CJEU, 4th chamber, June 25, 2015, No C-18/14

THE COURT (Fourth Chamber),

Judgment

1 This request for a preliminary ruling concerns the interpretation of Articles 15, 15a and 15b of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ 1992 L 228, p. 1), as amended by Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007 (OJ 1992 L 247, p. 1) ('Directive 92/49').

2 The request has been made in proceedings between CO Sociedad de Gestión y Participación SA, Depsa 96 SA, INOC SA, Corporación Catalana Occidente SA, La Previsión 96 SA, Grupo Catalana Occidente SA, Grupo Companía Espanola de Crédito y Caución SL, Atradius NV, Atradius Insurance Holding NV, and Mr J.M. Serra Farré, Ms M.A. Serra Farré and Ms J. Serra Farré ('CO Sociedad de Gestión y Participación and Others'), on the one hand, and De Nederlandsche Bank NV (Netherlands Central Bank, 'NCB'), on the other hand, concerning the requirements to which the latter subjected the approval of proposed acquisitions of the qualifying holding in the capital of Atradius NV ('ATNV').

Legal context

EU law

Directive 92/49

3 Recital 1 in the preamble to Directive 92/49 states as follows:

'Whereas it is necessary to complete the internal market in direct insurance other than life assurance from the point of view both of the right of establishment and of the freedom to provide services, to make it easier for insurance undertakings with head offices in the Community to cover risks situated within the Community'.

4 Article 1(g) of Directive 92/49 defines the concept of 'qualifying holding' as a direct or indirect holding in an undertaking which represents 10% or more of the capital or of the voting rights or which makes it possible to exercise a significant influence over the management of the undertaking in which a holding subsists.

5 Article 15(1) of Directive 92/49, whose wording is derived from Directive 2007/44, provides:

'Member States shall require any natural or legal person or such persons acting in concert (hereinafter referred to as the "proposed acquirer"), who have taken a decision either to acquire, directly or indirectly, a qualifying holding in an insurance undertaking or to further increase, directly or indirectly, such a qualifying holding in an insurance undertaking as a result of which the proportion of the voting rights or of the capital held would reach or exceed 20%, 30% or 50% or so that the assurance undertaking would become its subsidiary (hereinafter referred to as the "proposed acquisition"), first to notify in writing the competent authorities of the insurance undertaking in which they are seeking to acquire or increase a qualifying holding, indicating the size of the intended holding and relevant information '

6 Article 15a of Directive 92/49, whose wording is derived from Directive 2007/44, provides:

'1.

The competent authorities shall have a maximum of 60 working days as from the date of the written acknowledgement of receipt of the notification and all documents required by the Member State to be attached to the notification on the basis of the list referred to in Article 15b(4) (hereinafter referred to as "the assessment period"), to carry out the assessment provided for in Article 15b(1) (hereinafter referred to as "the assessment")

5. If the competent authorities do not oppose the proposed acquisition within the assessment period in writing, it shall be deemed to be approved.

7. Member States may not impose requirements for the notification to and approval by the competent authorities of direct or indirect acquisitions of voting rights or capital that are more stringent than those set out in this Directive.'

7 Article 15b of Directive 92/49, whose wording is taken from Directive 2007/44, states:

'1. In assessing the notification provided for in Article 15(1) and the information referred to in Article 15a(2), the competent authorities shall, in order to ensure the sound and prudent management of the insurance undertaking in which an acquisition is proposed, and having regard to the likely influence of the proposed acquirer on the insurance undertaking, appraise the suitability of the proposed acquirer and the financial soundness of the proposed acquisition against all of the following criteria:

(a) the reputation of the proposed acquirer;

(b) the reputation and experience of any person who will direct the business of the insurance undertaking as a result of the proposed acquisition;

(c) the financial soundness of the proposed acquirer, in particular in relation to the type of business pursued and envisaged in the insurance undertaking in which the acquisition is proposed;

(d) whether the insurance undertaking will be able to comply and continue to comply with the prudential requirements based on this Directive and, where applicable, other Directives in particular, whether the group of which it will become a part has a structure that makes it possible to exercise effective supervision [and] effectively exchange information among the competent authorities;

2. The competent authorities may oppose the proposed acquisition only if there are reasonable grounds for doing so on the basis of the criteria set out in paragraph 1 or if the information provided by the proposed acquirer is incomplete.

