OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 12 February 2015 (1)
Case C‑18/14
CO Sociedad de Gestión y Participación SA,
Depsa 96 SA,
INOC SA,
Corporación Catalana Occidente SA,
La Previsión 96 SA,
Grupo Catalana Occidente SA,
Grupo Compañia Española de Crédito y Caución SL,
Atradius NV,
Atradius Insurance Holding NV,
J.M. Serra Farré,
M.A. Serra Farré,
J. Serra Farré
v
De Nederlandsche Bank NV
and
De Nederlandsche Bank NV
v
CO Sociedad de Gestión y Participación SA,
96 SA,
INOC SA,
Corporación Catalana Occidente SA,
La Previsión 96 SA,
Grupo Catalana Occidente SA,
Grupo Compañia Española de Crédito y Caución SL,
Atradius NV,
Atradius Insurance Holding NV,
J.M. Serra Farré,
M.A. Serra Farré,
J. Serra Farré,
(Request for a preliminary ruling
from the College van Beroep voor het bedrijfsleven (Netherlands))
(Prudential assessment of a proposed qualifying holding in an insurance undertaking — Directive 2007/44/EC — Directive 92/49/EEC — Procedure and assessment criteria — Conditional approval — Articles 49 TFEU and 63 TFEU — Right to a hearing — Obligation to state reasons)
I – Introduction
1. This request for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal in matters of trade and industry) (Netherlands) will give the Court the opportunity to rule in detail on the procedure for the assessment by the competent authorities of the Member States of the proposed acquisition of a holding in an insurance undertaking.
2. Every undertaking wishing to pursue the business of insurance must obtain prior approval from the competent authorities of the Member State in whose territory it is established. Similarly, every undertaking wishing to acquire a qualifying holding in an approved insurance undertaking must obtain the prior approval of the competent authorities of the Member State in whose territory the undertaking targeted by the proposed acquisition is located.
3. The prior approval requirement for the proposed acquisition of a qualifying holding was introduced, in the case of non-life insurance, by Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (‘Third Non-life Insurance Directive’). (2) Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007 amending Council Directive 92/49/EEC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC as regards procedural rules and evaluation criteria for the prudential assessment of acquisitions and increase of holdings in the financial sector subsequently specified the assessment criteria and procedure. (3)
4. In that regard, Directive 2007/44 amended Article 15 of Directive 92/49. It also inserted new articles in Directive 92/49, in particular Article 15a on the procedure for assessing the acquisition or disposal of a qualifying holding and Article 15b on the assessment criteria. As a consequence, the text of Article 15 stems from a combined reading of Article 15 of Directive 92/49 and Article 1 of Directive 2007/44, which amends it. The text of Articles 15a and 15b appears in Article 1 of Directive 2007/44. To simplify matters, I shall refer to these provisions below as ‘Article 15 of Directive 92/49, as amended’, ‘Article 15a of Directive 92/49, as amended’ and ‘Article 15b of Directive 92/49, as amended’.
5. In the present case, the Court is called upon to rule whether the Member States may, when approving an acquisition, and without infringing Directive 2007/44, impose compliance with certain conditions on the proposed acquirer. The fact is that, although it provides that the competent authorities may oppose the proposed acquisition, Directive 2007/44 does not expressly provide for the option of conditional approval. (4)
II – The legal background
A – EU law
6. Article 15 of Directive 92/49, as amended, requires prior notification of the proposed acquisition of a qualifying holding (5) in an insurance undertaking.
7. Article 15a of Directive 92/49, as amended, concerns the assessment procedure. In particular, it fixes a maximum period for assessment of the proposed acquisition and provides for the interruption of that period.
8. Article 15b(1) of Directive 92/49, as amended, lists the five criteria that the competent authorities must take into account in appraising ‘the suitability of the proposed acquirer and the financial soundness of the proposed acquisition’, namely the reputation of the proposed acquirer, the reputation and experience of any person who will direct the business of the insurance undertaking as a result of the proposed acquisition, the financial soundness of the proposed acquirer, whether the insurance undertaking will be able to comply with the prudential requirements, and whether there is any suspicion of money laundering or terrorist financing.
B – Netherlands legislation
9. Article 3:95 of the Wet op het financieel toezicht (Financial Supervision Law) of 28 September 2006 (the ‘Wft’) requires prior notification of the proposed acquisition of a qualifying holding (6) in an insurance undertaking.
10. Article 3:100 of the Wft provides that the competent authority, namely De Nederlandsche Bank (the ‘DNB’), is to issue a ‘declaration of no objection’ in respect of the proposed acquisition of a qualifying holding ‘unless’ the criteria set out in that provision are not met. Article 3:100 of the Wft was amended when Directive 2007/44 was transposed into Netherlands law. Prior to transposition, the criterion was, in particular, the ‘sound and prudent operations’ of the undertaking targeted by the proposed acquisition. Following transposition, there are five criteria, namely the suitability of the proposed acquirer to ‘determine … the strategy of the undertaking’ targeted by the proposed acquisition, the capability of those who will direct its business, the financial soundness of the proposed acquirer, the capacity of the undertaking targeted by the proposed acquisition to meet its prudential obligations and whether there is any suspicion of money laundering or terrorist financing.
