1.

This reference for a preliminary ruling from the Cour de cassation (Belgium) seeks an interpretation of Article 45 of Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS). ( 2 ) The national courts asks whether, in circumstances in which the units of a UCITS have been marketed in a Member State other than that where it is situated, Article 45 of Directive 85/611 is to be interpreted as meaning that the concept of ‘payments to unit-holders’ also refers to the delivery of certificates for units (‘unit certificates’) to unit-holders by the representative of the UCITS in that other Member State (‘the representative’).

2.

Answering this question requires the Court to look into two issues. First, can the holder of units (the ‘unit-holder’) in a unit trust that were marketed in a Member State other than that in which the unit trust is situated rely on Article 45 of Directive 85/611 vis-à-vis the representative designated by the unit trust to provide the ‘facilities’ referred to in Article 45 of Directive 85/611 in the Member State of marketing, when there is no contractual link related to that unit trust between the representative and the unit-holder? Secondly, is Article 45 of Directive 85/611 to be interpreted as meaning that the concept of ‘payments to unit-holders’ also refers to the delivery to unit-holders, by the same representative, of unit certificates?

3.

Directive 85/611 reflects relatively unexplored terrain for the Court. There is case-law, especially relating to value added tax, where the directive has been of importance, but to my knowledge there is no case where the Court has interpreted the directive’s substantive provisions. ( 3 )

4.

As one of the first Community measures relating to securities markets, the purpose of Directive 85/611 is to provide a Community framework for the provision of services relating to UCITS based on the principles of home country control and mutual recognition without, however, striving at complete harmonization of the national legal provisions applicable to UCITS. ( 4 ) According to an early commentary on Directive 85/611, it ‘showed the course to be followed in order to complete the eagerly awaited single market in financial services’. ( 5 )

5.

The approach of Directive 85/611 towards cross-border provision of UCITS services is explained in its fifth recital, which is worded as follows: ‘[w]hereas the application of these common rules is a sufficient guarantee to permit collective investment undertakings situated in Member States, subject to the applicable provisions relating to capital movements, to market their units in other Member States without those Member States’ being able to subject those undertakings or their units to any provision whatsoever other than provisions which, in those states, do not fall within the field covered by this Directive; whereas, nevertheless, if a collective investment undertaking situated in one Member State markets its units in a different Member State it must take all necessary steps to ensure that unit-holders in that other Member State can exercise their financial rights there with ease and are provided with the necessary information’ (my emphasis).

6.

Directive 85/611 is applicable to common investment funds managed by management companies, unit trusts (which are included in ‘common funds’ for the purposes of Directive 85/611) and investment companies (Article 1(3)). ( 6 ) Of particular importance is the fact that UCITS are defined by both their objective, which consists of collective investment in transferable securities and/or in other liquid financial assets of capital from the general public on the basis of the principle of risk-spreading, and by their essential operational principle, which is based on the obligation on the UCITS, at the request of unit-holders, to re-purchase or redeem the units out of the assets of the relevant UCITS (Article 1(2)).

7.

Two provisions of Directive 85/611 are of particular importance to the case to hand. Pursuant to Article 44, a UCITS which markets its units in another Member State must comply with the laws, regulations and administrative provisions in force in that State which do not fall within the field governed by the directive (paragraph 1). However, any UCITS may advertise its units in the Member State in which they are marketed. It must comply with the provisions governing advertising in that State (paragraph 2).

8.

Article 45 of Directive 85/611, the core provision in this preliminary reference, states that in ‘the case referred to in Article 44, the UCITS must, inter alia, in accordance with the laws, regulations and administrative provisions in force in the Member State of marketing, take the measures necessary to ensure that facilities are available in that State for making payments to unit-holders, re-purchasing or redeeming units and making available the information which UCITS are obliged to provide’.

9.

According to the order for reference, Article 130 of Belgian Law of 20 July 2004 on certain forms of collective management of investment portfolios (formerly the Law of 4 December 1990 on financial transactions and financial markets, Article 138) ( 7 ) provides that the investment undertaking must designate an organisation to ensure distribution to unit holders, the sale or repurchase of units and the making available of the information which the collective investment undertaking is obliged to provide. The order for reference further states that this legislation transposes Directive 85/611.

