C-267/86
ECLI:EU:C:1988:215
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OPINION OF MR MANCINI — CASE 267/86
O P I N I O N OF M R ADVOCATE GENERAL MANCINI delivered o n 28 April 1988 *
Mr President, defendant — namely the aforesaid royal Members of the Court, decree — were contrary to certain provisions of Community law.
1. By interlocutory judgment of 28 October 1986 the Vredegerecht (Local Court) for The questions submitted by the national the Canton of Beveren-Waas asked the court seek in substance to ascertain Court to interpret the provisions of the EEC (a) whether Article 85 et seq. of the EEC Treaty on competition, establishment, the Treaty are to be interpreted as precluding free movement of services and the national legislation which, incorporating prevention of discriminatory taxation in previous agreements between banks, makes relation to the Belgian rules concerning the the benefit of certain tax exemptions subject interest payable on savings deposits. to the application of uniform conditions governing the interest payable on savings deposits and thereby restricts competition, and (b) whether Articles 59 to 66 and 95 of the EEC Treaty are to be interpreted as precluding national legislation which makes Those rules are set out, in particular, in the the aforesaid benefit applicable only to Royal Decree of 29 December 1983, as savings deposits denominated in national amended by the Royal Decree of 13 March currency and held by banks established 1986, which provides for tax exemption on within the territory of the Member State interest up to an amount of BFR 50 000 concerned. only on savings deposits to which the rates laid down by law are applied. That relief is not therefore granted in respect of deposits made on more favourable terms. Mr Van Eycke, the Belgian Government and the Commission of the European Communities have submitted written obser- vations and presented oral argument at the These proceedings arose from an action hearing. brought against ASPA, a credit institution whose registered office is in Antwerp, by Mr Pascal Van Eycke, residing in Beveren-Waas. ASPA had refused to take a deposit from Mr Van Eycke on the more 2. The Belgian Government suggests, favourable conditions regarding interest recalling the Court's judgment of 16 rates that were in force before 13 March December 1981 in Case 244/80 Foglia v 1986. Mr Van Eycke therefore sought a Novello [1981] ECR 3045, that the Court declaration that such refusal was unlawful should disclaim jurisdiction. In its view, the and that the rules applied by the main proceedings are fictitious and were, in
* Translated from the Italian.
VAN EYCKE v ASPA
any event, instituted as a pretext, as is borne ECR 3001, paragraph 11 of the decision; out by seven factors: (a) the plaintiff's my emphasis). lawyer is a trainee in the chambers of the lawyer representing ASPA; (b) the parties have submitted 'joint conclusions' asking for the proceedings to be suspended and for a reference to be made to the Court of As for the other four factors referred to by Justice; (c) the parties chose by agreement the Belgian Government, I would point out the court of Beveren-Waas in preference to (a) that assessment of the relevance of the the court of Antwerp, which has territorial answer given by the Court to the main jurisdiction; (d) the dispute is devoid of action is a matter for the national court purpose since, apart from precluding the alone (judgment of 12 June 1986 in Joined grant of tax relief, the Decree of 13 March Cases 98, 162 and 258/85 Bertini v Regione 1986 does not prohibit ASPA from applying Lazio [1986] ECR 1885, paragraph 8 of more favourable terms to savings deposits; the decision); (b) that, as the Belgian (e) since the proceedings were instituted Government's representative has himself before a local court, the Belgian acknowledged, the proceedings in question Government was unable to put forward its took their usual course and, at least in this arguments in those proceedings; (f) in so case, he was given every opportunity to far as the Court's judgment would exert make his views known; and (c) that the fact pressure on the Treasury Minister, it would that a similar case is pending before another be inutiliter data; and (g) proceedings national court is wholly irrelevant to these instituted by a credit institution for the proceedings. annulment of the contested legislation are pending before the Belgian Council of State.
