Request for a preliminary ruling from the Kúria (Hungary) lodged on 3 April 2017 — SH v TG
(Case C-168/17)
Language of the case: Hungarian
Referring court
Kúria
Parties to the main proceedings
Applicant: SH
Defendant: TG
Intervener: UF
Questions referred
Do the following obligations to pay the costs arising under a guarantee, derived from a number of counter-guarantee agreements concluded, as part of a chain of agreements, for the purpose of issuing a bank guarantee in favour of the Libyan Housing and Infrastructure Board (‘HIB’), fall within the scope of Regulation No 204/2011 1 or, as the case may be, Regulation No 2016/44: 2
1.1. where, under a counter-guarantee agreement, a bank established in the European Union has an obligation to pay the costs to a Libyan bank which is included on the prohibition list in Annex III to Regulation No 204/2011;
1.2. where, under a counter-guarantee agreement, a bank established in the European Union has an obligation to pay the costs to a Libyan bank which is not included on the prohibition list in Annex III to Regulation No 204/2011 but the bank guarantee is issued in favour of HIB, which is included on that list;
1.3. where, during the period following the amendment of Regulation No 204/2011 by Regulation No 45/2014, Regulation No 204/2011 prohibits direct or indirect payments to any Libyan entity;
1.4. where the obligation to pay the costs arising under the guarantee derives from a counter-guarantee agreement concluded, in the context of the relationship between two banks established in the European Union, within a chain of agreements, for the purpose of issuing a bank guarantee in favour of HIB;
1.5. where calculation of the costs arising under the guarantee takes place after expiry of the guarantee period, in legal proceedings, after the entry into force of Regulation No 2016/44?
If the obligation referred to in points 1.1 and 1.2 above to pay the costs arising under a guarantee falls within the scope of the regulation, should the costs so arising that are paid to a Libyan bank — which was also included for a time on the prohibition list in Annex III to Regulation No 204/2011 –– for the purpose of issuing a guarantee of repayment of the advance and a guarantee of proper performance in favour of HIB be considered to constitute funds used directly or indirectly for the benefit of the legal persons, entities or bodies listed in Annex III to Regulation No 204/2011?
Is Article 12(1)(b) of Regulation No 204/2011 to be interpreted, during the period following the amendment of that regulation by Regulation No 45/2014 (point 1.3), as meaning that the costs and expenses claimed by a Libyan bank and paid, under a counter-guarantee agreement, by a bank established in the European Union should be considered to constitute, directly or indirectly, claims under a guarantee?
Must a bank established in the European Union which, under a counter-guarantee agreement concluded, within a chain of agreements, for the purpose of issuing a bank guarantee in favour of HIB, is obliged to pay the costs arising under the guarantee to a Libyan entity (point 1.4) be considered to be a person or entity within the meaning of Article 12(1)(c) of Regulation No 204/2011, as amended by Regulation No 45/2014 — that is, a person or entity acting through or on behalf of or for the benefit of one of the persons, entities or bodies referred to in point (a) or (b) of Article 12(1)? Should the costs arising under the guarantee claimed by that bank from another bank established in the European Union be considered to constitute, directly or indirectly, claims under a guarantee?
Does the exclusion rule in Article 9 of Regulation No 204/2011 refer to any payment?
Where calculation of the costs arising under a guarantee takes place after the entry into force of Council Regulation No 2016/44, which repealed Regulation No 204/2011 but which contains provisions that are in essence identical (point 1.5), will Regulation No 2016/44 be applicable for the purpose of resolving the dispute between the parties and must Article 17(1)(b) of that regulation be interpreted as meaning that the costs and expenses claimed by a Libyan bank and paid, under a counter-guarantee agreement, by a bank established in the European Union, should be considered to constitute, directly or indirectly, claims under a guarantee? Must a bank established in the European Union which, under a counter-guarantee agreement concluded, within a chain of agreements, for the purpose of issuing a bank guarantee in favour of HIB, is obliged to pay the costs arising under the guarantee to a Libyan entity be considered to be a person or entity within the meaning of Article 17(1)(c) of that regulation — that is, a person or entity acting through or on behalf of or for the benefit of one of the persons, entities or bodies referred to in point (a) or (b) of Article 17(1)? Should the costs arising under the guarantee claimed by that bank from another bank established in the European Union be considered to constitute, directly or indirectly, claims under a guarantee?
____________1 Council Regulation (EU) No 204/2011 of 2 March 2011 concerning restrictive measures in view of the situation in Libya (OJ 2011 L 58, p. 1).
2 Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 (OJ 2016 L 12, p. 1).