s claim by judgment of 25 June 2009. The Tribunal held that the reorganisation and winding-up measures resulting from Icelandic Law No 44/2009 did not fall within the scope of Directive 2001/24 and were therefore not applicable in France. Consequently, the attachment orders granted upon application by Mr Giraux could not be lifted.

23.The judgment of the Tribunal de grande instance was confirmed by the Cour d’appel de Paris (Court of Appeal, Paris) on 4 November 2010. That court took the view, on the one hand, that the application of the Icelandic legislation did not have the effect of retroactively rendering the attachment orders void as Landsbanki had claimed, and, on the other hand, that, even assuming that it did have that effect, the legislative provisions giving rise to it did not constitute reorganisation or winding-up measures adopted by the ‘administrative or judicial authorities’ within the meaning of Directive 2001/24.

24.The Cour d’appel pointed out that the Icelandic provision barring legal action against credit institutions subject to a moratorium (Law No 161/2002) had been repealed on 15 April 2009 by Law No 44/2009.

25.On appeal, the Cour de cassation made the present reference for a preliminary ruling.

III – Questions referred

The questions referred were worded as follows:

1.Must Articles 3 and 9 of Directive 2001/24 on the reorganisation and winding-up of credit institutions be interpreted as meaning that reorganisation or winding-up measures in respect of a financial establishment, such as those under Icelandic Law No 44/2009 of 15 April 2009, are to be regarded as measures adopted by an administrative or judicial authority for the purposes of those articles?

2.Must Article 32 of Directive 2001/24 be interpreted as precluding a national provision, such as Article 98 of the Icelandic Law of 20 December 2002 [Law No 161/2002], which prohibited or suspended any legal action against a financial establishment as from the entry into force of a moratorium, from having effect in regard to interim protective measures adopted in another Member State before the declaration of the moratorium?

27.The Cour de cassation points out that, in accordance with Directive 2001/24, the administrative or judicial authorities of the home Member State are alone empowered to decide that reorganisation or winding-up measures are to be applied to a credit institution, including branches established in other Member States.

IV – Procedure before the Court of Justice

28.The reference for a preliminary ruling was received at the Court Registry on 20 February 2012.

29.Written observations were submitted by the applicants in the main proceedings, the EFTA Surveillance Authority (‘EFTA’), the French, Icelandic and Portuguese Governments and the Commission.

30.At the hearing, held on 7 March 2013, representatives for EFTA, the German Government and the Commission presented oral argument.

V – Arguments

A – The first question

31.Landsbanki submits that the winding-up procedure specifically provided for in the transitional provisions of Law No 44/2009 is a legal effect linked by that law to the judicial decision granting a moratorium, in this case the decision of the Reykjavik District Court of 5 December 2008. The view must therefore be taken that the reorganisation and winding-up measures imposed in Iceland were adopted by the competent administrative and judicial authorities within the meaning of Directive 2001/24 and should therefore be recognised in France. Any other interpretation would be contrary to the requirement of ensuring the protection and equal treatment of creditors. It further contends that the decisive factor must be that measures taken by the Icelandic legislature are not functionally different from an administrative or judicial act, for they are concerned with individual situations and interests and, moreover, like administrative and judicial acts, are actionable. The French Government agrees with the latter two observations.

32.Mr Giraux contends that reorganisation or winding-up measures may be adopted only by administrative or judicial authorities, for the fact that a legislative provision is not actionable means that administrative and judicial decisions alone are capable of assuring creditors that the measures will be adopted in the light of the financial situation specific to each case and that they are actionable. Mr Giraux further points out that the Directive very clearly distinguishes reorganisation measures from winding-up proceedings, which are both subject to their own rules geared towards the purposes that they each serve. Consequently, they both require an independent administrative or judicial decision, the adoption of a reorganisation measure not being capable, in accordance with Directive 2001/24, of producing the same effects as winding-up proceedings.

33.The French, Icelandic and Portuguese Governments argue that Articles 2, 3 and 9 of the Directive must be considered to be applicable to the measures resulting from Law No 44/2009. This, in their opinion, is the only way of attaining the objective pursued by the Directive, which is precisely to ensure the mutual and automatic recognition of reorganisation and winding-up measures adopted by a Member State.