10.

In January 1996 Mr P. Gruslin, who is domiciled in Malaysia and has a residence in Belgium, and who is the applicant in the main proceedings, invested in an investment fund governed by Luxembourg law called the Citiportfolios fund. The Citiportfolios fund is managed by the company Citiportfolios, and its depository bank is Citibank Luxembourg. The latter two are established under Luxembourg law.

11.

The prospectus of the Citiportfolios fund was distributed in Belgium by Citibank Belgium, now Beobank SA/NV (‘Beobank’), the respondent in the main proceedings. Citibank Belgium was designated by Citiportfolios in accordance with the second paragraph of Article 138 of the Belgian law of 4 December 1990 on financial transactions and financial markets to supply the services referred to in Article 45 of Directive 85/611. According to the written observations of Mr Gruslin, he obtained the prospectus from the Citigold service of Citibank Belgium in Waterloo.

12.

However, in order to perform the investment, Mr Gruslin subscribed directly in Luxembourg with Citibank Luxembourg. Citibank Belgium was not involved as a subscription domicile, entered into no contract or other legal arrangement with the applicant, and received no commission in that capacity. Even so, it executed a bank transfer to Citiportfolios for the payment of the subscription.

13.

On 9 September 1996, Citibank Luxembourg terminated, with effect as of 17 September 1996, all its accounts and business relationships with Mr Gruslin and asked him to withdraw all funds and securities in his accounts. Citibank Luxembourg notified Mr Gruslin that in the absence of any instructions regarding the transaction to be carried out in order to liquidate the units in the Citiportfolios fund, those units would be registered in his name in the issuer’s register of units. On 14 October 1996, having received no instructions from the applicant, Citibank Luxembourg registered those units.

14.

In December 1996, Mr Gruslin requested the delivery by Citibank Belgium of all his bearer unit certificates ( 8 ) to prove ownership of the units purchased in the Citiportfolios fund. Citibank Belgium replied that since the units had been purchased from Citibank Luxembourg it had no record of them and instructed him to refer the matter directly to Citibank Luxembourg. Citibank Belgium stated at the hearing, however, that they passed Mr Gruslin’s request on to Citibank Luxembourg.

15.

Due to the failure of Citibank Belgium to supply the unit certificates requested, Mr Gruslin initiated various legal proceedings before the Belgian courts in order to obtain, inter alia, an order against Citibank Belgium to deliver him the unit-certificates referred to in the prospectus of the Citiportfolios fund. Mr Gruslin relied, in support of his case, on Directive 85/611.

16.

On 11 January 2011 the Cour d’appel de Bruxelles rejected the claim as it could neither establish a contractual relationship between Mr Gruslin and Citibank Belgium, nor a breach of a non-contractual duty on the part of Citibank Belgium as regards the distribution of the prospectus for the Citiportfolios fund. Mr Gruslin appealed against this judgment before the Belgian Cour de cassation.

17.

The Cour de cassation decided to stay proceedings and to refer the following question to the Court of Justice of the European Union for a preliminary ruling:

‘Is Article 45 of Directive [85/611] to be interpreted as meaning that the concept of “payments to unit-holders” also refers to the delivery to unit-holders of certificates for registered units?’

18.

Mr Gruslin, Beobank, the Governments of the Kingdom of Belgium and the Czech Republic, along with the Commission, deposited written observations. Representatives of Mr Gruslin, Beobank and the Commission participated at the hearing held on 27 November 2013.

19.

In its written observations the Commission expressed doubts as to whether the question referred by the national court was admissible. It did so on the basis that the applicant acquired the units of the fund directly in the Member State in which the UCITS was situated, in this case Luxembourg. The Commission is concerned that the applicability of Article 45 of Directive 85/611 may depend on the unit-holder acquiring units via the representative of the UCITS situated in the Member State where the units were marketed. The Commission has queried whether, in the absence of such a link, the question referred is admissible.

