14.3.2013

Official Journal of the European Union

C 75/13

JUDGMENT OF THE COURT

of 22 November 2012

in Case E-17/11

Aresbank SA v Landsbankinn hf., Fjármálaeftirlitið (the Financial Supervisory Authority) and the Icelandic State

(Directive 94/19/EC — Directive 2000/12/EC — Directive 2006/48/EC — Admissibility — National legislation adopting provisions of EEA law to regulate purely internal situations — Notion of deposit — Interbank loans — Mutual recognition of an authorisation for the taking up and pursuit of the business of credit institutions — Applicability of decisions of the EEA Joint Committee)

2013/C 75/07

In Case E-17/11 Aresbank SA v Landsbankinn hf., Fjármálaeftirlitið (the Financial Supervisory Authority) and the Icelandic State — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Hæstiréttur Íslands (Supreme Court of Iceland), concerning the interpretation of the term deposit in Article 1(1) of Council Directive 94/19/EC on deposit-guarantee schemes, the Court, composed of Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur) and Páll Hreinsson, Judges, gave judgment on 22 November 2012, the operative part of which is as follows:

Article 1(1) of Council Directive 94/19/EC on deposit-guarantee schemes is to be interpreted as meaning that funds which a lending credit institution delivers to a borrowing credit institution, and which must be repaid on a predetermined date, together with interest which has been specially negotiated, are to be regarded as a deposit within the meaning of that provision. This applies even though the funds are not placed in a special account in the name of the lending credit institution, the borrowing credit institution has not issued any special documents recording the receipt of the funds, has not paid premiums in respect of the funds to the Depositors’ and Investors’ Guarantee Fund, and the funds have not been entered as a deposit in the books of the borrowing credit institution.

However, such funds transferred from one credit institution to another, pursuant to a loan agreement, constitute deposits not covered by the guarantee schemes provided for in Directive 94/19/EC. Such funds are thus not eligible for repayment under that Directive. Therefore, a distinction can be made between a functional definition of eligible deposits under Directive 94/19/EC, which is based on Article 1(1) read in light of Article 2, and a technical definition, which also includes deposits not covered by the guarantee schemes provided for in Directive 94/19/EC and, thus, not eligible for repayment. It is for the national court to ascertain whether a technical or a functional definition of deposit is to be applied under national law for the purposes of the present case.

For the purpose of determining whether a loan between two credit institutions in the EEA is a deposit within the meaning of Article 1(1) of Directive 94/19/EC, it is of no significance that the home State of the borrowing bank has availed itself of the authority established in Article 7(2) of Directive 94/19/EC to exclude deposits by financial institutions from deposit guarantee.

Where a credit institution lending funds on the interbank market is authorised to accept deposits from the general public, it is of no significance for the qualification of an interbank loan by this institution to another credit institution as a deposit within the meaning of Article 1(1) of Directive 94/19/EC that it does not accept such deposits but finances its operations by means of contributions from its owner and through the issue of financial instruments, subsequently re-lending that money on the interbank market, unless the authorisation of the institution to take up and pursue the business of a credit institution has been withdrawn by the competent authority.