34.The French Government makes the point that it would be contradictory to refuse to recognise measures resulting from Law No 44/2009, while on the other hand agreeing to recognise administrative or judicial decisions applying the self-same measures. With regard to Article 3(1) and Article 9(1) of the Directive, the French Government submits that their purpose is not so much to require measures to be adopted by the administrative or judicial authorities as to ensure that such measures may be taken only by the authorities of the home Member State, to the exclusion of other Member States. The Portuguese Government considers that the rules of law determining all the effects produced by the application of reorganisation measures should take the form of administrative or judicial measures.

35.The Commission maintains that, the national rules on insolvency not having been harmonised, Directive 2001/24 confines itself to establishing the mutual recognition of measures taken to restore financial institutions to viability. That being so, it is for the Member State, having due regard for the minimum criteria laid down by the Directive, to designate the authorities competent to take such measures. That freedom must not be limited on account of the legal and constitutional culture of every Member State or the meaning that the concepts of administrative and legislative act may have in every one of them.

36.In the Commission’s view, the decisive factor is not whether the measure in question was adopted by a parliament or a court; what matters, in accordance with the Directive, is that the measures should be justified by the financial situation of a particular institution, which means that general measures applicable impersonally and without distinction to the financial sector as a whole fall outside the scope of the Directive. In its opinion, a distinction must be drawn in this case between the provisions of Law No 161/2002 in the version applicable to the facts of the case, which, being of a general and impersonal nature, cannot fall within the scope of Directive 2001/24, and the decisions taken by the FME and the Reykjavik District Court in exercise of the powers conferred upon them by the aforementioned Law No 161/2002. In the Commission’s opinion, the latter decisions, adopted under that law, are clearly attributable to an administrative or judicial authority within the meaning of Directive 2001/24.

37.EFTA submits that, in this case, all the measures were adopted by the FME or by the competent judicial authority. In its view, the system for the ‘automatic’ opening of winding-up proceedings, which was provided for in Law No 44/2009 and later abolished by Law No 132/2010, was not applied.

B – The second question

38.Landsbanki maintains that Article 32 of Directive 2001/24 does not preclude the application of Article 98 of Law No 161/2002, which formed the legal basis for the adoption of the moratorium which, in its view, renders the attachment orders granted in France ineffective. In Landsbanki’s submission, the expression ‘lawsuit pending’ used in Article 32 refers only to legal proceedings concerning the substance of a case. Furthermore, it contends, recital 30 in the preamble to the Directive recognises that it must be the law of the home Member State that determines the effects of measures such as a moratorium ‘on individual enforcement actions’ arising from lawsuits pending, there being no doubt that an attachment order constitutes an enforcement action.

39.Mr Giraux considers that the question is inadmissible because Article 98 of Law No 161/2002 is not applicable to the matter at issue. In his opinion, if that provision prevents only the bringing of actions against an institution subject to a moratorium, it is inoperative in relation to an attachment order predating that moratorium. Furthermore, he submits that that provision has been declared unconstitutional and replaced by Law No 44/2009.

40.The French and Icelandic Governments, the Commission and EFTA contend that a distinction must be drawn between ‘lawsuits pending’, which are governed by the law of the State in which they were brought (lex fori), and ‘individual actions’, which are governed by the law of the home State (lex concursus). This follows from an interpretation of Article 32 of Directive 2001/24 in the light of recital 30 in its preamble and Article 102(e) of that same directive. In their submission, Article 32 covers only proceedings relating to the substance of a case and not ancillary actions for enforcement. Taking into account the objectives pursued by the Directive (in particular, universality and the equal treatment of creditors), attachment orders are individual actions subject to the law of the home State.

41.The Commission argues in particular that enforcement measures, including attachment orders the effects of which extend over time, must be subject to the law of the home State as from the date on which reorganisation and winding-up measures are adopted, even if the enforcement measures were adopted before that date. Reorganisation and winding-up measures have retroactive effect on actions for enforcement where the law applicable in the home State so provides.

42.More generally, the Commission states that Directive 2001/24 does not have the effect of automatically prohibiting or suspending all actions brought in other Member States in respect of an institution as soon as that institution becomes the subject of reorganisation or winding-up measures in another Member State. It is true that only the latter may adopt reorganisation or winding-up measures in respect of an institution established within its territory (which measures will be efficacious only if they are effective in all Member States). However, there is nothing in the Directive to prevent the remaining Member States from adopting measures or opening proceedings of another kind, such as, for example, actions to establish contractual liability or criminal proceedings.