11. Article 3:104(1) of the Wft provides that the DNB ‘may attach to the declaration of no objection … requirements or conditions having regard to the interests’ which, inter alia, Article 3:100 of that law is intended to protect. Unlike that Article 3:100, that provision was not amended when Directive 2007/44 was transposed into Netherlands law. During the hearing, the representative of the DNB explained that the proposed acquirer’s failure to comply with a condition did not automatically result in the declaration of no objection provided for in Article 3:100 of the Wft being nullified: the previous situation is restored only if the DNB withdraws the declaration of no objection, which it does only as a last resort, after having, for example, imposed a periodic penalty payment.
III – The facts, the procedure in the main proceedings and the questions referred for a preliminary ruling
12. In 2007, Grupo Catalana Occidente SA, a company established in Barcelona (Spain) (‘GCO’), acquired, directly or indirectly, a 64.23% holding in the capital of Atradius NV (‘ATNV’) and its subsidiary Atradius Credit Insurance NV (‘ACINV’), which are established in Amsterdam (Netherlands) and are one of the major global players in credit insurance. By a decision of 13 August 2007, the DNB issued a declaration of no objection within the meaning of Article 3:100 of the Wft in respect of that acquisition.
13. GCO then increased its holding in the capital of ATNV and ACINV until it held 100%. By a decision of 25 May 2010, the DNB issued a declaration of no objection within the meaning of Article 3:100 of the Wft in respect of that operation. However, it attached three conditions to the declaration of no objection, namely: first, ATNV and the companies in its group must provide to the DNB the cooperation required for its prudential supervision; second, dividend payments by ATNV and ACINV must not result, in particular, in their solvency ratios being below a specified threshold; and, third, at least half of the members of the supervisory boards of ATNV and ACINV, including the chairs, must be independent of the shareholders.
14. Moreover, by a decision of 20 July 2010, the DNB amended the declaration of no objection issued on 13 August 2007 to attach to it the same conditions as those attached to its decision of 25 May 2010.
15. Following administrative complaints against the decisions of the DNB of 25 May and 20 July 2010 and a judgment of the Rechtbank Rotterdam (District Court, Rotterdam), an appeal was brought before the referring court by, inter alia, GCO. The referring court asks whether, following the adoption of Directive 2007/44, the DNB retained the competence to attach requirements to the declarations of no objection it issues pursuant to Article 3:100 of the Wft. The College van Beroep voor het bedrijfsleven therefore decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) If the competent authority explicitly approves a proposed acquisition as referred to in Article 15a of [Directive 92/49, as amended], (7) is it permitted to impose restrictions or requirements on such approval under national law? Does it make a difference in this regard whether such restrictions or requirements are based on previous commitments given by the proposed acquirer, as referred to in recital 3 in the preamble to Directive 2007/44?
(2) If Question 1 is answered in the affirmative, must the restrictions or conditions imposed by the competent authority be necessary in the sense that, were they not to be imposed, the competent authority would find it necessary to oppose the proposed acquisition in the light of the assessment based on the criteria laid down in Article 15b(1) of [Directive 92/49, as amended]?
(3) If it is permissible to impose restrictions or conditions, does Article 15b(1) of [Directive 92/49, as amended] provide a basis for the competent authority to lay down requirements for the acquisition in regard to the “corporate governance” of the undertaking the acquisition of which is proposed, such as a two-tier supervisory board structure?’
16. Written observations on these questions were submitted by GCO, the DNB, the Dutch, Belgian, Estonian, French, Italian and Portuguese Governments and the European Commission. GCO, the DNB, the Dutch and Portuguese Governments and the European Commission also presented oral argument at the hearing on 26 November 2014.
IV – Legal appraisal
A – The first question referred
17. By its first question, the referring court asks the Court, in essence, whether a national measure may provide for the option of conditional approval of a proposed acquisition, whereas Directive 2007/44 makes no provision for such an option. If this question is answered in the affirmative, the referring court asks whether the national authorities may impose conditions unilaterally or whether they may only accept the conditions put forward by the proposed acquirer.
1. The lack of express provision for a conditional approval option in Directive 2007/44
18. Directive 2007/44 provides expressly that the competent authorities may oppose the proposed acquisition. Article 15b(2) of Directive 92/49, as amended, in fact provides that the competent authorities ‘may oppose the proposed acquisition only if there are reasonable grounds for doing so on the basis of the criteria set out in paragraph 1’ and Article 15a(4) of Directive 92/49, as amended, stipulates that, ‘[i]f the competent authorities, …, decide to oppose the proposed acquisition’, they are to inform the proposed acquirer in writing and provide the reasons for that decision. (8) By contrast, as regards the approval of the proposed acquisition, Article 15a(5) of Directive 92/49, as amended, confines itself to providing that silence is tantamount to approval, (9) and recital 5 in the preamble to Directive 2007/44 states that the competent authorities are to inform the proposed acquirer of a ‘positive’ assessment, in any event if requested to do so by the proposed acquirer. A fortiori, Directive 2007/44 makes no reference to conditional approval.