'

Directive 2007/44

8 Recitals 2, 3, 6 and 7 in the preamble to Directive 2007/44 state:

'(2) The legal framework has so far provided neither detailed criteria for a prudential assessment of a proposed acquisition nor a procedure for their application. A clarification of the criteria and the process of prudential assessment is needed to provide the necessary legal certainty, clarity and predictability with regard to the assessment process, as well as to the result thereof.

(3) The role of the competent authorities in both domestic and cross-border cases should be to carry out the prudential assessment within a framework of a clear and transparent procedure and a limited set of clear assessment criteria of strictly prudential nature. It is therefore necessary to specify criteria for the supervisory assessment of shareholders and management in relation to a proposed acquisition and a clear procedure for their application. This Directive should not prevent the competent authorities from taking into account commitments made by the proposed acquirer to meet prudential requirements under the assessment criteria laid down in this Directive, are not affected.

(6) Maximum harmonisation throughout the Community of the procedure and the prudential assessments, without the Member States laying down stricter rules, is critical. The thresholds for notifying a proposed acquisition or a disposal of a qualifying holding, the assessment procedure, the list of assessment criteria and other provisions of this Directive to be applied to the prudential assessment of proposed acquisitions should therefore be subject to maximum harmonisation.

(7) In order to ensure the clarity and predictability of the assessment procedure there should be a limited maximum period of time for completing the prudential assessment. During the assessment procedure, the competent authorities should be able to interrupt that period only once and only for the purpose of requesting additional information after which the authorities should in any event complete the assessment within the maximum assessment period. Neither should this prevent the competent authorities from opposing the proposed acquisition, where appropriate, at any time during the maximum assessment period. Cooperation between the proposed acquirer and the competent authorities should thus remain intrinsic to the entire assessment period. Regular contact between the proposed acquirer and the competent authority of the regulated entity in which the acquisition is proposed may also commence in anticipation of a formal notification. Such cooperation should imply a genuine effort to assist each other in order, for example, to avoid unanticipated requests for information or the submission of information late in the assessment period.'

Netherlands law

9 DNB is the competent authority for approving the acquisition or disposal of a qualifying holding in an insurance company in the Netherlands.

10 In accordance with Article 3:95(1) of the Financial Surveillance Law (Wet op het financieel toezicht) of 28 September 2006, in the version applicable at the material time ('the Wft'), the acquisition of a 'qualifying holding' in an insurance company is subject to the prior issue of a 'declaration of no objection' drawn up by DNB. According to Article 1:1 of the Wft, 'qualifying holding' means 'a direct or indirect holding in an undertaking which represents 10% or more of the capital or of the voting rights or which makes it possible to exercise directly or indirectly an influence over at least 10% of the voting rights in an undertaking, or the possibility to exercise directly or indirectly comparable control in an undertaking'.

11 Article 3:100 of the Wft provides:

'[DNB] shall issue a declaration of no objection in respect of a transaction of the kind referred to in Article 3:95(1), unless:

(a) the transaction might or would lead to an influence over the financial undertaking concerned that would jeopardise the sound and prudent management of that undertaking;

(b) in the case of a transaction of the kind referred to in Article 3:95(1)(a), (d) or (e), the act might or would have the effect that the financial undertaking concerned would become affiliated to persons in a formal or de facto control structure that was so lacking in transparency that it would constitute an impediment to the adequate exercise of supervision of that financial undertaking, or

(c) in the case of a transaction of the kind referred to in Article 3:95(1)(a), (d) or (e), the act might or would lead to an undesirable development of the financial sector.'

12 Pursuant to Article 3.104(1) of the Wft:

'[DNB] may attach restrictions or requirements to a declaration of no objection as referred to in Article 3:95(1), in the light of the interests that Articles 3:100 or 3:101 of the Wft are intended to protect.'