VI – Assessment

43.The Cour de cassation has raised two questions varying considerably in their complexity. This is apparent from the fact that the debate prompted by this case between those participating in the present proceedings has focused on the first question, there having been a virtual consensus on the answer to be given to the second.

44.Without prejudice to the fact that I shall also be proposing to the Court of Justice the answer that, in my view, should be given to the second question raised by the referring court, I shall be focusing largely on the first question. In so doing, moreover, I shall endeavour to confine myself strictly to the subject-matter of the question.

A – The first question

45.The first question can be expressed very simply. May a parliament, by way of exception, use a legislative procedure to adopt measures invariably entrusted by Directive 2001/24 to the national ‘administrative or judicial authorities’ of the home Member State? The Cour de cassation has not specified the legislative measures with which its question is concerned but refers generically to ‘reorganisation or winding-up measures in regard to a financial establishment … such as those under Icelandic Law No 44/2009 of 15 April 2009’.

46.Notwithstanding the foregoing, it may be inferred from both the order for reference and the exchange of argument and evidence between the parties that the provisions of Law No 44/2009 that are significant for the purposes of this case are, in essence, the transitional provisions under which institutions that were the subject of a moratorium on the date on which Law No 44/2009 entered into force — as, in this instance, Landsbanki had been since 5 December 2008 — would automatically be regarded as being the subject of winding-up proceedings without any need for a judicial decision to that effect.

47.Landsbanki takes the view that the consequence of that particular item of legislation is that the present case is subject to the Icelandic provisions governing winding-up proceedings and, in particular, that the attachment of its assets must be lifted. However, whether or not that should indeed be the consequence of that measure is a question on which it is not appropriate to give a ruling in these proceedings.

48.It is apparent from the order for reference that it is the interpretation of the Icelandic law relevant to the main proceedings that is in dispute between the parties and it is therefore for the Cour de cassation to give a ruling in those proceedings on whether the Cour d’appel was right to find that it had not been shown that Article 138 of Law No 21/91 governing the general rules on bankruptcies is applicable to Landbanksi in such a way as to mean that the attachment orders granted against its assets must be lifted.

49.None the less, the decisive argument for the purposes of the judgment given by the Cour d’appel was not the lack of evidence as to the applicability of the Icelandic rules relied on by Landsbanki — which question, as I have said, remains open — but the fact that at all events those rules were not contained in an administrative or judicial decision within the meaning of the Directive, but in a legislative provision which, as such, fell outside the scope of Directive 2001/24, in which case the issue as to whether Law No 21/91 is applicable to this case would be relevant.

50.This is therefore a preliminary question that will determine whether or not the referring court must address the substance of the issue of determining the Icelandic law relevant and applicable to the main proceedings. The reason for this, of course, is that a finding by the Court of Justice to the effect that the measures contained in Law No 44/2009 cannot be regarded as equivalent to the administrative or judicial decisions referred to in Directive 2001/24 would remove the precondition necessary to enable Landsbanki to furnish a basis in law for its claim before the French courts (namely, that the effects of such measures should be recognised in France), since that Member State would be under an obligation to recognise those effects only if the measures in question fell within the scope of that directive.

51.I should, finally, make one further clarification to the effect that, in my view, the fact that, by judgment of 22 November 2010, the Reykjavik District Court ordered that Landsbanki be made the subject of winding-up proceedings is also immaterial in these proceedings. As a judicial decision, that judgment would obviously fall within the scope of Directive 2001/24 and would therefore have rendered the question concerning the automatic winding-up provided for in Law No 44/2009 hypothetical.

52.The fact is, however, that Landsbanki had already been the subject of winding-up proceedings since a winding-up board was appointed by the court on 29 April 2009, that is to say, a few days after Law No 44/2009 entered into force. As soon as that board was appointed, the automatic initiation of winding-up proceedings provided for in Law No 44/2009 ceased to have any effect on Landsbanki. As a result, that institution was entitled to rely on the Icelandic bankruptcy legislation before the French courts with a view to having the attachment orders on its assets lifted. In actual fact, the decision of the Reykjavik District Court of 22 November 2010 does not technically open proceedings for the winding-up of Landbanksi but rather, as stated in paragraph 5 of that decision, orders the continuation of the proceedings already initiated under Law No 44/2009. That decision was necessary inasmuch as the automatic initiation of winding-up proceedings had just been abolished by Law 132/10, which entered into force five days before the date of that decision by the District Court.