3. As the Court will recall, Question (a), in which I summarized and rephrased the first I am not swayed by that argument. In the two questions submitted by the national first place, it fails to take account of the fact court, asks the Court to establish whether that, unlike the situation which arose in the legislation of a Member State which Foglia v Novello, the problem raised by the makes a tax exemption conditional on the national court relates to its own national application of uniform interest rates to law and not to that of another Member savings deposits is contrary to the State. Secondly, the evidence adduced in Community rules of competition. support — I am referring in particular to the first three factors — does not demonstrate incontestably that the dispute in question is an artificial contrivance. On the contrary, as the Court has consistently held, it must be The plaintiff is in favour of an affirmative 'quite obvious that the interpretation of answer. In his view, the Decree of 13 March Community law sought [from the 1986 is contrary to Article 85 of the Treaty Court] . . . bears no relation to the actual because (a) it merely incorporates a nature of the case or to the subject-matter concerted practice amongst credit of the main action' (judgment of 16 June institutions rendering it enforceable erga 1981 in Case 126/80 Salonia v Poidomani omnes, (b) it has restrictive effects on and Giglio [1981] ECR 1563, paragraph 6 competition in so far as banks use the of the decision; judgment of 26 September interest rate on deposits in order to attract 1985 in Case 166/84 Thomasdünger v Ober- savings, and (c) it adversely affects intra- finanzdirektion Frankfurt am Main [1985] Community trade by hindering the efforts
OPINION OF MR MANCINI — CASE 267/86
of banks from other Member States to which Articles 104 and 105 of the Treaty penetrate the Belgian market. reserve to the Member States. In the absence of harmonizing provisions adopted by the Community, therefore, those measures cannot be regarded as incom- I wish to make a preliminary observation. patible with Community law even where There is no doubt that the banking sector is they involve, as is surely the case here, a subject to the rules of competition restriction of competition with regard to (judgment of 14 July 1981 in Case 172/80 savings deposits. Ziichner v Bayerische Vereinsbank [1981] ECR 2021, paragraphs 7 and 8 of the decision) and the fact that a restrictive measure was enacted by the State does not prevent its appraisal in the light of Article 85. Admittedly, that provision is addressed 4. I now come to Question (b) which in to undertakings and not to the Member substance reproduces the third question States; however, Article 5 of the EEC submitted by the Belgian court. It seeks to Treaty requires Member States to abstain ascertain whether the legislation of a from adopting or maintaining in force any Member State, which reserves the benefit of measures which could detract from the tax exemption to deposits denominated in effectiveness of the Treaty. Accordingly, in national currency and held at credit its judgment of 3 December 1987 in Case institutions operating within the territory of 136/86 (BNIC vAubert [1987] ECR 4789), the State concerned, is contrary to the rules paragraph 23 of the decision, the Court of primary legislation on establishment, examined national legislation which, as in the free movement of services and the this case, had incorporated intertrade prevention of discriminatory taxation. agreements that were alleged to be incom- patible with Article 85 (1).
Having said that, however, I would point The answer is simple. I would point out, in out that measures such as the one at issue, the first place, that the reference to Article to the same extent as operations relating to 59 et seq. is irrelevant since the liberalization the discount rate, pursue objectives of of capital movements — to which, according monetary policy or, more specifically, credit to Article 61 (2) of the Treaty, the liberali- policy. The grant of certain tax advantages zation of banking services is connected — in return for the restriction of the interest has not yet been implemented. Furthermore, rate affects the manner in which savers use I would point out that since money does not their money, the liquid assets of banks and constitute a 'product', the reference to the general level of interest rates applied. In Article 95 is also groundless (see the particular, recourse to such an incentive acts judgment of 23 November 1978 in Case as a brake on the rise of interest on deposits 7/78 Regina v Thompson [1978] ECR 2247, and consequently reduces interest on bank paragraph 25 of the decision). In any event, loans. the Commission has stated — without being successfully contradicted by the plaintiff — that, so far as the benefit in question is concerned, Belgium does not If those findings are correct, it seems clear discriminate between branches or subsi- to me that those measures relate to a matter diaries of national or foreign banks.
VAN EYCKE v ASPA
5. In the light of all the foregoing considerations, I suggest that the questions submitted to the Court of Justice by the Vredegerecht for the Canton of Beveren-Waas by interlocutory judgment of 28 October 1986 in the case pending before it between Pascal Van Eycke and ASPA N V should be answered as follows :
Community law as it now stands does not prohibit the Member States from adopting or maintaining in force legislation which makes the grant of certain tax advantages in respect of interest on savings deposits subject to the application of uniform conditions with regard to such interest.