20.

However, at the hearing the Commission took a different position. It argued that no prior legal relationship had to exist between the unit-holder and the representative before the obligations contained in Article 45 of Directive 85/611 were triggered.

21.

It should be remembered that, in proceedings under Article 267 TFEU, it is solely for the national court to determine both the need for a preliminary ruling and the relevance of the questions which it submits to the Court. Therefore, the Court is in principle bound to give a ruling where the questions submitted concern the interpretation of EU law. ( 9 ) Hence, questions on the interpretation of EU law referred by a national court enjoy a presumption of relevance. The Court may refuse to rule on a question referred for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( 10 )

22.

In the present case, the question referred for preliminary ruling, which concerns the interpretation of a provision of EU law, namely Article 45 of Directive 85/611, is not unrelated to the facts or actual purpose of the main proceedings. In fact, Article 45 of Directive 85/611 forms part of Section VIII of the directive, which is entitled ‘Special provisions applicable to UCITS which market their units in Member States other than those in which they are situated.’ Citiportfolios fund was situated in Luxembourg and its units were marketed in Belgium through distribution of its prospectus and brochures by Citibank Belgium. Therefore, the relevance of the Directive 85/611 to the case at hand cannot be ruled out.

23.

As a consequence, I am of the opinion that the question referred for a preliminary ruling is admissible.

24.

In order to answer the preliminary question, the scope of Article 45 of the Directive 85/611 has to be clarified, as read in the light of recital 5 thereof. Before I consider this issue, there is one background point that is of central relevance to answering this question. That is, whether Directive 85/611 regulates how unit-holders legitimise ownership of units in a fund in relation to the UCITS, its representative in the Member State in which the units are marketed, and third parties.

25.

How ownership of units is recorded and proven is, of course, of particular importance in the unit-holders dealings with their management company, here the Luxembourg management company Citiportfolios, and its depository bank, here Citibank Luxembourg. Absent proof of ownership, no ownership rights can be exercised. Similarly the issue of legitimation of ownership of units arises in relation to the fund representatives, and in relation to third parties in general for transaction purposes, when units have been marketed in Member States other than that in which the fund is situated.

26.

Regarding this last aspect, it is sufficient to observe that Directive 85/611 is based on the principle that unit-holders realize the economic value of their investment by requiring re-purchase or redemption of their units by the UCITS. Therefore the means of establishment of title to the units for transaction purposes is of lesser relevance, even if Directive 85/611 does not in any way preclude issuing the units and or the certificates representing them as negotiable instruments that can be sold to third parties.

27.

It was mentioned at the hearing by the representative of Beobank that legitimation of the position of a unit-holder can be done in a variety of ways. It may depend on the holder being registered in the register of unit holders of the fund, or ownership can be proven by possession of transferable bearer certificates, the presentation of which allows for the exercise of rights. I note, however, that proof of ownership in units in unit trusts through presentation of bearer certificates is becoming increasingly rare. Ownership of units in a unit trust can equally be proven by nominative certificates, which cannot be transferred with effect towards the management company, or the units can be dematerialized, which means that financial service providers keep accounts where the units are registered.

28.

This self-evidently does not pose a problem if the unit-holder has acquired the relevant units in a fund situated in a Member State other than that in which they were marketed, via the representative in that Member State, as referred to in Article 45 of Directive 85/611. ( 11 ) However, it may pose a problem if the unit-holder has not subscribed to the units through the representative, but directly from the management company in the Member State in which the fund is situated. This is the very problem arising in the case to hand; because the units were acquired by Mr Gruslin from Citibank Luxembourg and not Citibank Belgium.

29.

In my opinion the means of proving ownership in a unit trust depend on both the fund rules of the unit trust, which according to Article 4(2) of Directive 85/611 must be approved by the competent authorities of the Member State where it is situated, and the relevant national law, which in the present case is Luxembourg law. This is not harmonised by EU law.

30.