The dispute in the main proceedings and the questions referred for a preliminary ruling

13 Atradius Credit Insurance NV ('ACINV'), established in Amsterdam (Netherlands), is a credit insurance company whose main activity is insuring undertakings against the risk of default on payments. That company belongs to the Atradius Group, of which ATNV is the ultimate holding company.

14 In 2007, Grupo Catalana Occidente SA ('GCO'), established in Barcelona (Spain), decided to acquire, directly or indirectly, control of 64.23% of ATNV's capital.

15 By decision of 13 August 2007, DNB issued a declaration of no objection to GCO on the basis of Articles 3:95 and 3:100 of the Wft.

16 GCO and its subsidiaries then decided further to increase their holding in the capital of ATNV so as to enable them to control, directly or indirectly, almost all of that company's capital.

17 By decision of 25 May 2010, DNB issued a declaration of no objection in respect of that transaction for the purpose of Articles 3:95 and 3:100 of the Wft. However, it attached three requirements to that decision: first, that ATNV and the Atradius group of companies afford cooperation to DNB as regards the prudential supervision of ACINV and ATNV, in particular, by supplying the information requested by DNB; second, that dividend payments by ATNV and ACINV must not result in their solvency ratios falling below a certain threshold; and, third, that at least half of the members of the Supervisory Boards of ATNV and ACINV must be independent members and that the chair of the ACINV Supervisory Board should be an independent member.

18 By decision of 20 July 2010, DNB decided to amend the decision of 13 August 2007 in order retroactively to attach the same requirements as those in its decision of 25 May 2010.

19 CO Sociedad de Gestión y Participación and Others lodged complaints with DNB against the decisions of 25 May and 20 July 2010, in so far as, by those decisions, DNB had attached requirements to the declarations of no objection it had issued.

20 Since those complaints were essentially rejected by the decision of DNB of 8 December 2010, CO Sociedad de Gestión y Participación and Others brought an action before the Rechtbank Rotterdam (Rotterdam Court).

21 By judgment of 4 August 2011, that court held that the pleas for annulment directed against the first requirement attached to DNB's decisions of 25 May and 20 July 2010 were inadmissible on the ground that that requirement had to be regarded as being simply a request by DNB to ATNV and to the companies of the Atradius group to send it the information it was entitled to request. However, the Rechtbank Rotterdam annulled those decisions in so far as they included the second and third requirements. That court held that, while Directive 92/49 did not preclude DNB from attaching certain requirements to the issue of declarations of no objection, those requirements could be addressed only to the persons who had made the application for the relevant declaration of no objection. In the present case, the second and third requirements imposed by DNB concerned ATNV and ACINV and not CO Sociedad de Gestión y Participación and Others.

22 Taking the view that, in any event, Directive 92/49 precluded DNB from being entitled to attach specific requirements to the declarations of no objection at issue in the main proceedings, CO Sociedad de Gestión y Participación and Others brought an appeal against the judgment of the Rechbank Rotterdam before the College van Beroep voor het bedrijfsleven (Administrative Court of Appeal in matters of trade and industry), at the same time as DNB cross appealed against that judgment. Before that court, CO Sociedad de Gestión y Participación and Others point out that the provisions of Directive 92/49, derived from Directive 2007/44, are intended, as set out in recital 6 in the preamble to the latter, to achieve 'maximum harmonisation' of the procedure and prudential assessments. Since those provisions do not provide for the competent national authority, with regard to the prudential supervision of acquisitions and increases in qualifying holdings in an insurance company ('the competent national authority'), to be able to attach restrictions or requirements to the decisions by which they approve a proposed acquisition or increase in a qualifying holding in an insurance company, Directive 92/49 should be interpreted as meaning that it precludes that authority from being able to attach such restrictions or requirements to those decisions.

23 On that occasion, the referring court indicated that it intended to interpret the provisions of Articles 3:100 and 3:104 of the Wft in accordance with the provisions of Directive 2007/44.