53.Finally and in summary, I shall now answer the questions specifically concerned with Law No 44/2009.

54.In what follows, I shall divide my submissions into three sections setting out the proposition I am putting forward and the two conditions that, in my view, are capable of justifying the inclusion of certain legislative measures within the scope of Directive 2001/24.

(a) The ‘reorganisation measures’ do not fall outside the scope of Directive 2001/24 solely and exclusively because they were adopted by the national legislature

55.Turning now without further ado to the answer to the first question referred by the Cour de cassation, I would point out first of all that there seems little doubt that, on the basis of the actual wording of Articles 3(1) and 9(1) of Directive 2001/24, there would be no place in those provisions for ‘legislative authorities’, for they refer expressly only to ‘administrative or judicial authorities’ and to those authorities as ‘alone being empowered’ to take such measures. (4) However, such an interpretation would, in my view, be contrary not only to the spirit and purpose of Directive 2001/24 but above all to the very scheme of that directive. (5)

56.A reading of the content of those provisions taken as a whole makes it apparent that the decisive criterion in them, more important than the identity of the specific authorities empowered to take the reorganisation measures referred to in Directive 2001/24, is that they should be authorities belonging to the ‘home’ Member State within the meaning of the Directive. Also decisive in those provisions, in my view, is the nature of the measures in question, as well as the fact that they are central to the scheme of the Directive.

57.Everything in Directive 2001/24 is directed towards ‘establishing mutual recognition by the Member States of the measures taken by each of them to restore to viability the credit institutions which it has authorised’, (6) thereby ensuring that ‘they are effective in all Member States’. (7)

58.On the other hand, in accordance with Article 2 of the Directive, ‘reorganisation measures’ are measures that ‘are intended to preserve or restore the financial situation of a credit institution’. (8) They are therefore measures of a specific, customised nature, aimed at individual credit institutions and not, therefore, meant to apply to all such institutions or to determine the rules of law governing the financial sector. This is confirmed by Articles 3 and 9 of the Directive, which always refer to measures adopted in respect of ‘a credit institution’.

59.It is true that the fact that the reorganisation measures are individual or customised to their addressees would naturally suggest that it is the administrative or judicial authorities that are competent to take such measures. Notwithstanding all the potential differences between the constitutional structures of the Member States, it is a principle common to all national traditions that a law is, by definition, a rule of general and abstract nature, as compared with the individual and concrete nature of both administrative and judicial decisions in their capacity as acts specifically intended to implement the general provisions of such a law. In this regard, a mere reading of the Directive as a whole makes abundantly clear the importance assigned to the principle of legality.

60.The foregoing notwithstanding, a comparative examination of the national constitutional systems shows that some of them occasionally use ‘special laws’ (ius singulare — literally, ‘singular law’), that is to say, laws that are individual or specific, either because of their content or because of the persons to whom they are addressed. (9) In so far as this type of law is permissible in the legal systems of the Member States, (10) there is in principle no scope for objection, from the point of view of EU law, to their suitability as legislative instruments for the exercise of public authority at national level. None the less, as we shall see, in the specific case of Directive 2001/24, certain conditions do have to be imposed.

61.At all events, it is my view that the repeated references in the Directive to the administrative or judicial authorities are essentially attributable to the indisputable fact that these are usually the authorities called upon to adopt the reorganisation measures whose recognition by the Member States the Directive is intended to secure. I am also of the view, however, that the use of that wording should not be taken as the expression of an express intention to exclude in any circumstances a Member State’s ‘legislative authority’ from the list of national authorities called upon to adopt measures the universal recognition of which the Directive is intended to secure.

62.By way of interim conclusion, I submit that, subject to my further comments below, the measures adopted by the Icelandic legislature in the context with which we are concerned here, in particular those contained in Law No 44/2009, do not fall outside the scope of Directive 2001/24 on the sole ground that they were adopted by means of legislative provisions.

(b) However, measures adopted by the legislature must actually have been adopted by it if they are to be eligible for inclusion within the scope of Directive 2001/24

63.First of all, it is my view that the legislative authority may be regarded as excluded from the scope of Directive 2001/24 only in so far as that authority adopts general and abstract measures, that is to say, provisions that do not satisfy the definition of ‘reorganisation measures’ given in Directive 2001/24. If, on the other hand, the legislative authority may, in accordance with national law, also adopt measures that, being individual and specific, do satisfy the definition given in Directive 2001/24, there is in my opinion no reason why the latter may not be deemed equivalent to measures adopted by the administrative or judicial authorities or, therefore, why they should not be eligible for the recognition guaranteed by the Directive throughout the European Union for reorganisation measures adopted by a Member State.