19. Contrary to the submissions of the Netherlands Government and the Commission, Article 15b(3) of Directive 92/49, as amended, does not appear to me to provide for a conditional approval option.
20. That provision provides that ‘Member States shall neither impose any prior conditions in respect of the level of holding that must be acquired …’. The Netherlands Government and the Commission propose an a contrario reading of this provision, under which the Member States could impose ‘prior conditions’ in the sense of conditions attached to the approval of the proposed acquisition, where such conditions do not concern the level of holding. The Commission also relies on recital 3 in the preamble to Directive 2007/44, under which ‘[t]his Directive should not prevent the competent authorities from taking into account commitments made by the proposed acquirer’, and on the guidelines of the Committee of European Insurance and Occupational Pensions Supervisors (the ‘CEIOPS Guidelines’), which refer to the possibility of commitments. (10)
21. I note, however, that Directive 92/49 and Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (11) use the terms ‘conditions for exercise of business’ and ‘conditions of business’ in connection with the criteria for the taking-up of insurance business and the criteria for exercising that business. (12) The term ‘conditions’ thus appears to refer to regulatory criteria rather than conditions attached to the approval of a specific proposed acquisition. Moreover, the prohibition set out in Article 15b(3) of Directive 92/49, as amended, is imposed on the Member States and not on the competent authorities. It is the latter which, on assessment of a specific proposal, impose conditions.
22. Article 15(4) of Directive 92/49, as amended, also does not appear to me to provide for a conditional approval option any more than Article 15b(3) of Directive 92/49, as amended, contrary to the submissions of the DNB and the Dutch Government.
23. Article 15(4) of Directive 92/49, as amended, provides that ‘Member States shall require that, where the influence exercised by the persons referred to in paragraph 1 is likely to operate against the prudent and sound management of an insurance undertaking, the competent authorities of the home Member State shall take appropriate measures to put an end to that situation’ by adopting ‘for example, … injunctions, sanctions against directors and managers, or suspension of the exercise of the voting rights attaching to the shares held by the shareholders or members in question’. Contrary to the submissions of the DNB and the Netherlands Government, the ‘appropriate measures’ referred to in that provision are not conditions attached to the approval of a proposed acquisition, which would be imposed ex ante, that is to say before the implementation of such a proposal. They are measures adopted by the competent authorities in the context of the prudential supervision which is exercised throughout the business of the insurance undertaking. (13) They are therefore imposed ex post, that is to say following the approval of that undertaking or, as appropriate, following the approval of the proposed acquisition of a qualifying holding. Article 15(4) of Directive 92/49, as amended, in fact refers, as an example of ‘appropriate measures’, to ‘sanctions’ against directors and managers. The purpose of assessing a proposed acquisition is not, however, to penalise a behaviour; it is a matter of supervising structures.
24. The wording of Articles 15, 15a and 15b of Directive 92/49, as amended, does not therefore permit the inference that a conditional approval option exists. I note, moreover, that the proposal from the ECB, which wished to amend the text of that directive in order to provide for such an option, was not taken up. (14)
25. Should it be concluded from this that the Member States may not make provision for a conditional approval option? The interested parties agree on a negative response, with the exception of GCO. According to GCO, Directive 2007/44, as recital 6 in the preamble thereto indicates, introduces ‘maximum’ harmonisation, and the Member States are not therefore authorised to adopt a measure not provided for by that directive. (15) Such a position cannot, however, in my view, be adopted in so far as Article 15a(7) of Directive 92/49, as amended, prohibits the adoption only of ‘requirements … that are more stringent’ than Directive 2007/44. The conditional approval of a proposed acquisition, which is not provided for by Directive 92/49, as amended, cannot be considered to be stricter than opposition to such a proposal, which is provided for by that directive.
2. The ‘requirements … that are more stringent’ the imposition of which is prohibited by Directive 2007/44
26. Article 15a(7) of Directive 92/49, as amended, prohibits the Member States from imposing ‘requirements for the notification to and approval by the competent authorities … that are more stringent than those set out in this Directive’. Recital 6 in the preamble to Directive 2007/44 states that the harmonisation is ‘maximum’ and stipulates that it prohibits the Member States from ‘laying down stricter rules’.
27. What is a ‘more stringent requirement’? In my view, in the light of the objective pursued by Directive 2007/44, it is a national measure which impedes or makes more difficult the acquisition of a qualifying holding in an insurance undertaking established in another Member State by requiring the proposed acquirer to comply with procedural obligations not provided for in Directive 92/49, as amended.
