Case C-212/11

Jyske Bank Gibraltar Ltd

v

Administración del Estado

(Request for a preliminary ruling from the Tribunal Supremo)

‛Prevention of the use of the financial system for the purposes of money laundering and terrorist financing — Directive 2005/60/EC — Article 22(2) — Decision 2000/642/JHA — Requirement to report suspicious financial transactions applicable to credit institutions — Institution operating under the rules on the freedom to provide services — Identification of the national financial information unit responsible for the collection of information — Article 56 TFEU — Obstacle to freedom to provide services — Overriding requirements in the public interest — Proportionality’

Summary — Judgment of the Court (Third Chamber), 25 April 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the national court — Assessment of need for and relevance of the questions referred

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer

   (Art. 267 TFEU)

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant factors of EU law

   (Art. 267 TFEU)

4. Approximation of laws — Prevention of the use of the financial system for the purposes of money laundering and terrorist financing — Directive 2005/60 — Requirement to report suspicious financial transactions applicable to credit institutions — Institution operating under the rules on the freedom to provide services — Forwarding of information to the financial intelligence units of the Member State of origin

   (European Parliament and Council Directive 2005/60, Art. 22(2))

5. Approximation of laws — Prevention of the use of the financial system for the purposes of money laundering and terrorist financing — Directive 2005/60 — Requirement to report suspicious financial transactions applicable to credit institutions — National legislation requiring credit institutions carrying on their activities under the freedom to provide services in that Member State to communicate the necessary information directly to the financial intelligence units of that State — Lawfulness — Conditions — Obligation to ensure the effectiveness of Directive 2005/60 and Decision 2000/642

   (European Parliament and Council Directive 2005/60, Art. 22(2); Council Decision 2000/642)

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

   (Art. 56 TFEU)

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

   (European Parliament and Council Directive 2005/60)

8. Freedom to provide services — Restrictions — Prevention of the use of the financial system for the purposes of money laundering and terrorist financing — Directive 2005/60 — Requirement to report suspicious financial transactions applicable to credit institutions — National legislation requiring credit institutions carrying on their activities under the freedom to provide services in that Member State to communicate the necessary information directly to the financial intelligence units of that State — Lawfulness — Conditions — Pursuit of the aim of preventing money laundering and terrorist financing — Observance of the principle of proportionality — Determination by the national court

   (Art. 56 TFEU; European Parliament and Council Directive 2005/60)

1.  See the text of the decision.

   (see para. 33)

2.  See the text of the decision.

   (see para. 34)

3.  See the text of the decision.

   (see para. 38)

4.  Article 22(2) of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as meaning that the entities referred to must forward the requested information to the financial intelligence units of the Member State in whose territory they are situated, that is to say, in the case of operations performed under the rules on the freedom to provide services, to the financial intelligence units of the Member State of origin.

   (see para. 43)

5.  Article 22(2) of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as not precluding legislation of a Member State which requires credit institutions to communicate the information required for the purpose of combating money laundering and terrorist financing directly to the financial intelligence units of that Member State where the institutions carry out their activities in that State under the freedom to provide services, to the extent that that legislation does not compromise the effectiveness of that directive and of Decision 2000/642 concerning arrangements for cooperation between financial intelligence units of the Member States in respect of exchanging information.

   Such legislation must seek to strengthen, in compliance with EU law, the effectiveness of the fight against money laundering and terrorist financing. It cannot compromise the principles established by Directive 2005/60 concerning the reporting requirements on the part of entities subject to them, nor can it impair the effectiveness of existing forms of cooperation and exchange of information between the financial intelligence units, as provided for by Decision 2000/642, and cannot relieve credit institutions covered by Directive 2005/60 of their obligation to supply the required information to the financial intelligence units of the Member State in whose territory they are situated, in compliance with Article 22 of that directive. Likewise, such legislation does not infringe any provisions of Decision 2000/642 where its own financial intelligence unit is in no way exempted from its requirement to cooperate with the financial intelligence units of other Member States and, reciprocally, retains, unchanged, the right to require them to forward documents or information for the purpose of combating money laundering. Such legislation does not undermine the mechanism for cooperation between the financial intelligence units provided for by Decision 2000/642, but envisages, outside the context of the latter, a means for the financial intelligence unit of the Member State concerned to obtain directly information in the specific case of an activity carried out under the freedom to provide services in its territory.

   (see paras 49-51, 54-56, 85, operative part)

6.  See the text of the decision.

   (see paras 58, 59)

7.  See the text of the decision.

   (see paras 60, 61)

8.  Article 56 TFEU must be interpreted as not precluding legislation of a Member State which requires credit institutions to communicate the information required for the purpose of combating money laundering and terrorist financing directly to the financial intelligence units of that Member State where the institutions carry out their activities in that State under the freedom to provide services, if the latter is justified by overriding reasons in the public interest, secures the attainment of the aim in view and does not go beyond that which is necessary in order to attain it, and is applied in a non-discriminatory manner, which it is for the national court to ascertain taking account of the following considerations:

   —

   such legislation is appropriate to attain the aim of preventing money laundering and terrorist financing if it enables the Member State concerned effectively to supervise and suspend suspicious financial transactions concluded by credit institutions offering their services in the national territory and, if appropriate, to pursue and punish those responsible;

   —

   the obligation imposed by that legislation on credit institutions carrying out their activities under the freedom to provide services may constitute a proportionate measure in pursuit of that aim in the absence, at the time of the facts in the main proceedings, of any effective mechanism guaranteeing full and complete cooperation between financial intelligence units. (see para. 85, operative part)

Case C-212/11

Jyske Bank Gibraltar Ltd

v

Administración del Estado

(Request for a preliminary ruling from the Tribunal Supremo)