64.In principle, Law No 44/2009 has every semblance of a law in the formal and generally accepted sense of that term. As one would expect, it amends a law of the same nature, such as Law No 161/2002 on financial undertakings. None the less, by virtue of the transitional provisions it contains, Law No 44/2009 is addressed specifically to financial undertakings that have been granted a moratorium. At the time it came into force, April 2009, Landsbanki was in that position following a judicial decision given on 5 December 2008. According to the observations submitted by the Icelandic Government, (11) four more financial undertakings were in the same position.

65.In the context of the financial crisis that began in Iceland in 2008, the special circumstances affecting Landsbanki could not have been unknown to the Icelandic legislature. It was precisely the situation in which that financial undertaking and others like it found themselves that prompted all of the legislative measures adopted as a matter of urgency from 6 October 2008, the date of entry into force of Law No 125/2008, which authorised the national supervisory authority to take specific measures. (12) What we have here, then, is a set of legislative measures which, because of their very content, are prima facie confined, as far as their application is concerned, to a clearly defined and easily identifiable group of individual addressees.

66.On the other hand, we may not ignore the fact that it could have been essential for the measures needed to reorganise Landsbanki to be adopted by means of legislative provisions with the force of law and therefore falling outside the remit of the administrative and judicial authorities. It is in this connection, as I said at the beginning of this Opinion, that account must be taken of the seriousness of the crisis that the Icelandic authorities were attempting to deal with. In view of the scale and extent of the crisis, the national authorities took the view that the only way in which the effects of the financial crisis could be combated was by adopting measures that would amend the legislative framework by introducing exceptions to some of the general rules governing the activities of financial undertakings. For the purposes of this case, those measures appear to have been adopted in order to address specific circumstances and on a transitional basis, and were not therefore intended to be generally applicable or permanent, as the later successive reforms in the sector at issue show.

67.Consequently, in a situation in which, because of the legislative status of the provisions the application of which is to be affected, the reorganisation measures needed to deal with the situation of a financial undertaking can only be provisions having the same legislative status, it would make no sense to exclude measures adopted by a parliament from the scope of Directive 2001/24 on the sole ground that it is not an administrative or judicial authority, in other words, that those measures were not adopted by an authority that was not empowered to adopt them. On the contrary, from this particular point of view, the only important factor should, in my opinion, be whether the measures in question are appropriate for dealing with the particular and specific situation of a given institution. After all, whether the measure is individual and specific is the decisive — although, as we shall see, not the only — factor when it comes to determining whether Directive 2001/24 is applicable. (13)

68.In passing, I feel it appropriate to point out in this regard that the question raised cannot be ‘defused’ by the Commission’s argument to the effect that, because the contested legislative provisions were applied to the particular case of Landsbanki by means of specific administrative and judicial decisions, it is in fact those decisions that are relevant for the purposes of the Directive, not Law No 44/2009 itself, which simply provided the legal basis for those individual implementing acts.

69.That argument cannot be accepted, inasmuch as the contested provisions of Law No 44/2009 constitute in themselves a ‘measure’ within the meaning of Directive 2001/24, in that they link to the moratorium granted by court order to Landsbanki effects that fell outside the scope of the judicial authority at the time when it was granted. What we have, therefore, is not a legal provision subsequently put into effect by a court but a legislative provision which the legislature itself applies as the additional and automatic effect of a previous judicial decision.

70.Nor, finally, do I consider admissible, at the other extreme, the argument put forward by Portugal to the effect that, in addition to measures adopted by the administrative and judicial authorities, Directive 2001/24 also covers the rules of law applicable to those measures. If that were the case, there would no longer be any difference between administrative and judicial measures (which are by definition individual and specific), on the one hand, and the general and abstract legislation that constitutes the precondition for those measures, on the other, and Directive 2001/24 would itself be rendered meaningless as a result.