28. Recital 13 in the preamble to Directive 2007/44 states that its ‘objective …’ is ‘the establishment of harmonised procedural rules and assessment criteria throughout the Community’. Thus, it aims to increase the transparency of both the assessment criteria and the assessment procedure, as indicated in recital 2 in the preamble thereto, which states that ‘[a] clarification of the criteria and the process of prudential assessment is needed to provide the necessary legal certainty, clarity and predictability’. In this regard, the Commission notes, in the explanatory memorandum to its proposal for a directive, that ‘[u]ndue interference by regulators’ risks frustrating cross-border consolidations and rendering them impractical. (16) The abusive use of prudential assessment procedures had in fact given rise to actions for failure to fulfil obligations against Member States which opposed the acquisition of a holding in national banks. (17)
29. As regards that objective, a ‘more stringent requirement’ would be a national measure which, in violation of Article 15b(4) of Directive 92/49, as amended, required the proposed acquirer to furnish information that was not relevant to the assessment of the proposed acquisition (for example, on its market shares) or asked it for information that was not strictly necessary for that assessment in the light of the proposed acquisition in question. Another ‘more stringent requirement’ would be a national measure which, in violation of Article 15a(2) and (3) of Directive 92/49, as amended, permitted the competent authorities to interrupt the assessment period indefinitely in order to seek additional information from the proposed acquirer.
30. In the present case, Article 3:104 of the Wft provides for the option to attach conditions to the declaration of no objection provided for in Article 3:100 thereof. It is true that, as the representative of the DNB explained at the hearing, failure to fulfil the conditions has no effect on the validity of the declaration of no objection: it does not entail the automatic annulment of that declaration and the prior situation is restored only if the DNB withdraws the declaration of no objection. None the less, Article 3:104 of the Wft remains a conditional approval option since the conditions are mandatory and failure to fulfil them leads in the last resort to withdrawal of the declaration of no objection. This provision is in fact a ‘requirement’ not provided for in Directive 92/49, as amended, within the meaning of Article 15a(7) of that directive. In effect, it requires the proposed acquirer to fulfil procedural obligations not provided for in Directive 92/49, as amended, (furnishing of additional information, execution of conditions). However, I doubt that those procedural obligations can be considered to be ‘more stringent’ than those provided for by Directive 92/49, as amended, since the execution of commitments is not ‘more stringent’ for the proposed acquirer than giving up the acquisition, which is the consequence of an opposition decision expressly provided for, in this case, by Directive 2007/44.
31. Consequently, neither Article 15a(7) of Directive 92/49, as amended, nor any other provision of that directive prohibits the Member States from providing for a conditional approval option. In the absence of any EU rules on the matter, the Member States are free to determine the detailed procedural rules used in order to ensure the protection of the right which the proposed acquirer derives from Directive 92/49, as amended, namely the right to have its proposed acquisition approved by the competent authorities provided that it can guarantee the ‘sound and prudent operations’ of the insurance undertaking. However, the detailed procedural rules laid down in national law must be no less favourable than those governing similar domestic situations (principle of equivalence) and must not render practically impossible or excessively difficult the exercise of the rights conferred by EU law (principle of effectiveness). (18)
32. None the less, before moving on to examine whether the Wft complies with the principles of equivalence and effectiveness, I believe it necessary to respond to GCO’s argument that I referred to above, (19) namely that the ‘maximum’ character of the harmonisation introduced by Directive 2007/44 prohibits the Member States from adopting not only ‘more stringent’ measures but any measure not laid down in that directive, provided that that measure falls within the scope of that directive. I do not in fact consider tenable the view that, in adopting Directive 2007/44, the EU legislature pre-empted the competence of the Member States to legislate in the sphere of shared competence comprising the internal market in insurance. (20) I would stress that the question of interest to us here (conditional approval) concerns not the harmonisation of provisions of substantive law (the assessment criteria for a proposed acquisition) but the harmonisation of procedural provisions. In accordance with the principle of sincere cooperation laid down in Article 4(3) TEU, the implementation of EU law is in principle carried out in accordance with national procedures and by national authorities. It therefore appears to me that, if the EU legislator had intended to remove all regulatory competence from the Member States in a field in which they specifically hold a freedom of action that the Court has described as ‘autonomy’, (21) it would have expressly provided, in Article 15a(7) of Directive 92/49, as amended, that the Member States might not impose ‘other requirements’ than those provided for by that directive instead of confining itself to prohibiting them from imposing ‘requirements … that are more stringent’. (22)
33. However, even assuming that Directive 2007/44 deprived the Member States of any regulatory competence, it can have deprived them of that competence only in so far as the national measure in question falls within its scope. It appears to me that, although Directive 2007/44 indisputably introduces ‘maximum’ harmonisation, it does not introduce exhaustive harmonisation. In particular, it says nothing about the approval decision, whether conditional or not. A national measure providing for a conditional approval option therefore falls outside its scope and the Member States are free to make such provision. I shall therefore, in the alternative, briefly explain how it is that Directive 2007/44 does not introduce the exhaustive harmonisation of the procedure.
3. The non-exhaustive character of the harmonisation of the assessment procedure
34. Although, and I shall return to this, Directive 2007/44 introduces the exhaustive harmonisation of the assessment criteria, by contrast it does not introduce exhaustive harmonisation of the assessment procedure.
