Opinion of Advocate General Campos Sánchez-Bordona delivered on 15 June 2017.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2017:475
• Celex Number: 62015CC0688
• Court: Court of Justice (European Union)
• Date: 15 June 2017

Provisional text

OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 15 June 2017(1)

Joined Cases C‑688/15 and C‑109/16

Agnieška Anisimovienė and Others

v

BAB bankas Snoras,

Indėlių ir investicijų draudimas VĮ

(C‑688/15)

and

Indėlių ir investicijų draudimas VĮ

v

Alvydas Raišelis

(C‑109/16)

(Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania))

(Preliminary ruling — Deposit-guarantee and investor-compensation schemes — Directive 94/19/EC — Directive 97/9/EC — Definition of ‘deposit’ — Definition of ‘normal banking transaction’ — Definition of ‘money held on behalf of an investor in connection with investment business’ — Direct effect of Directive 94/19 and Directive 97/9 — Money transferred from personal bank accounts to an account opened in the name of a credit institution and to be used as payment for financial instruments issued by that institution)

1. The Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania) again seeks a preliminary ruling from the Court of Justice in two disputes of which it is seised, resulting from the insolvency of a Lithuanian credit institution.

2. As in the case which led to the judgment of the Court of 25 June 2015, Indėlių ir investicijų draudimas and Nemaniūnas, (2) the referring court requests an interpretation of Directives 94/19/EC (3) and 97/9/EC (4) in order to identify the extent of the protection which each provides to savers and investors, respectively.

3. In particular, the referring court asks whether those directives may be applied to sums transferred to a credit institution by its customers to pay for the purchase of shares or for subscription to that credit institution’s bonds. Both transactions were ultimately frustrated as a result of the bank’s subsequent insolvency.

I. Legislative framework

A. EU law

1. Directive 94/19

4. The 1^st, 18^th and 20^th recitals of the directive state:

‘[1] … in accordance with the objectives of the Treaty, the harmonious development of the activities of credit institutions throughout the Community should be promoted through the elimination of all restrictions on the right of establishment and the freedom to provide services, while increasing the stability of the banking system and protection for savers’.

‘[18] … a Member State must be able to exclude certain categories of specifically listed deposits or depositors, if it does not consider that they need special protection, from the guarantee afforded by deposit-guarantee schemes’.

‘[20] … the principle of a harmonised minimum limit per depositor rather than per deposit has been retained; whereas it is therefore appropriate to take into consideration the deposits made by depositors who either are not mentioned as holders of an account or are not the sole holders; whereas the limit must therefore be applied to each identifiable depositor; whereas that should not apply to collective investment undertakings subject to special protection rules which do not apply to the aforementioned deposits’.

5. According to Article 1:

‘For the purposes of this Directive:

(1) “deposit” shall mean any credit balance which results from funds left in an account or from temporary situations deriving from normal banking transactions and which a credit institution must repay under the legal and contractual conditions applicable, and any debt evidenced by a certificate issued by a credit institution.

...

(3) “unavailable deposit” shall mean a deposit that is due and payable but has not been paid by a credit institution under the legal and contractual conditions applicable thereto, where either:

(i) the relevant competent authorities have determined that in their view the credit institution concerned appears to be unable for the time being, for reasons which are directly related to its financial circumstances, to repay the deposit and to have no current prospect of being able to do so.

…; or

(ii) a judicial authority has made a ruling for reasons which are directly related to the credit institution’s financial circumstances which has the effect of suspending depositors’ ability to make claims against it, should that occur before the aforementioned determination has been made;

(4) “credit institution” shall mean an undertaking the business of which is to receive deposits or other repayable funds from the public and to grant credits for its own account;

...’

6. Article 2 provides:

‘The following shall be excluded from any repayment by guarantee schemes:

– subject to Article 8(3), deposits made by other credit institutions on their own behalf and for their own account,

– all instruments which would fall within the definition of “own funds” in Article 2 of Council Directive 89/299/EEC of 17 April 1989 on the own funds of credit institutions,

...’