71.It is at all events for the referring court to determine to what extent the Icelandic legislative provisions at issue, in particular Law No 44/2009, which may be applicable to the matter before it in the main proceedings, may be regarded, for the purposes of Article 2 of Directive 2001/24, as ‘measures which are intended to preserve or restore the financial situation of a credit institution’, in this case Landsbanki. To do this, it will have to assess the circumstances in which such measures were developed and adopted, the range of persons to whom they are actually addressed and any possible correlation between the fate of the institutions specifically affected, on the one hand, and the adoption of new legislative measures intended to adjust the legislature’s response to the new circumstances, on the other. In short, it will have to demonstrate that, regardless of its form and its author, functionally, Law No 44/2009 operates as an administrative or judicial decision for the purposes of Directive 2001/24, that is to say, a provision not intended to be of general or repeated application, but geared towards an individual and specific situation.

72.I feel some clarification is required at this point, for, in passing back to the Cour de cassation the task of determining the meaning and scope of Law No 44/2009, the Court would obviously be requiring it to give a ruling not on a rule of its own national law but on a provision of foreign law introduced into the main proceedings by virtue of having been relied on by one of the parties. Consequently, the Cour de cassation will not be able to determine the meaning of that Icelandic law in the same way as it would in the case of a provision of French law, the authentic interpretation of which is a matter for the French courts alone, which are obliged to determine its interpretation in accordance with the principle of jura novit curia.

73.Consequently, for the Cour de cassation, the meaning and scope of Law No 44/2009 is a matter of proof and, as such, dependent on the provision of evidence by the parties. In reality, therefore, it is the parties to the main proceedings who must furnish details of the Icelandic legislation relied on before the French courts, although it is obviously the latter which have to decide whether or not the case has been made in accordance with the rules of evidence applicable in French law.

74.Consequently, I submit by way of a second interim conclusion that, if it is shown, in the manner described above, that Law No 44/2009 may be regarded from a functional point of view as being an administrative or judicial decision for the purposes of Directive 2001/24, the measures which it contains will in principle be equivalent to measures adopted by the ‘administrative and judicial authorities’ within the meaning of that directive. However, in order for that to be definitively the case, a second condition is necessary.

(c) Equal treatment of creditors must also be maintained, in particular from the point of view of judicial protection

75.The importance that must, in my opinion, be attached to the objective pursued by Directive 2001/24 of ensuring that reorganisation measures adopted by one Member State are recognised throughout the European Union requires, as I have just submitted, consideration to be given to the content of the measures rather than to the body which adopts them. In this regard, it is my view that the autonomy enjoyed by the Member States in the assignment of public functions must be afforded the greatest respect.

76.That, however, is not the only objective pursued by Directive 2001/24. It also seeks to protect certain rights enjoyed by the creditors of financial institutions which are undergoing reorganisation. Very specifically, the Directive states that ‘the principle of equal treatment between creditors, as regards the opportunities open to them to take action, (15) requires the administrative or judicial authorities of the home Member State to adopt such measures as are necessary for the creditors in the host Member State to be able to exercise their rights to take action within the time-limit laid down’. (16) The Directive also provides, therefore, for the right of creditors to take action against reorganisation measures, thus upholding the right of access to effective judicial protection, now affirmed in Article 47 of the Charter of Fundamental Rights of the European Union. (17)

77.In this connection, the status of the body adopting a reorganisation measure inevitably takes on special relevance. Once again, however, it does so only inasmuch as, in many Member States, individuals have no right of direct action before the courts against measures adopted by the legislature. (18)

As I have said, one of the purposes (recognition of reorganisation measures in all Member States) of Directive 2001/24 would be frustrated if certain measures were excluded from its scope on the sole ground that they were adopted by the legislature, irrespective of whether or not, from the point of view of their substance, they satisfy the definition of ‘reorganisation measures’ established by the ‘Directive’. However, another of its purposes (equal treatment of creditors as regards their right to take action against measures affecting them) would also be frustrated if measures adopted by a legislature against which individuals have no right of action were not excluded from the scope of the Directive.

79.Equal treatment of creditors in the context of exercise of the right of action therefore requires reorganisation measures to be taken by means of decisions against which individuals do have a right of action before the courts. Once again, the legislative nature of the provision may pose a problem in this regard. However, this is not always or inevitably so, for, while there are some Member States in which individuals have no right of direct action against measures having the status of legislation, there are other Member States in which such a remedy does exist.