24 In those circumstances, the College van Beroep decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

'(1) If the competent authority explicitly approves a proposed acquisition as referred to in Article 15a of Directive 92/49, is it permitted to impose restrictions or requirements on such approval under national law? Does it make a difference in this regard whether such restrictions or requirements are based on previous commitments given by the proposed acquirer, as referred to in recital 3 in the preamble to Directive 2007/44?

(2) If Question 1 is answered in the affirmative, must the restrictions or requirements attached by the competent authority be necessary in the sense that, were they not to be attached, the competent authority would find it necessary to oppose the proposed acquisition in the light of the assessment based on the criteria laid down in Article 15b(1) of Directive 92/49?

(3) If it is permissible to impose restrictions or requirements, does Article 15b(1) of Directive 92/49 provide a basis for the competent authority to lay down requirements for the acquisition in regard to the "corporate governance" of the undertaking the acquisition of which is proposed, such as a two-tier supervisory board structure?'

Consideration of the questions referred for a preliminary ruling

The first question

25 By its first question, the referring court asks essentially whether Directive 92/49 must be interpreted as meaning that it precludes the competent national authority, on the basis of the applicable national legislation, from attaching restrictions or requirements to the approval of proposals for acquisitions, whether on its own initiative or by formalising commitments given by the proposed acquirer.

26 In that connection, as regards the wording employed by Directive 92/49, it must be noted that none of its provisions expressly provides for the competent national authorities to be entitled to attach restrictions or requirements to the approval of proposed acquisitions.

27 However, according to settled case-law, in interpreting a provision of EU law it is necessary to consider not only its wording, but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, judgment in SGAE, C 306/05, EU:C:2006:764, paragraph 34).

28 As regards the context, it should be observed that Article 15a(7) of Directive 92/49 provides that the Member States may not impose requirements for the approval by the competent national authorities of acquisitions that are more stringent than those set out in that directive.

29 It follows, a contrario, that the Member States may be regarded as being authorised by that provision to subject the approval by the competent national authorities of proposed acquisitions to requirements that are less restrictive than those laid down by Directive 92/49, provided that the criteria listed in Article 15b(1) are met.

30 A provision by which a Member State confers on the competent authority the power to attach restrictions or requirements to a proposed acquisition, in a situation in which Article 15b(2) thereof would permit the latter validly to oppose that acquisition, subjects that approval to requirements which are less restrictive than those laid down by Directive 92/49.

31 It follows that Directive 92/49 must be interpreted as meaning that, in a situation in which an opposition decision may be validly adopted pursuant to Article 15b(2) thereof, that directive does not preclude a Member State from authorising the competent national authority to attach restrictions or requirements to the approval of proposed acquisitions, either on its own initiative or by formalising commitments proposed by the proposed acquirer, provided, as it follows from recital 3 in the preamble to Directive 2007/44, that the rights of the proposed acquirer under that directive are not adversely affected and, accordingly, under Directive 92/49.

32 That finding is confirmed by the objective pursued by Directive 92/49, which, as stated in recital 1, is to complete the internal market in direct insurance other than life assurance from the point of view both of the right of establishment and the freedom to provide services, and the objective pursued by prudential assessment which, as is clear from Article 15b of Directive 92/49, is to ensure the sound and prudent management of the insurance undertaking in which an acquisition is proposed.

33 First, the possibility granted to the competent national authority, in a situation in which it could validly oppose proposed acquisitions, to approve them by subjecting the proposed acquirers to restrictions or requirements, is likely to encourage the exercise of the freedom of establishment and the freedom to provide services in the direct insurance other than life insurance sector. Second, the fact that that authority attaches restrictions or requirements to the approval of proposed acquisitions may help to reduce the risk of a reduction in its solvency following a change in the relevant shareholders.

34 Having regard to the foregoing, the answer to the first question is that Directive 92/49 must be interpreted as meaning that it does not preclude a Member State, in a situation in which the competent national authority could validly oppose a proposed acquisition pursuant to Article 15b(2) thereof, from authorising that authority, pursuant to its national legislation, to attach restrictions or requirements to the approval of the proposed acquisition, either on its own initiative or by formalising commitments given by the proposed acquirer, provided that the rights of the proposed acquirer under that directive are not adversely affected.