35. In this regard, the Commission, without expressing a view on the exhaustive character of the harmonisation, observes that Directive 2007/44 leaves the Member States with a certain degree of flexibility. It appears to me in fact that the recitals in the preamble to Directive 2007/44 leave the Member States free to determine certain detailed procedural rules. They allow them to provide for a pre-notification procedure (recital 7), to seek (or to accept) additional information, even after the expiry of the period of 50 working days provided for that purpose by that directive (recital 7) and to inform the proposed acquirer not only, as required by that directive, of opposition decisions, but also of a ‘positive assessment’ (recital 5). ‘Maximum’ harmonisation does not therefore apply to all of the assessment procedure.
36. In particular, the provision of information on the ‘positive assessment’ which recital 5 in the preamble to Directive 2007/44 leaves the Member States free to provide for may be understood both as the simple approval of the proposed acquisition and as its conditional approval, the latter being more ‘positive’ for the proposed acquirer than opposition. It is difficult to see how the proposed acquirer could be informed of the conditional approval other than in writing, that is to say in the form of a decision. Otherwise, how would it become aware of the precise content of the conditions which it must fulfil? Accordingly, by recognising the competent authorities’ option to inform the proposed acquirer of the ‘positive assessment’ of the acquisition, recital 5 in the preamble to Directive 2007/44 recognises that the Member States may authorise their competent authorities to adopt a formal approval decision, in any event where conditions are attached to the approval. (23)
37. Directive 2007/44 did not therefore introduce the exhaustive harmonisation of the assessment procedure. In particular, it did not harmonise the act by which the competent authorities close the procedure where it has resulted in a ‘positive assessment’. As the DNB and the Italian Government point out, the harmonisation does not relate to the act of administrative law by which the competent authorities bring the procedure to an end. Consequently, even assuming that the Court considers, wrongly in my view, that Directive 2007/44 prohibits the Member States from adopting not only ‘more stringent’ measures but any measure not provided for by Directive 92/49, as amended, it does not prohibit them from providing for a conditional approval option. Such an option is in fact outside the scope of that directive.
4. Compliance with the principle of effectiveness
38. The national measure by which a Member State provides for a conditional approval option falls under its procedural autonomy. Accordingly, when exercising that autonomy, that Member State must comply with the principles of equivalence and effectiveness.
39. Only the principle of effectiveness is of interest to us here.
40. However, I do not see how the adoption of a conditional approval decision would make the exercise of the rights that the proposed acquirer derives from Directive 2007/44 excessively difficult. In fact, that directive confers on the proposed acquirer the right to take a qualifying holding in an insurance undertaking only if the proposed acquisition satisfies the criteria of Article 15b(1) of Directive 92/49, as amended. However, the object of the conditions is precisely to ensure compliance with those criteria. They can have no other object because the list of criteria in Article 15b(1) of Directive 92/49, as amended, is exhaustive.
41. Article 15b(2) of Directive 92/49, as amended, provides that the competent authorities ‘may oppose the proposed acquisition only if there are reasonable grounds for doing so on the basis of the criteria set out in paragraph 1’. (24) Moreover, Article 15b(3) of Directive 92/49, as amended, cannot be read a contrario as authorising the Member States to define criteria other than those listed in that paragraph 1 where they do not relate to the level of holding to be acquired. In fact, recital 3 in the preamble to Directive 2007/44 states that the list set out by that directive is ‘a limited set of … assessment criteria’. Finally, the intention to draw up an exhaustive list emerges from the preparatory work. The Commission’s proposal indicates that ‘[t]he amended Directives provide for a closed list of criteria to assess the suitability of the acquirer’. (25) The Member States cannot therefore define criteria not provided for in Article 15b(1) of Directive 92/49, as amended. The interested parties are, moreover, in agreement on that point (at least those which have expressed an opinion on the matter).
42. Accordingly, to make fulfilment of the criteria laid down by Directive 92/49, as amended, the condition for approval does not amount to restricting the right that the proposed acquirer derives from that directive but, to the contrary, consists in giving its full expression to that right, in compliance with the limits which that directive itself imposes on that right, namely compliance with the criteria which it lays down. As the DNB points out, the possibility of attaching conditions to the approval works in favour of the effectiveness of prudential supervision.
43. In the present case, and although it is a matter exclusively for the national court to interpret domestic law, (26) it appears to me that the national legislature indeed provided that the conditions could have no object other than compliance with the five assessment criteria set out in Article 15b(1) of Directive 92/49, as amended. Indeed, Article 3:104 of the Wft provides that ‘the DNB may attach to the declaration of no objection … requirements or conditions having regard to the interests’ that Article 3:100 of the Wft aims to protect. The wording of that Article 3:100 of the Wft, namely that ‘the [DNB is] to issue a declaration of no objection … unless’ one of the five the criteria is not fulfilled, appears to me to indicate that those criteria are exhaustive. (27) Furthermore, that Article 3:100 seems to me to have faithfully reproduced the criteria of that Article 15b(1). (28) It is true that the transposition of Directive 2007/44 was delayed and the Kingdom of the Netherlands, for that reason, was found guilty of failure to fulfil obligations. (29) Accordingly, Article 3:100 of the Wft, in the version applicable at the material time, did not refer to the criteria in Article 15b(1) of Directive 92/49, as amended. However, in so far as the referring court has indicated its intention to interpret that provision in the light of Directive 2007/44, the delayed transposition does not have the effect of authorising the DNB to specify conditions with an object other than fulfilment of one of the five criteria listed above.
