Opinion of Advocate General Szpunar delivered on 11 May 2023.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2023:401
• Date: 11 May 2023
• Celex Number: 62022CC0278
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 11 May 2023(1)

Case C‑278/22

AUTOTECHNICA FLEET SERVICES d.o.o., formerly ANTERRA d.o.o.

v

Hrvatska agencija za nadzor financijskih usluga

(Request for a preliminary ruling from the Upravni sud u Zagrebu (Administrative Court, Zagreb, Croatia))

(Request for a preliminary ruling – Freedom of establishment – Freedom to provide services – Scope of Directive 2006/123/EC – Article 2(2)(b) – Financial services – Financial and operating leasing – Articles 9 and 10 – Requirement to obtain authorisation from a supervisory agency)

I. Introduction

1. The present request for a preliminary ruling from the Upravni sud u Zagrebu (Administrative Court, Zagreb, Croatia) essentially concerns the scope of application of Directive 2006/123/EC, (2) also known as ‘the Services Directive’. A company which leases out cars to its customers was ordered to terminate its activities on the ground of the absence of a valid authorisation to offer financial services.

2. The Court has previously been faced with the issue of various forms of leasing, notably in the context of value added tax (VAT) and of consumer law. However, this is the first case in which leasing falls to be considered in the context of Directive 2006/123.

3. In this Opinion I shall propose to the Court that activities such as those at issue in the main proceedings, which consist of offering what is known as ‘operating leasing’, are not excluded from the scope of Directive 2006/123; they do not constitute financial services within the meaning of Article 2(2)(b) of that directive. Consequently, a Member State may not provide for an authorisation scheme to be administered by an agency responsible for supervising financial markets.

II. Legal framework

A. European Union law

1. Directive 2006/123

4. Pursuant to Article 2(2)(b) of Directive 2006/123, the directive is not to apply to ‘financial services, such as banking, credit, insurance and re-insurance, occupational or personal pensions, securities, investment funds, payment and investment advice, including the services listed in Annex I to Directive 2006/48/EC [of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (OJ 2006 L 177, p. 1)]’.

5. Section 1 of Chapter III (3) of Directive 2006/123 concerns ‘authorisations’ and contains Articles 9 to 13.

6. Article 9 of Directive 2006/123, entitled ‘Authorisation schemes’, provides in paragraph 1 thereof:

‘Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied:

(a) the authorisation scheme does not discriminate against the provider in question;

(b) the need for an authorisation scheme is justified by an overriding reason relating to the public interest;

(c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective.’

7. According to Article 10 (‘Conditions for the granting of authorisation’) of Directive 2006/123:

‘1. Authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.

2. The criteria referred to in paragraph 1 shall be:

(a) non-discriminatory;

(b) justified by an overriding reason relating to the public interest;

(c) proportionate to that public interest objective;

(d) clear and unambiguous;

(e) objective;

(f) made public in advance;

(g) transparent and accessible.

3. The conditions for granting authorisation for a new establishment shall not duplicate requirements and controls which are equivalent or essentially comparable as regards their purpose to which the provider is already subject in another Member State or in the same Member State. The liaison points referred to in Article 28(2) and the provider shall assist the competent authority by providing any necessary information regarding those requirements.

4. The authorisation shall enable the provider to have access to the service activity, or to exercise that activity, throughout the national territory, including by means of setting up agencies, subsidiaries, branches or offices, except where an authorisation for each individual establishment or a limitation of the authorisation to a certain part of the territory is justified by an overriding reason relating to the public interest.

5. The authorisation shall be granted as soon as it is established, in the light of an appropriate examination, that the conditions for authorisation have been met.

6. Except in the case of the granting of an authorisation, any decision from the competent authorities, including refusal or withdrawal of an authorisation, shall be fully reasoned and shall be open to challenge before the courts or other instances of appeal.

7. This Article shall not call into question the allocation of the competences, at local or regional level, of the Member States’ authorities granting authorisations.’

