Case C‑235/14

Safe Interenvíos SA

v

Liberbank SA and Others

(Request for a preliminary ruling from the Audiencia Provincial de Barcelona)

‛Reference for a preliminary ruling — Prevention of the use of the financial system for the purpose of money laundering and terrorist financing — Directive 2005/60/EC — Customer due diligence measures — Directive 2007/64/EC — Payment services in the internal market’

Summary — Judgment of the Court (Fifth Chamber), 10 March 2016

1. Approximation of laws — Prevention of the use of the financial system for the purpose of money laundering and terrorist financing — Directive 2005/60 — Customer due diligence obligations of financial institutions — National legislation authorising enhanced due diligence measures to be adopted in respect of institutions or persons covered by the directive when there is a suspicion of money laundering or terrorist financing — Lawfulness

   (European Parliament and Council Directive 2005/60, as amended by Directive 2010/78, Arts 5, 7, 11(1) and 13)

2. Approximation of laws — Prevention of the use of the financial system for the purpose of money laundering and terrorist financing — Directive 2005/60 — Minimum level of harmonisation

   (European Parliament and Council Directive 2005/60, as amended by Directive 2010/78)

3. Approximation of laws — Prevention of the use of the financial system for the purpose of money laundering and terrorist financing — Directive 2005/60 — Customer due diligence obligations of financial institutions — Powers of those institutions to adopt due diligence measures — Limits — Observance of the supervisory role reserved for the competent authorities

   (European Parliament and Council Directives 2005/60, as amended by Directive 2010/78, Arts 8(2), 9(5), and 37, and 2007/64, as amended by Directive 2009/111, Art. 21)

4. Freedom to provide services — Restrictions — Prohibition — Scope

   (Arts 56 TFEU and 57 TFEU)

5. Freedom to provide services — Restrictions — Prevention of the use of the financial system for the purpose of money laundering and terrorist financing — Directive 2005/60 — Customer due diligence obligations of financial institutions — National legislation authorising a credit institution to apply enhanced due diligence measures in respect of a payment institution — Lawfulness — Condition — Observance of the principle of proportionality

   (European Parliament and Council Directive 2005/60, as amended by Directive 2010/78, Arts 5 and 13)

6. Freedom to provide services — Freedom of establishment — Restrictions — Justification on the basis of overriding reasons in the general interest — Assessment in the light of general principles of law — Measures incompatible with fundamental rights not permissible

   (Arts 52 TFEU and 62 TFEU)

7. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Scope

   (Art. 267 TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court, Art. 94)

8. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute — Application of the provisions interpreted by the Court

   (Art. 267 TFEU)

1.  Articles 5, 7, 11(1) and 13 of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing as amended by Directive 2010/78 must be interpreted as not precluding national legislation which, first, authorises the application of standard customer due diligence measures in so far as the customers are financial institutions whose compliance with due diligence measures is supervised when there is a suspicion of money laundering or terrorist financing within the meaning of Article 7(c) of that directive and, secondly, requires the institutions and persons covered by the directive to apply, on a risk-sensitive basis, enhanced customer due diligence measures in situations which by their nature can present a higher risk of money laundering or terrorist financing within the meaning of Article 13(1) of the directive, such as that of the transfer of funds.

   Notwithstanding the derogation in Article 11(1) of Directive 2005/60, Articles 7 and 13 of the directive require the Member States to ensure that the institutions and persons covered by the directive apply, in situations concerning customers that are themselves institutions or persons covered by the directive, the standard customer due diligence measures pursuant to Article 7(c) of the directive and enhanced customer due diligence measures pursuant to Article 13 thereof in situations which by their nature can present a higher risk of money laundering or terrorist financing. Furthermore, even in the absence of such a suspicion or such a risk, Article 5 of Directive 2005/60 allows the Member States to adopt or retain in force stricter provisions where those provisions seek to strengthen the fight against money laundering and terrorist financing.

   (see paras 75, 80, operative part 1)

2.  See the text of the decision.

   (see paras 76, 79)

3.  Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing as amended by Directive 2010/78 must be interpreted as meaning that the institutions and persons covered by that directive may not compromise the task of supervising payment institutions with which the competent authorities are entrusted pursuant to Article 21 of Directive 2007/64 on payment services in the internal market as amended by Directive 2009/111 and may not take the place of those authorities. Directive 2005/60 must be interpreted as meaning that, whilst a financial institution may, in performing the supervisory obligation which it owes in respect of its customers, take account of the due diligence measures applied by a payment institution in respect of its own customers, all the due diligence measures that it adopts must be appropriate to the risk of money laundering and terrorist financing.

   Indeed, in accordance with Article 8(2) of Directive 2005/60, the institutions and persons covered by that directive must be able to demonstrate to the competent authorities mentioned in Article 37 of the directive that the extent of the measures adopted in performing their customer due diligence obligation — whose extent may be determined on a risk-sensitive basis depending on the type of customer, business relationship, product or transaction — is appropriate in view of the risks of money laundering and terrorist financing. Such measures must have a concrete link with the risk of money laundering and terrorist financing and be proportionate to that risk. It follows that a measure such as the breaking off of a business relationship, provided for in the first subparagraph of Article 9(5) of Directive 2005/60, should, in the light of Article 8(2) of that directive, not be adopted in the absence of sufficient information connected with the risk of money laundering and terrorist financing.

   (see paras 86, 87, 93, operative part 2)

4.  See the text of the decision.

   (see paras 98, 100)

5.  Articles 5 and 13 of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing as amended by Directive 2010/78 must be interpreted as meaning that national legislation adopted pursuant either to the discretion which Article 13 of that directive grants the Member States or to the power in Article 5 of the directive must be compatible with EU law, in particular the fundamental freedoms guaranteed by the Treaties. Whilst such national legislation designed to combat money laundering or terrorist financing pursues a legitimate aim capable of justifying a restriction on the fundamental freedoms and whilst to presume that transfers of funds by an institution covered by that directive to States other than the State in which it is established always present a higher risk of money laundering or terrorist financing is appropriate for securing the attainment of that aim, that legislation exceeds, however, what is necessary for the purpose of achieving the aim which it pursues in so far as the presumption which it establishes applies to any transfer of funds, without providing for the possibility of rebutting the presumption in the case of transfers of funds not objectively presenting such a risk.

   Furthermore, the assessment of the risk of money laundering or terrorist financing must take into account, at least, all relevant facts capable of demonstrating the risk of one of the types of conduct that are considered to constitute money laundering or terrorist financing.

   (see paras 108, 111, operative part 3)

6.  Where a Member State relies on overriding reasons in the general interest in order to justify national rules which are liable to obstruct the exercise of the freedom to provide services, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights now guaranteed by the Charter of Fundamental Rights of the European Union. Thus, those national rules can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court.

   (see para. 109)

7.  See the text of the decision.

   (see paras 114-116)

8.  See the text of the decision.

   (see para. 119)