‛Prevention of the use of the financial system for the purposes of money laundering and terrorist financing — Directive 2005/60/EC — Article 22(2) — Decision 2000/642/JHA — Requirement to report suspicious financial transactions applicable to credit institutions — Institution operating under the rules on the freedom to provide services — Identification of the national financial information unit responsible for the collection of information — Article 56 TFEU — Obstacle to freedom to provide services — Overriding requirements in the public interest — Proportionality’

Summary — Judgment of the Court (Third Chamber), 25 April 2013

1. Questions referred for a preliminary ruling — Jurisdiction of the national court — Assessment of need for and relevance of the questions referred

   (Art. 267 TFEU)

2. Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Clearly irrelevant questions and hypothetical questions put in a context not permitting a useful answer

   (Art. 267 TFEU)

3. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant factors of EU law

   (Art. 267 TFEU)

4. Approximation of laws — Prevention of the use of the financial system for the purposes of money laundering and terrorist financing — Directive 2005/60 — Requirement to report suspicious financial transactions applicable to credit institutions — Institution operating under the rules on the freedom to provide services — Forwarding of information to the financial intelligence units of the Member State of origin

   (European Parliament and Council Directive 2005/60, Art. 22(2))

5. Approximation of laws — Prevention of the use of the financial system for the purposes of money laundering and terrorist financing — Directive 2005/60 — Requirement to report suspicious financial transactions applicable to credit institutions — National legislation requiring credit institutions carrying on their activities under the freedom to provide services in that Member State to communicate the necessary information directly to the financial intelligence units of that State — Lawfulness — Conditions — Obligation to ensure the effectiveness of Directive 2005/60 and Decision 2000/642

   (European Parliament and Council Directive 2005/60, Art. 22(2); Council Decision 2000/642)

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

   (Art. 56 TFEU)

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

   (European Parliament and Council Directive 2005/60)

8. Freedom to provide services — Restrictions — Prevention of the use of the financial system for the purposes of money laundering and terrorist financing — Directive 2005/60 — Requirement to report suspicious financial transactions applicable to credit institutions — National legislation requiring credit institutions carrying on their activities under the freedom to provide services in that Member State to communicate the necessary information directly to the financial intelligence units of that State — Lawfulness — Conditions — Pursuit of the aim of preventing money laundering and terrorist financing — Observance of the principle of proportionality — Determination by the national court

   (Art. 56 TFEU; European Parliament and Council Directive 2005/60)

1.  See the text of the decision.

   (see para. 33)

2.  See the text of the decision.

   (see para. 34)

3.  See the text of the decision.

   (see para. 38)

4.  Article 22(2) of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as meaning that the entities referred to must forward the requested information to the financial intelligence units of the Member State in whose territory they are situated, that is to say, in the case of operations performed under the rules on the freedom to provide services, to the financial intelligence units of the Member State of origin.

   (see para. 43)

5.  Article 22(2) of Directive 2005/60 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing must be interpreted as not precluding legislation of a Member State which requires credit institutions to communicate the information required for the purpose of combating money laundering and terrorist financing directly to the financial intelligence units of that Member State where the institutions carry out their activities in that State under the freedom to provide services, to the extent that that legislation does not compromise the effectiveness of that directive and of Decision 2000/642 concerning arrangements for cooperation between financial intelligence units of the Member States in respect of exchanging information.

   Such legislation must seek to strengthen, in compliance with EU law, the effectiveness of the fight against money laundering and terrorist financing. It cannot compromise the principles established by Directive 2005/60 concerning the reporting requirements on the part of entities subject to them, nor can it impair the effectiveness of existing forms of cooperation and exchange of information between the financial intelligence units, as provided for by Decision 2000/642, and cannot relieve credit institutions covered by Directive 2005/60 of their obligation to supply the required information to the financial intelligence units of the Member State in whose territory they are situated, in compliance with Article 22 of that directive. Likewise, such legislation does not infringe any provisions of Decision 2000/642 where its own financial intelligence unit is in no way exempted from its requirement to cooperate with the financial intelligence units of other Member States and, reciprocally, retains, unchanged, the right to require them to forward documents or information for the purpose of combating money laundering. Such legislation does not undermine the mechanism for cooperation between the financial intelligence units provided for by Decision 2000/642, but envisages, outside the context of the latter, a means for the financial intelligence unit of the Member State concerned to obtain directly information in the specific case of an activity carried out under the freedom to provide services in its territory.

   (see paras 49-51, 54-56, 85, operative part)

6.  See the text of the decision.

   (see paras 58, 59)

7.  See the text of the decision.

   (see paras 60, 61)

8.  Article 56 TFEU must be interpreted as not precluding legislation of a Member State which requires credit institutions to communicate the information required for the purpose of combating money laundering and terrorist financing directly to the financial intelligence units of that Member State where the institutions carry out their activities in that State under the freedom to provide services, if the latter is justified by overriding reasons in the public interest, secures the attainment of the aim in view and does not go beyond that which is necessary in order to attain it, and is applied in a non-discriminatory manner, which it is for the national court to ascertain taking account of the following considerations:

   —

   such legislation is appropriate to attain the aim of preventing money laundering and terrorist financing if it enables the Member State concerned effectively to supervise and suspend suspicious financial transactions concluded by credit institutions offering their services in the national territory and, if appropriate, to pursue and punish those responsible;

   —

   the obligation imposed by that legislation on credit institutions carrying out their activities under the freedom to provide services may constitute a proportionate measure in pursuit of that aim in the absence, at the time of the facts in the main proceedings, of any effective mechanism guaranteeing full and complete cooperation between financial intelligence units. (see para. 85, operative part)