44. As regards the question whether the Member States may authorise their competent authorities to impose conditions unilaterally on the proposed acquirer and not simply authorise them to accept the conditions proposed by that acquirer, the answer is, in my view, in the affirmative.
45. It is true that the reference, in recital 3 in the preamble to Directive 2007/44, to the ‘commitments made’ by the proposed acquirer suggests a voluntary action on the part of that acquirer, in particular since Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the ‘Mergers Regulation’) (30) also uses the term ‘commitments’ with regard to remedies proposed by the parties for the operation of the notified concentration. (31) However, I do not see how the unilateral imposition of conditions would in practice make the exercise of the right that the proposed acquirer derives from Directive 2007/44 excessively difficult, provided that the conditions allow fulfilment of the criteria in Article 15b(1) of Directive 92/49, as amended, and only of those criteria.
46. Before moving on to examine the second question referred for a preliminary ruling, we must still examine whether the Wft complies with the TFEU. It is true that the referring court did not ask the Court to rule on this point. None the less it appears to me that, in order to provide that Court with a useful reply, (32) it is necessary to examine it. Directive 2007/44 does not in fact introduce exhaustive harmonisation of the assessment procedure. However, it is only where there is exhaustive harmonisation that the national measure is assessed in the light of the directive alone. (33) Where there is no exhaustive harmonisation, its conformity with the TFEU must be verified. Moreover, this point is tackled, albeit indirectly, in the written observations of the Estonian, French and Italian Governments, (34) and a question was put to the Commission agent on this matter during the hearing.
5. The compliance of the Wft with Articles 49 TFEU and 63 TFEU
47. Although the national measure in question is intended to apply only to holdings permitting the exercise of a definite influence over the undertaking, it must be assessed in the light of Article 49 TFEU. If it is intended to apply to any holding, even a minority holding, it must be assessed in the light of Articles 49 TFEU and 63 TFEU. (35) In the present case, it seems, although this does not appear clearly from the documentation, that the Wft is intended to apply both to holdings that confer a definite influence and to those that do not. The Wft must therefore be examined in the light of Article 63 TFEU and Article 49 TFEU.
a) Compliance with Article 63 TFEU
48. Article 3:104 of the Wft, which provides for a conditional approval option, constitutes a restriction on the free movement of capital. (36) In effect, a national measure which imposes the obligation to fulfil the conditions laid down by the competent authorities inhibits or renders less attractive the acquisition of a qualifying holding.
49. It appears to me, however, that such a restriction may be justified by an overriding reason in the public interest. Rather than having recourse to consumer protection, credit insurance, which is at issue in the present case, also targets professionals, and so I propose that the Court should recognise as an overriding reason in the public interest the guarantee of the stability and security of the assets administered by an insurance undertaking, along the lines of the judgments in Commission v Poland and VBV — Vorsorgekasse, (37) in which the Court ruled that the need to guarantee the stability and security of the assets administered by, respectively, an undertaking for collective investment and a pension fund, in particular by the adoption of prudential rules, were imperative reasons of public interest.
50. In the present case, the ‘interests’ that the conditions imposed under Article 3:104 of the Wft aim to protect are identical to the criteria in Article 15b(1) of Directive 92/49, as amended, which aim to ensure the ‘sound and prudent management’ of the insurance undertaking, which consists above all in guaranteeing the stability of its assets. The Wft is therefore appropriate for the objective pursued.
51. As regards its proportionality, in my view this gives rise to two questions.
52. First, it is a matter of ascertaining whether it is necessary to impose conditions a priori, in the context of prudential approval, rather than imposing them a posteriori, in the context of prudential supervision, when a difficulty arises. In my view, the answer to this question is in the affirmative. The criteria set out in Article 15b(1) of Directive 92/49, as amended, appear to me to be the subject, as appropriate, of both conditions and prudential supervision measures. For example, it would be absurd, if the insurance undertaking had financial difficulties on the day when the proposed acquisition was approved, not to impose upon it immediately, in the form of conditions, obligations in that respect. It must equally be possible for it to be the subject, subsequently, of prudential supervision measures aiming to ensure its financial stability, as provided for in recital 4 in the preamble to Directive 2007/44, which states that ‘[t]he prudential assessment … should not … supersede the requirements of on-going prudential supervision’.