7. Article 3(1) is worded as follows

‘Each Member State shall ensure that within its territory one or more deposit-guarantee schemes are introduced and officially recognised. Except in the circumstances envisaged in the second subparagraph and in paragraph 4, no credit institution authorised in that Member State pursuant to Article 3 of Directive 77/780/EEC may take deposits unless it is a member of such a scheme.

...’

8. Article 7 states

‘1. Member States shall ensure that the coverage for the aggregate deposits of each depositor shall be at least EUR 50 000 in the event of deposits being unavailable.

1a. By 31 December 2010, Member States shall ensure that the coverage for the aggregate deposits of each depositor shall be set at EUR 100 000 in the event of deposits being unavailable.

...

2. Member States may provide that certain depositors or deposits shall be excluded from guarantee or shall be granted a lower level of guarantee. Those exclusions are listed in Annex I.’

9. Article 8(3) provides

‘Where the depositor is not absolutely entitled to the sums held in an account, the person who is absolutely entitled shall be covered by the guarantee, provided that that person has been identified or is identifiable before the date on which the competent authorities make the determination described in Article 1(3)(i) or the judicial authority makes the ruling described in Article 1(3)(ii). If there are several persons who are absolutely entitled, the share of each under the arrangements subject to which the sums are managed shall be taken into account when the limits provided for in Article 7(1), (3) and (4) are calculated.’

10. Point 12 of Annex I (‘List of exclusions referred to in Article 7(2)’) refers to ‘Debt securities issued by the same institution and liabilities arising out of own acceptances and promissory notes.’

2. Directive 97/9

11. Recitals 4, 8 and 9 state:

‘(4) … the protection of investors and the maintenance of confidence in the financial system are an important aspect of the completion and proper functioning of the internal market in this area; … to that end it is therefore essential that each Member State should have an investor-compensation scheme that guarantees a harmonised minimum level of protection at least for the small investor in the event of an investment firm being unable to meet its obligations to its investor clients’.

‘(8) … therefore, every Member State should be required to have an investor-compensation scheme or schemes to which every such investment firm would belong; … each scheme must cover money and instruments held by an investment firm in connection with an investor’s investment operations which, where an investment firm is unable to meet its obligations to its investor clients, cannot be returned to the investor; … this is entirely without prejudice to the rules and procedures applicable in each Member State as regards the decisions to be taken in the event of the insolvency or winding-up of an investment firm’.

‘(9) … the definition of investment firm includes credit institutions which are authorised to provide investment services; … every such credit institution must also be required to belong to an investor-compensation scheme to cover its investment business; …, however, it is not necessary to require such a credit institution to belong to two separate schemes where a single scheme meets the requirements both of this Directive and of Directive 94/19 …; however, in the case of investment firms which are credit institutions it may in certain cases be difficult to distinguish between deposits covered by Directive [94/19] and money held in connection with investment business; … Member States should be allowed to determine which Directive shall apply to such claims’.

12. According to Article 1of the directive

‘For the purposes of this Directive:

(1) “investment firm” shall mean an investment firm as defined in Article 1(2) of Directive 93/22/EEC, ^[ (5)^]

– authorised in accordance with Article 3 of Directive [93/22], or

– authorised as a credit institution in accordance with Council Directive 77/780/EEC and Council Directive 89/646/EEC, the authorisation of which covers one or more of the investment services listed in Section A of the Annex to Directive [93/22];

(2) “investment business” shall mean any investment service as defined in Article 1 (1) of Directive [93/22] and the service referred to in point 1 of Section C of the Annex to that Directive;

(3) “instruments” shall mean the instruments listed in Section B of the Annex to Directive [93/22];

(4) “investor” shall mean any person who has entrusted money or instruments to an investment firm in connection with investment business;

...’

13. Article 2 of the directive provides

‘1. Each Member State shall ensure that within its territory one or more investor-compensation schemes are introduced and officially recognised. Except in the circumstances envisaged in the second subparagraph and in Article 5(3), no investment firm authorised in that Member State may carry on investment business unless it belongs to such a scheme.

...

2. A scheme shall provide cover for investors...