Judgment of the Court (Third Chamber) of 25 April 2013 (request for a preliminary ruling from the Tribunal Supremo - Spain) - Jyske Bank Gibraltar Ltd v Administración del Estado
(Case C-212/11)
(Prevention of the use of the financial system for the purposes of money laundering and terrorist financing - Directive 2005/60/EC - Article 22(2) - Decision 2000/642/JHA - Requirement to report suspicious financial transactions applicable to credit institutions - Institution operating under the rules on the freedom to provide services - Identification of the national financial information unit responsible for the collection of information - Article 56 TFEU - Obstacle to freedom to provide services - Overriding requirements in the public interest - Proportionality)
Language of the case: Spanish
Referring court
Tribunal Supremo
Parties to the main proceedings
Applicant: Jyske Bank Gibraltar Ltd
Defendant: Administración del Estado
Re:
Request for a preliminary ruling - Tribunal Supremo - Interpretation of Article 22(2) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ 2005 L 309, p.15) - National legislation under which it is a direct and mandatory requirement that the information which must be provided by credit institutions operating in its territory without a permanent establishment be forwarded by them directly to the competent national authorities of that State
Operative part of the judgment
Article 22(2) of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as not precluding legislation of a Member State which requires credit institutions to communicate the information required for the purpose of combating money laundering and terrorist financing directly to the FIU of that Member State where the institutions carry out their activities in that State under the freedom to provide services, to the extent that that legislation does not compromise the effectiveness of that directive and of Council Decision 2000/642/JHA of 17 October 2000 concerning arrangements for cooperation between financial intelligence units of the Member States in respect of exchanging information;
Article 56 TFEU must be interpreted as not precluding such legislation if the latter is justified by overriding reasons in the public interest, secures the attainment of the aim in view and does not go beyond that which is necessary in order to attain it, and is applied in a non-discriminatory manner, which it is for the national court to ascertain taking account of the following considerations:
such legislation is appropriate to attain the aim of preventing money laundering and terrorist financing if it enables the Member State concerned effectively to supervise and suspend suspicious financial transactions concluded by credit institutions offering their services in the national territory and, if appropriate, to pursue and punish those responsible;
the obligation imposed by that legislation on credit institutions carrying out their activities under the freedom to provide services may constitute a proportionate measure in pursuit of that aim in the absence, at the time of the facts in the main proceedings, of any effective mechanism guaranteeing full and complete cooperation between financial intelligence units.
____________1 - OJ C 226, 30.7.2011.