CJEC, October 24, 1978, No 15-78

The court

1 By an order of 23 january 1978, which was received at the court on 13 february 1978, the oberlandesgericht koln, pursuant to article 177 of the eec treaty, referred to the court two questions on the interpretation of articles 59 and 60 of the treaty concerning the liberalization of the provision of services between member states, with reference to the application of certain provisions of german law, the object of which is to bar legal proceedings in respect of obligations arising out of certain speculative stock exchange time-bargains.

2 The facts giving rise to the action brought in the oberlandesgericht may be summarized as follows:

The plaintiff in the main action is a french bank having its registered office at strasbourg, which on the instructions of the defendant in the main action, a german national who at the time was resident in france, carried out orders on the paris stock exchange which were time-bargains in respect of the differences between the prices of transferable securities (differenzgeschafte). The credit or debit balance resulting from these speculative transactions was entered in a current account in conjunction with a credit which the bank had opened in favour of the party concerned. When the defendant took up his residence again in germany he had, as a result of the losses which he had incurred, a large overdraft with the bank which he refused to discharge. Since the societe generale alsacienne de banque had brought an action for recovery of the amount payable in the court having jurisdiction by reason of the debtor ' s residence, namely the landgericht bonn, that court, after analysing the items of the current account, rejected the part of the claim relating to the debit balance arising out of the time- bargains carried out on the instructions of the defendant. The landgericht was in fact of the opinion that under the law relating to stock exchanges and commodity markets and the german civil code (articles 762 and 764) this part of the obligations entered into by the defendant must be treated in the same way as debts arising out of a wagering contract and that as such it is not actionable. The oberlandesgericht before which the dispute was brought on appeal, in a first judgment given in default, upheld in substance the decision of the court of first instance. The appeal court takes the view that by virtue of the provisions of german law including those of private international law the recovery of a debt arising out of time-bargains of this kind cannot be actionable in germany, even if the debt in question was contracted abroad and assuming that it is valid under the law of the state where it arose. In fact the appeal court considers that in such a case legal action for the recovery of a debt of this kind is against german public policy. When the dispute was again brought before the appeal court by way of appeal against the judgment given in default it nevertheless looked into the question whether this conclusion, based on provisions of german law, might perhaps be modified by the provisions of community law relating to the liberalization of the provision of services. For the purpose of clearing up this doubt the court has referred for a preliminary ruling two questions worded as follows:

1. Properly interpreted, do articles 59 and 60 of the eec treaty exclude the objection under german law that a contract is an agreement to pay differences (differenzeinwand - articles 764 and 762 of the burgerliches gesetzbuch (civil code); articles 61, 58 and 50 of the borsengesetz (law relating to stock exchanges and commodity markets); bundesgerichtshof, neue juristische wochenschrift 75, 1600; 72, 382) in a case where a french bank is claiming, from a customer of german nationality, the repayment on the basis of french law of credit for time- bargains (agreements to pay differences), carried out on the paris stock exchange in accordance with an agreement?

2. Is it relevant for the answer to question 1 whether under german law the german customer had capacity in accordance with article 53 of the borsengesetz to enter into time-bargains?

3 The national court was right to accept that in a case of this kind the provisions of the eec treaty relating to the liberalization of the provision of services apply.

There is in fact no doubt that services such as those at issue which consist in a bank having orders carried out on a stock exchange and in current account transactions in conjunction with the opening of a credit constitute the provision of services within the meaning of the first paragraph of article 60 of the treaty which refers generically to all activities of a commercial character.

Furthermore the transactions in question cannot be regarded as services provided only within a member state, when the person in receipt of the services, before the termination of the contractual relations between the parties, has taken up residence in another member state, so that the requirement of the first paragraph of article 59 that liberalization measures provided for by the treaty must benefit all persons providing services ' ' who are established in a state of the community other than that of the person for whom the services are intended ' ' has been met.

This must in particular be the case if the subject-matter of the action consists, as it does in these proceedings, of the balance of a current account, the transactions on which cannot be regarded as completed before this balance has been discharged.

4 The applicability of the rules of community law relating to the liberalization of the provision of services having then been established it is appropriate in the first place to show how these provisions are to be applied to the question raised by the national court.

The principle underlying the second paragraph of article 60 is that the state in which the person for whom the services are intended resides must treat the person providing the services in the same way as it treats its own nationals.

For the purpose of implementing this principle of non-discrimination the general programme for the abolition of restrictions on freedom to provide services, adopted by the council on 18 december 1961 (official journal, english special edition january 1974, second series, ix. Resolutions of the council and of the representatives of the member states, p. 3) defined the restrictions to be eliminated pursuant to the treaty in the following terms:

' ' Any measures which, pursuant to any provision laid down by law, regulation or administrative action in a member state, or as a result of the application of such a provision, or of administrative practices, prohibits or hinders the person providing services in his pursuit of an activity as a self- employed person by treating him differently from nationals of the state concerned (title iii: restrictions, a., first paragraph).

Furthermore, any requirements imposed, pursuant to any provision laid down by law, regulation or administrative action or in consequence of any administrative practice, in respect of the provision of services are also to be regarded as restrictions where, although applicable irrespective of nationality, their effect is exclusively or principally to hinder the provision of services by foreign nationals (title iii: restrictions, a., third paragraph) ' '.

The question whether the legal concepts indicated by the above-mentioned german judgments might lead in law or in fact to discrimination against a person providing services established in another member state must be examined in the light of these provisions.

5 The fact that debts arising out of a wagering contract or other similar debts are not actionable cannot be regarded as discrimination against a person providing services established in another member state if the same limitation applies to any person providing services established within the territory of the same state whenever that person claims payments of a debt of the same kind, and this has not been disputed in the present case.

The refusal by a member state, for reasons founded on the social order to allow an action based on a claim of this kind, even if it was valid in another member state, to be brought by a financial institution established in that member state cannot therefore be regarded as contrary to community law, when the treaty, whilst it prohibits discrimination, does not impose any obligation to treat a foreigner providing services more favourably, with reference to his domestic law, than a person providing services established in the member state where the services have been provided.

6 Therefore the answer to the first question must be that articles 59 and 60 of the eec treaty do not affect the application of legislative provisions whereby a member state bars the recovery by legal action of certain debts, such as debts arising out of a wagering contract and similar debts, provided that such provisions are not applied in a discriminatory manner, either in law or in fact, compared with the way in which similar debts contracted within the territory of the member state in question are treated.

7 Having regard to this answer there is no need to answer the second question.

Costs

8 The costs incurred by the commission of the european communities, which submitted obervations to the court, are not recoverable.

As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the oberlandesgericht koln the decision as to costs is a matter for that court.

On those grounds,

The court

In answer to the questions referred to it by the oberlandesgericht koln by an order of 23 january 1978, hereby rules:

Articles 59 and 60 of the eec treaty do not affect the application of legislative provisions whereby a member state bars the recovery by legal action of certain debts, such as debts arising out of a wagering contract and similar debts, provided always that such provisions are not applied in a discriminatory manner, either in law or in fact, compared with the way in which similar debts contracted within the territory of the member state in question are treated.