Consequently, I submit by way of a third interim conclusion that the possibility that the measures adopted by Law No 44/2009 may be regarded as ‘reorganisation measures’ within the meaning of the Directive (that is to say, measures relating to an individualised financial institution in respect of which all creditors are afforded equal treatment as regards the exercise of their right of access to the courts) is subject to the condition that the legal form taken by such measures must not deprive the persons affected by them of an effective remedy before the Icelandic courts. This, as I stated in points 72 and 73 of this Opinion, is a matter to be determined by the referring courts.

B – The second question

81.As I have already said, in my view, the second question raised presents fewer difficulties.

82.The Cour de cassation asks whether Article 32 of Directive 2001/24/EC must be interpreted as precluding a national provision that, from the date when a moratorium enters into force, prohibits or suspends any legal action against a financial establishment from having effect in regard to interim protective measures adopted in another Member State before the declaration of the moratorium.

83.Mr Giraux has submitted that this second question is inadmissible inasmuch as the rule of Icelandic law to which it refers (Article 98 of Law No 161/2002) is not applicable to the matter at issue in the main proceedings. In his opinion, given that that provision precludes only the bringing of legal proceedings against an institution subject to a moratorium, it is inoperative in relation to an attachment order predating that moratorium. He also argues, on the other hand, that the provision in question has been declared unconstitutional and replaced by Law No 44/2009.

84.In my opinion, the question is not inadmissible, for the ground on which it is based is clearly connected to the substance of the issue raised by the Cour de cassation, that is to say, whether attachment orders granted before the moratorium may be affected by a rule which, in principle, only precludes the adoption of interim protective measures against institutions already subject to a moratorium. On the other hand, the fact that the national provision relied on has been declared unconstitutional and replaced by a subsequent law is something whose impact on the determination of the law actually applicable to the main proceedings it is for the referring court to establish. The role of the Court of Justice is simply to assist it in resolving its doubts concerning the compatibility of Article 98 of Law No 161/2002 with EU law, that is to say, concerning one of the factors that it must take into account in forming its view on how to coordinate the application of all the provisions that may in principle be relevant to the resolution of the case before it.

As regards the substance of the question, it is my opinion that the answer should be based on the content of recital 30 in the preamble to Directive 2001/24, according to which ‘[t]he effects of reorganisation measures or winding-up proceedings on a lawsuit pending are governed by the law of the Member State in which the lawsuit is pending, by way of exception to the application of the lex concursus. The effects of those measures and procedures on individual enforcement actions arising from such lawsuits are governed by the legislation of the home Member State, in accordance with the general rule established by this Directive.’

As a result of that provision and in accordance with Article 32 of Directive 2001/24, the effects of the moratorium granted by Iceland on proceedings initiated in France will be determined by French law. With specific regard to the effects of the moratorium on enforcement measures arising from those proceedings once they have been concluded, the applicable law will be Icelandic law, in accordance with Article 10(2)(e) of Directive 2001/24. That interpretation, as the Commission points out, does not rule out the possibility of enforcement measures being adopted by the French courts, but simply requires that, when adopting them, they should comply with the rules of the home Member State that are applicable to reorganisation or winding-up measures.

In this instance, the applicability of Icelandic law to the rules governing the effects of a moratorium on measures arising from proceedings concluded in other Member States must be regarded as extending to the determination of the scope of such effects ratione temporis, as is clear, ultimately, from Articles 3(2), 9(1) and 10 of Directive 2001/24.

In short, I submit, by way of my final interim conclusion, that Article 32 of Directive 2001/24 must be interpreted as not preventing a national provision, such as Article 98 of the Icelandic law of 20 December 2002, from having effect in regard to measures such as those adopted in this instance by another Member State before the declaration of the moratorium provided for in that article.

VII – Conclusion

In the light of the foregoing observations, I suggest that the Court answer the questions referred as follows:

(1)Articles 3 and 9 of Directive 2001/24/EC on the reorganisation and winding-up of credit institutions must be interpreted as meaning that measures adopted by law, such as those contained in Icelandic Law No 44/2009 of 15 April 2009, must not be excluded from the scope of Directive 2001/24 on the sole ground that they were adopted by the national legislature itself.

(2)At all events, measures adopted by the legislature must actually be ‘measures’ within the meaning of Directive 2001/24, and therefore relate specifically to financial establishments individualised by their circumstances, and must not entail the prospective amendment of the general legislation in the field in question.

