Language of document : ECLI:EU:C:2013:697

Case C‑85/12

LBI hf

v

Kepler Capital Markets SA

and

Frédéric Giraux

(Request for a preliminary ruling from the la Cour de cassation (France))

(Reference for a preliminary ruling — Reorganisation and winding-up of credit institutions — Directive 2001/24/EC — Articles 3, 9 and 32 — National legislative act conferring on reorganisation measures the effects of winding-up proceedings — Legislative measure prohibiting or suspending any legal proceedings against a credit institution after the entry into force of a moratorium)

Summary — Judgment of the Court (Fifth Chamber), 24 October 2013

1.        Freedom of establishment — Freedom to provide services — Credit institutions — Reorganisation and winding-up of credit institutions — Directive 2001/24 — Scope –Mutual recognition of reorganisation measures and winding-up proceedings adopted by the administrative or judicial authorities — International banking and financial crisis — Legislative act conferring on reorganisation measures the effects of winding-up proceedings and taking effect only by means of judicial decisions — Included

(European Parliament and Council Directive 2001/24, Arts 3 and 9)

2.        Questions referred for a preliminary ruling — Admissibility — Conditions — Questions bearing no relation to the actual facts of the main action or its purpose

(Art. 267 TFEU)

3.        Freedom of establishment — Freedom to provide services — Credit institutions — Reorganisation and winding-up of credit institutions — Directive 2001/24 — National rules prohibiting or suspending any legal proceedings against a credit institution benefitting from a moratorium — Effects in regard to interim protective measures adopted in another Member State — Lawfulness

(European Parliament and Council Directive 2001/24, recital 30 and Art. 32)

1.        Articles 3 and 9 of Directive 2001/24 on the reorganisation and winding up of credit institutions must be interpreted as meaning that reorganisation or winding-up measures adopted by the legislature, which subject financial institutions under a moratorium to a scheme which has certain effects linked to winding-up proceedings, are to be regarded as measures adopted by an administrative or judicial authority for the purposes of those articles of Directive 2001/24, where those measures, in the form of transitional provisions, take effect only by means of judicial decisions granting a moratorium to a credit institution.

It is the reorganisation and winding-up measures decided by the administrative and judicial authorities of the home Member State which are the subject of recognition under Directive 2001/24, with the effects which the law of that Member State confers on them. Accordingly, the effects which reorganisation and winding-up measures taken by the administrative or judicial authorities of the home Member State may have in the other EU Member States are determined, in accordance with the second subparagraph of Article 3(2) and the second subparagraph of Article 9(1) of Directive 2001/24, by the law of the home Member State. Therefore, that directive does not prevent that Member State from amending, even with retroactive effect, the legal scheme applicable to such measures.

Furthermore, as is apparent from those provisions, in the context of the system established by Directive 2001/24, the reorganisation and winding-up measures of the home Member State are recognised without any further formalities. In particular, that directive does not make the recognition of reorganisation and winding-up measures subject to a condition that it be possible to bring an action against them. Similarly, according to the second subparagraph of Article 3(2), the host Member State may likewise not make that recognition subject to a condition of that type for which its national rules may provide.

(see paras 28, 30, 38, 40, 42, operative part 1)

2.        See the text of the decision.

(see paras 45, 46)

3.        Article 32 of Directive 2001/24 on the reorganisation and winding up of credit institutions must be interpreted as meaning that reorganisation or winding-up measures must be interpreted as not precluding a national provision relating to financial institutions which prohibited or suspended any legal action against a financial institution once it benefitted from a moratorium, from being effective in regard to interim protective measures, adopted in another Member State before the declaration of the moratorium. That provision constitutes an exception to the general rule that the effects of reorganisation and winding-up measures are governed by the law of the home Member State, and it must be interpreted strictly.

The scope of that provision is clarified by recital 30 in the preamble to Directive 2001/24, which makes a distinction between lawsuits pending and individual enforcement actions. Therefore it is necessary to distinguish, as regards determining the law applicable to the effects of reorganisation measures or winding-up proceedings, between lawsuits pending and individual enforcement actions arising from those lawsuits, the latter actions being subject, in accordance with the general rule established by Directive 2001/24, to the legislation of the home Member State. Accordingly, the words ‘lawsuits pending’ cover only proceedings on the substance.

As regards the interim protective measures, those measures, which divest a credit institution of the right to dispose freely of part of its assets pending settlement of the substance of a dispute with one of its creditors, constitute individual enforcement actions. It follows that such interim protective measures do not fall within Article 32 of Directive 2001/24 but are governed by the legislation of the home Member State as lex concursus.

(see paras 52-54, 56, 58, operative part 2)