CE, Sect.
Case Société Caixa Bank France

6 November 2002

(…) Caixa Bank France requests the Conseil d’Etat:

(1) to quash the decision of 16 April 2002 by which the Banking Commission forbade it to contract with residents new euro-denominated agreements for interest-bearing sight deposits and ordered it to rescind the interest clauses currently included in such agreements;

(2) (….)

(3) (…)

(…)

Given that (1) Caixa Bank France, whose registered office is in French territory, and which is a subsidiary of Caixa Holding, a company whose registered office is in Spain, notified the banking Commission of its intention to introduce into the market an interest-bearing sight deposit; (2) by a decision dated 16 April 2002 the Commission, after having put in motion the disciplinary procedure set out in article 613-21 of the Monetary and Financial Code, on the one hand forbade Caixa Bank France to contract with residents new interest-bearing sight deposits, and on the other hand ordered it to rescind the interest clauses of agreements already entered into; and (3) the company appeals against this decision;

Given that, contrary to what is pleaded by the appellant company, the Banking Commission has replied with sufficient grounds to the claim raised against it in defence, based on the claim that the prohibition on remunerating sight deposits breached the principal of equality in that it created a difference of treatment between French citizens, resident or not on French territory;

Given that, in order to reject the argument pleaded before it, to the effect that the prohibition on the remuneration of sight deposits is contrary, in particular, to Article 43 of the Treaty creating the European Community, the Banking Commission held that, Caixa Bank France being a French company, that provision could not apply;

Given however that (1) Article 43 of the Treaty provides that “ restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State are forbidden; and (2) this prohibition extends “to restrictions on the creation of agencies, branches or subsidiaries by nationals of one Member state established in the territory of another Member State” and that freedom of establishment “carries with it access to and the exercise of, professional activities as well as the creation and management of businesses, and, in particular, of companies (…) in the conditions laid down by the country of establishment for its own nationals (…)”;

Given that (1) the very object of Article 43 of the treaty is to allow a company whose registered office is in one Member State to create a subsidiary in another Member State in order to carry on a business there; (2) this being so, the Banking Commission wrongly interpreted that provision when it held that it could not be pleaded by Caixa Bank France; (3) it flows however from the very terms of its decision that, in sanctioning Caixa Bank France, the Banking Commission also based itself on the fact that the applicable rules of Community law, and in particular Article 43 of the Treaty setting up the European Community, did not have the effect of preventing Member States from prohibiting the remuneration of sight deposits; (4) it therefore also examines the behaviour of the company in relation to this provision, in this way looking at things from the point of view of the latter, according to which the provisions of the Treaty on freedom of establishment applied to its situation; and (5) in the light of this, the incorrect finding of the Commission on the application of Article 43 of the Treaty can be considered as having no effect on the meaning of the decision under attack, and therefore superabundant;

Given that the appellant company argued before the Banking Commission and continues to do so before the Conseil d’Etat that the prohibition imposed on banking houses against the remuneration of sight deposits of residents is contrary to the provisions of the Treaty on freedom of establishment since (1) the ability to agree to the remuneration of sight deposits is part of the activity of taking of deposits or other reimbursable funds which may be freely carried on by banks, and (2) this prohibition is excessive and without justification;

Given that (1) pursuant to the provisions of Article L. 312-3 of the Monetary and Financial Code: “Nonobstant any contrary provision, it is forbidden for any bank which receives from the public funds in accounts payable at sight or within less than five years to pay, in any way whatsoever, a remuneration on such funds which is superior to that fixed by a regulation of the Committee on Banking and Financial Regulation or by the Minister in Charge of the Economy”; and (2) pursuant to the decision no. 86-13 of the Committee on Banking and Financial Regulation dated 14 March 1986, the remuneration of sights deposits is forbidden;

Given that (1) since Directive 2000/12/CE dated 20 March 2000 of the European Parliament and the Council is silent on the subject of the remuneration of sight deposits and the rules applicable to subsidiaries of banks, the argument advanced by the appellant company based on a breach of Article 43 of the Treaty raises the question whether the prohibition imposed by French regulations against the remuneration of sight accounts should or should not be regarded as a hindrance to the freedom of establishment, and, in the affirmative, whether such hindrance can be justified by reasons of general interest; and (2) it is appropriate also to reflect on the nature of the reasons of this type which might be validly called upon;

Given that (1) these questions are decisive for the resolution of the case before the Conseil d’Etat; (2) they raise considerable difficulty; (3) it is therefore appropriate to refer the matter to the Court of Justice of the European Communities pursuant to Article 234 of the Treaty, and, until the Court has given its finding, to defer a decision on the appeal of Caixa Bank France;

DECIDES:

Article 1: A decision on the application of Caixa Bank France is deferred until the European Court of Justice provides answers to the following questions:

1 – Given the silence of Directive 2000/12/CE dated 20 March 2000 of the European Parliament and the Council, does the prohibition imposed by a Member State on banking houses properly established in its territory against the remuneration of sight deposits and other reimbursable deposits amount to a hindrance on free establishment?

2 – In the affirmative, what is the type of reasons of general interest which might possibly be invoked to justify such hindrance?

Article 2 (…)

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