53. Second, it should be ensured that, as the Court requires in relation to prior authorisation regimes (the Wft indeed makes provision for a prior authorisation system in the context of which conditions are imposed), the imposition of conditions complies with ‘objective, non-discriminatory criteria which are known in advance’ and that any conditional approval decision may be subject to a legal remedy. (38) As regards the legal remedy, I note that Directive 2007/44 requires reasons to be stated only for an opposition decision. (39) The courts cannot, however, conduct a genuine review of the conditions if no reasons are stated for the conditional approval decision. It therefore appears to me that the competent authorities are obliged, in the case of conditional approval, to adopt a written decision with a statement of reasons. (40) In the present case, Article 3:100 of the Wft lays down objective, non-discriminatory criteria corresponding to those introduced by Directive 2007/44. It is, however, a matter for the referring court to assess their foreseeability in respect of the proposed acquirer, taking account of the delayed transposition of that directive. Moreover, the decisions of the DNB are clearly open to legal remedy. It is, however, for the referring court to ensure that the decisions in question are accompanied by an adequate statement of reasons to enable GCO to exercise its right to a legal remedy in full knowledge of the arguments it may raise.
54. Article 3:104 of the Wft, which provides for a conditional approval option, therefore in my view constitutes a restriction on the free movement of capital which may be justified by the general interest in safeguarding the stability and security of the assets administered by an insurance undertaking. It is a matter for the referring court to verify that such a restriction is proportionate. It is for that court, first, to examine whether, in the light of the delayed transposition of Directive 2007/44, the assessment criteria were sufficiently foreseeable for GCO and, second, to verify that the DNB decisions in question are accompanied by an adequate statement of reasons to enable GCO to exercise its right to an effective legal remedy.
b) Compliance with Article 49 TFEU
55. In accordance with settled case-law, in so far as the national measures at issue entail restrictions on freedom of establishment, such restrictions are a direct consequence of the obstacles to the free movement of capital considered above, to which they are inextricably linked. (41)
56. Article 3:104 of the Wft also therefore constitutes a restriction on the freedom of establishment. That restriction is, however, like the restriction on the free movement of capital, capable of being justified by the general interest in safeguarding the stability and security of the assets administered by an insurance undertaking. It is, however, a matter for the referring judge to conduct the verifications referred to in point 54 of this Opinion.
B – The second question
57. By its second question the referring court asks the Court of Justice whether the competent authorities may impose conditions that are not necessary for the approval of the proposed acquisition, that is to say conditions which do not have the object of satisfying one of the five criteria set out in Article 15b(1) of Directive 92/49, as amended.
58. The answer to this question is in the negative. As I have stated above, (42) the Member States may not add new criteria to that list and the competent national authorities may not impose conditions that do not satisfy one of those criteria, as they are transposed into national law.
59. Moreover, I note that, as the Commission observed during the hearing, the conditions must not only be necessary to satisfy one of the assessment criteria but also be proportionate, that is to say not go beyond what is required to meet those criteria. Although the referring court does not ask the Court of Justice whether the conditions must be proportionate, the later must, in my view, examine this question, which follows from the question as to the necessity of the conditions.
60. In fact, on the one hand, although Directive 2007/44 provides for compliance with the principle of proportionality only in respect of the information that the proposed acquirer must provide together with the notification, (43) the CEIOPS Guidelines indicate that, as regards the reputation of the proposed acquirer, that acquirer must satisfy stricter requirements where, in particular, it is a question of exercising influence rather than acquiring a minority holding. (44) It follows from this that the conditions must be stricter where influence is to be exercised.
61. On the other hand, the principal of proportionality is a general principle of EU law which the Member States are required to observe where the national rules in question fall within the scope of EU law. (45) It is therefore for the competent authorities and the national courts to verify whether the conditions are not only necessary but also proportionate.
62. Finally, I note that, during the hearing, GCO stated that it had been ‘surprised’ by the adoption of the conditional approval decision. It is true that Directive 92/49, as amended, makes no reference to the right to a hearing, not even in the case of opposition to the proposed acquisition. However, observance of the right to a hearing, which is an integral part of the rights of the defence, a general principle of EU law, guarantees every person the opportunity to make known his views effectively during an administrative procedure and before the adoption of any decision liable to affect his interests adversely. (46) The authorities of the Member States are subject to that obligation when they take decisions which fall within the scope of EU law, even though the EU legislation applicable does not expressly provide for such a procedural requirement. (47) Consequently, the competent authorities are under an obligation to inform the proposed acquirer of their intention to impose conditions and to give it the opportunity to submit observations on the matter before the conditional approval decision is adopted. (48)
63. It is therefore a matter for the national courts to verify whether GCO had the opportunity to submit observations before the adoption of the DNB decisions.
C – The third question
64. By its third question, the referring court asks the Court of Justice whether the competent authorities may impose a condition relating to corporate governance, that is to say whether such a condition aims to satisfy one of the criteria laid down in Article 15b(1) of Directive 92/49, as amended. In the present case, we may recall, the DNB required that at least half of the members of the supervisory boards of ATNV and ACINV, including the chairs, should be independent of the shareholders.