The second question

35 By its second question, the referring court asks essentially whether Directive 92/49 must be interpreted as meaning that the competent national authority is required to impose restrictions or requirements on the proposed acquirer before it can oppose the proposed acquisition and, if so, whether such restrictions or requirements must be determined by reference to the criteria set out in Article 15b(1) of that directive.

36 It must be noted that Article 15b(2) of Directive 92/49 provides that the competent national authority may oppose the proposed acquisition only if there are reasonable grounds for doing so on the basis of the criteria set out in Article 15b(1) thereof or if the information provided by the proposed acquirer is incomplete.

37 Since the wording of Article 15b(2) of that directive does not expressly lay down an obligation on the competent national authority to adopt restrictions or requirements before it can oppose a proposed acquisition, the existence of such an obligation cannot be inferred from that provision.

38 It follows that the competent national authority may oppose the proposed acquisition without first being required to impose restrictions or requirements on the proposed acquirer.

39 However, as it follows from recital 7 in the preamble to Directive 2007/44 that the competent national authority and the proposed acquirer must cooperate by making a genuine effort to assist each other in the assessment of the proposed acquisition in the light of the criteria in Article 15b(1) of Directive 92/49, it is for that authority, if the proposed acquirer concerned is willing to give commitments to it, to examine with the greatest care whether the imposition of restrictions or requirements would, taking account of those commitments, sufficiently meet the reasonable grounds that it identified and would thus be of such a nature as to enable the proposed acquisition to be approved.

40 In any event, the competent national authority may use the option it has to impose restrictions or requirements on the proposed acquirer of that kind only within certain limits.

41 It follows, first of all, from the wording of Article 15b(2) of Directive 92/49 and recitals 2, 3 and 6 in the preamble to Directive 2007/44, that the list of criteria set out in Article 15b(1) of Directive 92/49 and in the light of which the prudential assessment of the proposed acquisition must be made, are exhaustive.

42 The exhaustive nature is confirmed by the wording of Article 15a(7) of Directive 92/49, according to which the Member States may not impose requirements for the notification to and approval by the competent authorities of direct or indirect acquisitions of voting rights or capital that are more stringent than those set out in that directive.

43 In those circumstances the restrictions or requirements which the competent national authority may, if appropriate, attach to a proposed acquisition cannot be based on an assessment criterion which does not appear among those set out in Article 15b(1) of Directive 92/49.

44 Next, it should be noted that, where a national authority adopts measures which fall within the scope of EU law, those measures must comply with the general principles of that law such as, inter alia, the principle of proportionality which requires that those measures be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, inter alia, to that effect, judgment in ABNA and Others, C 453/03, C 11/04, C 12/04 and C 194/04, EU:C:2005:741, paragraph 68).

45 It follows that if the competent national authority decides to attach restrictions or requirements to the approval of a proposed acquisition, those restrictions or requirements cannot go beyond what is necessary in order for the acquisition to satisfy the criteria laid down in Article 15b(1) of Directive 92/49.

46 Therefore, the answer to the second question is that Directive 92/49 must be interpreted as meaning that the competent national authority is not required to impose restrictions or requirements on the proposed acquirer before it can oppose the proposed acquisition. If that authority decides to attach restrictions or requirements to the approval of a proposed acquisition, those restrictions cannot be based on a criterion which is not among those set out in Article 15b(1) of that directive, nor can they go beyond what is necessary in order for the acquisition to satisfy those criteria.

The third question

47 By its third question, the national court asks essentially whether Article 15b(1) of Directive 92/49 must be interpreted as offering the competent national authority a basis for imposing a requirement on the proposed acquirer relating to corporate governance concerning, as in the case in the main proceedings, the composition of the supervisory boards of the insurance undertakings concerned.