Indeed, it follows from Schedule A, point 1.10. in the Annex to Directive 85/611 that fund rules and national legislation must regulate this question. Otherwise unit holders would have no practical means of exercising their rights under Directive 85/611. However, in my opinion, there is no basis on which this or any other part of the directive could be interpreted as setting out mandatory requirements concerning the means through which ownership in unit trusts is established or recorded in Member States. ( 12 )

31.

Here I disagree with the Commission, in so far as its representative at the hearing contended that Directive 85/611 imposes an obligation on the Member States to require that unit-holders are provided with unit certificates so that they can legitimize themselves towards representatives of management companies in the Member State of marketing with whom they have had no prior legal relationship. This, the Commission argued, was necessary from the point of view of free movement of capital.

32.

In my opinion the words ‘original securities or certificates providing evidence of title; entry in a register or in an account’ in point 1.10 of Schedule A in the Annex to Directive 85/611 identify four different methods for proving title to units. The first two, namely unit certificates issued for the bearer or a named person, are relevant for systems where physical securities are (still) used, while the last two, namely entry in a unit-holders’ register or on a securities account, are relevant for a dematerialized system.

33.

It is inconceivable that the Community legislator would have intended, in 1985, to make obligatory the use of physical unit certificates, when at the time Member States were already heading towards completely dematerialized systems for the handling of securities. ( 13 ) I recall that legislation underpinning the French Sicovam system had been adopted by 1980. ( 14 ) Moreover, in the 1980’s many national systems for securities handling and clearing relied on so called Central Securities’ Depositories (often referred to as CSDs) which safeguarded physical securities. These securities were not normally physically moved to settle the transactions, and the title to them was based on book-entries on securities accounts held by financial institutions. This seems to have been the situation with respect to Mr Gruslin’s bearer unit certificates, which represented his units before their conversion into registered units.

34.

I also disagree with the Commission’s arguments to the effect that the principle of free movement of capital means that unit-holders are to be provided with unit certificates, and by means of which they can legitimize themselves as owners of the relevant units towards financial service providers in Member States other than that in which the fund is situated. In fact, free movement of capital is more possible now than ever before, having been enhanced by modern digitalized methods of securities trading, clearing and ownership registering, without a need to have recourse to obsolete, unsafe and expensive methods based on physical certificates.

35.

To this I would add the technological advances brought by the internet. Not only is financial information easier to access across borders than ever before, the internet has also facilitated cross-border payments and investment transactions. International money transfers can now be done quickly and easily, at low cost, via the internet. The submissions made by the Commission with respect to the need for (physical) unit certificates are contrary to these contemporary developments. On the contrary, today the services of the local representatives of UCITS are less important for investors than in the 1980s.

36.

Therefore, it is up to the Member States and individual UCITS to decide whether the title to the units is evidenced by means of bearer unit certificates, registered unit certificates, by entry in the unit holders’ register or by entry in a securities account.

37.

The representative in the Member State of marketing of a UCITS is legally required, and in my opinion entitled, to ensure that anyone with whom they have dealings is, in reality, a unit-holder. In other words, in the absence of a relevant unit-trust related contractual link between the unit-holder and the representative, the unit-holder must legitimize himself towards the representative by using the means established in this respect in the fund rules and applicable national law. The management company could hardly authorize its local representative to make payments and execute redemption or re-purchase units vis-à-vis a unit-holder without such proof, or alternatively a request by the unit-holder to the effect that he wishes the management company to authorise the local representative to deliver the payments to him. ( 15 )

38.

The applicability of Articles 44 and 45 of Directive 85/611 depends on the units of the fund having been marketed in a Member State other than the State in which the unit trust is situated.

39.

Marketing in Article 44(1) of Directive 85/611 means, in my opinion, that subscription or purchase of units is enabled in the Member State of marketing without investors having to take any measures outside the territory of that Member State. If the marketing is successful and leads to subscription, the management company must have a local representative acting for it for the purposes mentioned in Article 45 of Directive 85/611, and towards whom the unit-holders can turn. In the case to hand, it is undisputed that such a relationship existed between Citiportfolios (Luxembourg) and Citibank Belgium.

40.