65. The Commission considers that the DNB could not impose a condition relating to corporate governance because that condition is not attached to any of the criteria in Article 15b(1) of Directive 92/49, as amended, not even subparagraph (d). The other parties are in agreement on recognising that a condition may relate to the governance of an undertaking.
66. The Commission’s position cannot, in my view, be upheld. A condition relating to the governance of the undertaking targeted by the proposed acquisition seems to me in effect to correspond to the criterion set out in Article 15b(1)(d) of Directive 92/49, as amended.
67. That criterion provides that the competent authorities are to ensure the ‘suitability’ of the undertaking to ‘comply and continue to comply’ with its prudential obligations, ‘in particular, whether the group of which it will become a part has a structure that makes it possible to exercise effective supervision’. The reference to the group structure was introduced on a proposal of the ECB, which explains it as follows: ‘it should be ensured that the effective supervision of a target institution cannot be hampered by the group of which the target institution would form part as a result of the proposed acquisition having an insufficiently transparent structure’. (49) The protection required is therefore against the undue influence of the proposed acquirer.
68. It is a matter for the referring court to determine the proportionality of the condition referred to in point 64 above. The Court none the less has the competence to provide it with all the criteria for the interpretation of EU law. (50) In this regard, I note that the Dutch system provides for a dual company management structure, in which separate bodies exercise the functions of company management and supervision of that management. At the hearing, the representative of the DNB stated that the condition mentioned in paragraph 64 above concerned the supervisory bodies of ATNV and ACINV. A condition aimed at ensuring the independence of the supervisory body of the undertaking targeted by the proposed acquisition appears to me to be appropriate to preclude the undue influence of the proposed acquirer. If, given its weight among the shareholders in the target undertaking, the proposed acquirer was in a position to appoint the majority of the members of the management bodies, there would be nothing to prevent it taking decisions contrary to the ‘sound and prudent management’ required by Article 15b(1) of Directive 92/49, as amended, for example regarding dividend payments. (51) I note, however, that the CEIOPS Guidelines refer, in the context of the criterion laid down in Article 15b(1)(d) of Directive 92/49, as amended, to the possibility of imposing conditions relating to the governance of an undertaking. (52)
69. As regards the proportionality of the condition imposed on GCO, the referring court will have to take account of GCO’s weight among the shareholders in ATNV and ACINV, to which a number of parties referred during the hearing. It will also have to take account of the fact that the condition imposed by the DNB relates to the composition, not of the ATNV and ACINV management body but of the supervisory body. These two elements argue in favour of the proportionate character of the condition imposed on GCO. As for the requirement that the chairs of the supervisory boards should also be independent of the shareholders, it appears to me that the national court will have to appraise its proportionality in the light of national company law and the powers it confers on the chair of the supervisory board.
V – Conclusion
70. In the light of all the foregoing considerations, I suggest that the Court reply as follows to the questions referred by the College van Beroep voor het bedrijfsleven for a preliminary ruling:
(1) Articles 15, 15a and 15b of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (‘Third Non-life Insurance Directive’), as amended by Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007, must be interpreted as meaning that they do not prohibit the Member States from authorising their competent authorities to attach conditions to the approval of the proposed acquisition of a qualifying holding in an insurance undertaking. The Member States are free to authorise their competent authorities not only to accept the conditions proposed by the proposed acquirer but also unilaterally to impose conditions on it.
(2) Article 15b(1) of Directive 92/49, as amended by Directive 2007/44, must be interpreted as meaning that it prohibits the competent authorities from laying down conditions that are not necessary, that is to say which do not aim to satisfy one of the assessment criteria defined by that provision. The general principle of proportionality prohibits the competent authorities from imposing conditions that are not proportionate to the satisfaction of those criteria.
(3) The general principle of the rights of the defence imposes on the competent authorities the obligation to give a hearing to the proposed acquirer prior to the adoption of the conditional approval decision.
(4) Article 15b(1)(d) of Directive 92/49, as amended by Directive 2007/44, must be interpreted as meaning that it authorises the competent authorities to adopt a condition relating to the governance of the target undertaking. It is a matter for the national courts to verify the necessity and the proportionality of such a condition in the light of the weight of the principal shareholder in the capital of the target undertaking, of the management or supervisory function exercised by the body to which the condition relates and of the powers that national law confers on the chair of that body.
(5) The national measure providing for a conditional approval option constitutes a restriction on the free movement of capital and the freedom of establishment contrary to Articles 49 TFEU and 63 TFEU. It is, however, capable of being justified by the general interest in safeguarding the stability and security of the assets administered by an insurance undertaking. It is for the referring court to verify, first, that the conditions are necessary for the satisfaction of that objective and, second, that the conditions are proportionate. In order to assess the proportionality of the conditional approval decision, the referring court must ensure that it fulfils objective, non-discriminatory criteria that are known in advance and that it may be the subject of an effective legal remedy. Such a review must in particular take account of the delayed transposition and of its impact on the foreseeable character of the conditions, as well as the existence of an adequate statement of reasons for the approval decision, which is alone capable of permitting the proposed acquirer to exercise its right to a legal remedy.