48 First of all, it follows from Article 15b(1)(d) of Directive 92/49 that the competent national authorities may oppose the proposed acquisition for a reason relating to the ability of the insurance undertaking in question, if the acquisition were to take place, to comply and continue to comply with the prudential requirements based inter alia on that directive, given that, according to that provision, the ability of an insurance undertaking to comply and continue to comply with the prudential obligations requires that the group of which it will become a part has a structure that makes it possible for the competent national authority to exercise effective supervision.

49 It follows that Article 15b(1) of Directive 92/49 must be interpreted as meaning that the competent national authority may, in principle, attach restrictions or requirements to the approval of proposed acquisitions relating to corporate governance, so as to guarantee the existence of such a structure.

50 Next, as has already been stated in paragraph 45 of the present judgment, in order for a requirement to comply with Directive 92/49, it must not go beyond what is necessary in order for the acquisition to satisfy the criteria laid down in Article 15b(1) of the directive.

51 In the present case, the third requirement, relating to the corporate governance of ATNV and ACINV, which DNB attached to its decisions of 25 May and 20 July 2010, concerns the composition of the supervisory boards of those two companies, since DNB required that at least half their members must be independent of the shareholders and that the chair of the ACINV supervisory board should be an independent member.

52 In that connection, it may legitimately be considered that a requirement aiming to guarantee the independence of the supervisory body of a company may contribute to the quality and reliability of the prudential information that it must provide, that being information which is necessary in order for the competent national authority to exercise effective supervision over that company.

53 Therefore, such a requirement may be considered, in principle, as one which is based on one of the criteria listed in Article 15b(1) of Directive 92/49.

54 In so far as, first, the supervisory board constitutes a supervisory body and not a decision-making body and, second, after the two acquisitions at issue in the main proceedings GCO and its subsidiaries will control almost all of ATNV and ACINV, that requirement does not appear, prima facie, as going beyond what is necessary to enable DNB to ensure that those acquisitions satisfy the criteria laid down in Article 15b(1)(d) of Directive 92/49.

55 However, it is for the referring court to ascertain whether that is actually the case, by taking account of all the circumstances in the main proceedings, in particular the nature and extent of the powers devolved by national legislation to the supervisory board and its president.

56 Having regard to the foregoing, the answer to the third question is that Article 15b(1) of Directive 92/49 must be interpreted as meaning that, in principle, it does not preclude the competent national authority from imposing a requirement relating to corporate governance concerning, as in the case in the main proceedings, the composition of the supervisory boards of the insurance companies concerned by the proposed acquisition. It is for the national court to determine, by taking account of all the circumstances in the main proceedings, whether that requirement is necessary to enable the acquisitions at issue in the main proceedings to satisfy the criteria laid down in that provision.

Costs

57 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

1. Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive), as amended by Directive 2007/44/EC of the European Parliament and of the Council of 5 September 2007, must be interpreted as meaning that it does not preclude a Member State, in a situation in which the competent national authority could validly oppose a proposed acquisition pursuant to Article 15b(2) thereof, from authorising that authority, pursuant to its national legislation, to attach restrictions or requirements to the approval of the proposed acquisition, either on its own initiative or by formalising commitments given by the proposed acquirer, provided that the rights of the proposed acquirer under that directive are not adversely affected.

2. Directive 92/49, as amended by Directive 2007/44, must be interpreted as meaning that the competent national authority is not required to impose restrictions or requirements on the proposed acquirer before it can oppose the proposed acquisition. If that authority decides to attach restrictions or requirements to the approval of a proposed acquisition, those requirements cannot be based on a criterion which is not among those set out in Article 15b(1) of that directive, nor can they go beyond what is necessary in order for the acquisition to satisfy those criteria.

3. Article 15b(1) of Directive 92/49, as amended by Directive 2007/44, must be interpreted as meaning that, in principle, it does not preclude the competent national authority from imposing a requirement relating to corporate governance concerning, as in the case in the main proceedings, the composition of the supervisory boards of the insurance companies concerned by the proposed acquisition.

It is for the national court to determine, by taking account of all the circumstances in the main proceedings, whether that requirement is necessary to enable the acquisitions at issue in the main proceedings to satisfy the criteria laid down in that provision.