For a correct understanding of the scope of Article 45 of Directive 85/611 it is necessary to look at the role of this provision in the general scheme of the directive, bearing in mind that the directive intends to enable free provision of cross-border services in this sector.

41.

Here it is useful to again quote the commentary on the directive published by the Commission in 1988. It is stated there that at ‘all events, a Member State where a UCITS markets its units would not be able, [under any] circumstances, to use the rule [in Article 45] as a basis for obliging it to have a legal representative on its territory, since that would amount to making the right of a UCITS to market its units in a Member State other than the one in which it is situated conditional on its having an establishment there, which would be contrary to the concept of the provision of services as established in the Treaty. Consequently, to avoid all ambiguity, the requirement in the original version of the Commission’s proposal that a UCITS must have a financial service in a Member State where it markets its units, even though it is generally accepted that a financial service is merely an administrative service and, unlike a legal representative, cannot be regarded as the equivalent of an establishment.’ ( 16 )

42.

Moreover, fields of host Member State responsibility (such as facilities for making payments, redemption or re-purchase of units of a UCITS under Article 45 of Directive 85/611) are strictly limited in order to avoid obstacles to free provision of services between the Member States. Thus, in my opinion, Article 45 of Directive 85/611 cannot be interpreted broadly.

43.

I also note that information rights of the unit-holders are meticulously defined in Directive 85/611. Here I refer in particular to section VI of Directive 85/611 containing provisions on the prospectus, periodical reports and other information.

44.

However, and contrary to the submissions of the Government of Belgium, issue of unit certificates, even certificates for a named unit-holder, cannot be regarded as performance of an information obligation under Directive 85/611. It is an act that can be required or permitted by the fund rules and national legislation in order to establish or prove title to the units.

45.

As pointed out by Beobank at the hearing, Section VI of Directive 85/611 creates, inter alia, an obligation to publish a prospectus, an annual report and a half yearly report, and also to regularly publish the price of issue, sale, repurchase or redemption of its units. All this information reflects what the Community legislature considered to be necessary to allow an investor to make a well-founded decision to make an investment or indeed divest. On the other hand, Section VI of Directive 85/611 has nothing to with proof of ownership of units.

46.

In my opinion, nor is issue or delivery of unit certificates included in the notion of ‘payments to unit-holders’ under Article 45 of Directive 85/611. Payment here means performance of a monetary obligation such as paying any interest or dividends derived from the units, or in the case of redemption or re-purchase of units, the sums payable to the unit-holder.

47.

As was explained by Beobank at the hearing, the representative in the Member State of marketing is merely providing a financial service that can be qualified as an agent responsible for payments, in the sense that it delivers sums payable from the fund to local unit-holders. Representatives wait until they are paid by the fund before they make any payments relating to the units. Moreover, they deliver the information the unit-holders are entitled to receive and convey requests for redemption or repurchase to the depository of the fund, and pay the price of the units to the unit-holder, only once these have been received from the fund.

48.

In other words, Article 45 of Directive 85/611 imposes no free-standing legal obligations on representatives responsible for performing the functions appearing in Article 45, at least in the absence of the cooperation of the fund, and more precisely the management company or the depository as the case may be. Any other interpretation would conflict with the principle that there is a trans-border financial service provided by the UCITS from the Member State in which the UCITS is situated to the Member State of marketing. Thus the local representatives cannot be required to make payments to unit-holders, re-purchase or redeem units, or even make available the information which UCITS are obliged to provide if the fund does not do so. Inevitably, therefore, an Article 45 representative cannot be obliged to issue or deliver unit certificates.

49.

In conclusion, it is impossible to infer from the words ‘payments to unit-holders’ in Article 45 of Directive 85/611 an obligation on the local representative of a UCITS, in the Member State of marketing, to deliver unit certificates to unit-holders.

50.

I therefore propose the following answer to the request for a preliminary ruling from the Cour de cassation (Belgium):

Article 45 of Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) is to be interpreted as meaning that the concept of ‘payments to unit-holders’ does not refer to the delivery to unit-holders of certificates for registered units.