(3)The possibility of the measures adopted by Icelandic Law No 44/2009 being regarded as ‘reorganisation measures’ within the meaning of Directive 2001/24 is subject to the condition that their legal form should not deprive the persons affected by them of an effective remedy before the courts.

(4)It is for the referring court, when examining Icelandic law as part of its task of determining the facts, to determine whether the conditions set out in the foregoing two paragraphs have been satisfied.

(5)Article 32 of Directive 2001/24/EC must be interpreted as not preventing a national provision such as Article 98 of the Icelandic Law of 20 December 2009 from having effect with regard to interim protective measures adopted in another Member State before the moratorium provided for in that article was declared.

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(1) Original language: Spanish.

(2) Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ 2001 L 125, p. 15; ‘Directive 2001/24’ or ‘the Directive’).

(3) Landsbanki had been taken over by the Icelandic Financial Supervisory Authority on 7 October 2008, pursuant to Law No 125/2008. On 5 December, the Reykjavik District Court, on application from Landsbanki and pursuant to Law No 16/2008, had granted a moratorium on payments by Landsbank. That moratorium (which was extended several times) was notified as a reorganisation measure in the Official Journal of the European Union of 9 January 2009 (OJ 2009 C4, p. 3), in accordance with Article 6 of Directive 2001/24. The notification stated that legal proceedings could not be brought against Landsbanki while the moratorium was in force.

On 29 December 2008 the District Court appointed a winding-up board. On 22 April 2009 the creditors were invited to lodge their claims with the winding-up board before 30 October 2009. That invitation was published in the Official Journal of the European Union of 5 June 2009 (OJ 2009 C 341, p. 12).

On 22 November 2010 the District Court decided that Landsbanki should be wound up in accordance with the general rules of Law No 161/2002. That decision too was published in the Official Journal of the European Union of 16 December 2010 (OJ 2010 C 341, p. 12).

(4) The situation is therefore very different from that at issue in Case C-389/08 Base and Others [2010] ECR I-9073, concerning Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (OJ 2002 L 108, p. 33) and Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service users’ rights relating to electronic communications networks and services (OJ 2002 L 108, p. 51). These are both directives which do not expressly specify the authorities within the Member States to which the latter are to entrust certain regulatory tasks. The solution adopted by the Court of Justice in paragraph 30 (of the aforementioned judgment), based on respect for the aims of the directives in question, is none the less the same as that which I am proposing here, which is based on the same consideration.

(5) On Directive 2001/24, reference may be had generally to Wessels, B., ‘Commentary on Directive 2001/24/EC on the reorganisation and winding-up of credit institutions», in EU banking and insurance insolvency, 2006, pp. 47 to 103; and Deguée, J.-P., ‘La directive 2001/24/CE sur l'assainissement et la liquidation des établissements de crédit : enfin un droit international privé uniforme des procédures d'insolvabilité en matière bancaire!’, in Sûretés bancaires et financières, 2004, pp. 183 to 226 .

(6) Recital 6 in the preamble to Directive 2001/24.

(7) Recital 7 in the preamble to Directive 2001/24.

(8) Emphasis added.

(9) A discussion of the theoretical basis for this form of statute in the history of constitutional law may be found in Muñoz Machado, S., Tratado de Derecho Administrativo y Derecho Público General I, Iustel, 3rd edition, Madrid, 2011, pp. 682 to 707. See also Santamaría Pastor, J.A., Fundamentos de Derecho Administrativo I, Centro de Estudios Ramón Areces, Madrid, 1988, pp. 513 to 554.

(10) It is after all in those legal systems that a solution has to be found to the question of the permissibility of special legislative provisions, from the point of view of both the internal division of powers and subjective rights, in particular the principle of equal treatment.

(11) Paragraph 10 of its observations.

(12) An account of the Icelandic authorities’ response to the financial crisis can be found in E.G. Gunnarsson, ‘The Icelandic Regulatory Responses to the Financial Crisis’, in European Business Organization Law Review, 12, 2001, pp. 1 to 39.

(13) In this respect, the solution proposed here is in the spirit of that adopted by the Court of Justice in Joined Cases C-128/09 to C-131/09, C-134/09 and C-135/09 Boxus and Others [2011] ECR I-9711, paragraphs 35 to 48, where regard was had primarily to the specific procedure used to draft a legislative provision and the information available to the legislature rather to the legislative form of the provision finally adopted.