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CJEU Case C-686/18 / Opinion

OC e.a. and Others v Banca d'Italia and Others

Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
11/02/2020

Key facts of the case:

Reference for a preliminary ruling — Admissibility — Article 63 et seq. TFEU — Free movement of capital — Article 107 et seq. TFEU — State aid — Articles 16 and 17 of the Charter of Fundamental Rights of the European Union — Freedom to conduct a business — Right to property — Regulation (EU) No 575/2013 — Prudential requirements applicable to credit institutions and investment firms — Article 29 — Regulation (EU) No 1024/2013 — Article 6(4) — Prudential supervision of credit institutions — Conferral of specific tasks on the European Central Bank (ECB) — Delegated Regulation (EU) No 241/2014 — Regulatory technical standards for Own Funds requirements for institutions — National regulation imposing an asset threshold on people’s banks established as cooperative societies and allowing the right to redeem shares by the withdrawing shareholder to be limited.

Outcome of the case:

Accordingly, in view of all the foregoing, if the Court considers that the questions referred are admissible, it is my view that the Court should answer the questions referred by the Consiglio di Stato (Council of State, Italy) as follows:

  1. Article 29 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, Article 10 of Commission Delegated Regulation (EU) No 241/2014 of 7 January 2014 supplementing Regulation (EU) No 575/2013 of the European Parliament and of the Council with regard to regulatory technical standards for Own Funds requirements for institutions, and Article 6(4) of Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions neither require nor preclude a national provision which imposes an asset threshold of EUR 8 billion above which a people’s bank must be converted into a company limited by shares.
  2. Article 29 of Regulation No 575/2013 and Article 10(2) of Delegated Regulation No 241/2014 do not preclude a national provision which permits a people’s bank to defer redemption for an unlimited period and to limit the associated amount in full or in part until such time and to the extent that the prudential requirements of Article 10(3) of Delegated Regulation No 241/2014 are met.
  3. Articles 49 and 63 et seq. TFEU and Articles 16 and 17(1) of the Charter do not preclude national provisions which limit the exercise of cooperative banking activities within a given asset limit, requiring the bank concerned to be converted into a company limited by shares if it should exceed that limit where the provisions were adopted in order to ensure the good governance and stability of the banking sector or a particular section of the banking sector in a Member State and the restriction imposed by the provision is both necessary to achieve those objectives and is proportionate in nature.
  4. Articles 107 et seq. TFEU on State aid do not preclude a national provision which requires a people’s bank to be converted into a company limited by shares if it exceeds a certain asset threshold and establishes restrictions on the redemption of the shares held by shareholders in the event of withdrawal, in order to avoid the possible liquidation of the converted bank, where the resources in question originate from the shareholders of the bank in question are thus private rather than public in nature.