B. Croatian law

8. Article 15(1) of the Zakon o Hrvatskoj agenciji za nadzor financijskih usluga (Law on the Croatian Agency for the Supervision of Financial Services) (Narodne novine, No 140/05, No 154/11 and No 12/12) provides that, for the purpose of exercising its public prerogatives, the Hrvatska agencija za nadzor financijskih usluga (Croatian Agency for the Supervision of Financial Services; ‘the Agency’) is authorised to issue implementing rules under that law and under laws that regulate the capital market, investment funds and other funds, the acquisition of joint stock companies, pension insurance companies, insurance, reinsurance and financial services, as well as under other laws if those laws authorise it to do so.

9. Article 15(2) of the Law on the Croatian Agency for the Supervision of Financial Services provides that, for the purpose of exercising its public prerogatives, the Agency is authorised to supervise the activities of the entities subject to its supervision, which are specified in paragraph 1 of that article, and of legal entities engaging in factoring services, in so far as the latter are not provided by banks within the framework of their registered activities. The Agency is also authorised to impose measures aimed at eliminating identified illegalities and irregularities.

10. Article 3(1) of the Zakon o leasingu (Leasing Law) (Narodne novine, No 141/13) provides that a leasing company is a commercial company with its registered office in the Republic of Croatia and entered in the court register on the basis of an authorisation to engage in leasing activities which is issued by the Agency under the terms and conditions set forth in the Leasing Law.

11. Article 4(1) of that law provides that leasing is a legal transaction whereby the lessor acquires a leased asset in such a manner that it purchases it from a supplier and acquires ownership of the leased asset, subsequently allowing the lessee to use the leased asset for a certain period of time, use for which the lessee undertakes to pay a fee.

12. Article 5(1) of that law provides that, depending on the subject matter and characteristics of the lease, the latter may be a finance lease or an operating lease.

13. Article 5(2) of the Leasing Law provides that a finance lease is a legal transaction whereby the lessee, during the period of use of the leased asset, pays a fee to the lessor which takes into account the total value of the leased asset, bears the cost of depreciation of the asset, and by means of a buy-out option may acquire ownership of the asset for a fixed price which, at the time of exercising that option, is less than the actual value of that asset at that time. The risks and benefits of ownership of the leased asset are largely transferred to the lessee.

14. Article 5(3) of the Leasing Law provides that an operating lease is a legal transaction whereby the lessee, during the period of use of the leased asset, pays a specified fee to the lessor, which need not take into account the total value of the leased asset. The lessor bears the cost of depreciation of the leased asset and the lessee does not have a contractual buy-out option; the risks and benefits of ownership of the leased asset largely remain with the lessor, that is to say, they are not transferred to the lessee.

15. Article 6(1) of the Leasing Law provides that leasing activities may be carried out by a leasing company referred to in Article 3 of that law, a leasing company from a Member State referred to in Article 46 of that law, and a branch of a leasing company from a third country referred to in Article 48 of that law.

III. Facts, procedure and questions referred

16. AUTOTECHNICA FLEET SERVICES (‘Autotechnica’) is a company registered in Croatia that carries out activities of ‘leasing of motor vehicles’, ‘rental and leasing of cars and lorries (with or without a driver)’ and ‘rental and leasing of bicycles, scooters, etc.’. It is a subsidiary of a parent company established in another EU Member State where that company provides services of the same type as those at issue in the present case.

17. The Agency found, during an extraordinary audit of Autotechnica, that that company had entered into three long-term rental agreements (involving four cars) and, subsequently, at the express request of its customers, had acquired the cars by purchasing them from the supplier, thereby acquiring ownership of them, and made them available to customers to use. Based on these facts, the Agency considered that Autotechnica was, in essence, carrying out a leasing activity without a valid authorisation. Consequently, by decision of 14 February 2019 (‘the contested decision’), it prohibited Autotechnica from carrying out leasing activities without a valid authorisation.

18. Autotechnica brought an action...