Odbor kompatibility s právem ES
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Databáze č. 17 : Databáze judikatury
ă Odbor kompatibility s právem ES, Úřad vlády ČR - určeno pouze pro potřebu ministerstev a ostatních ústředních orgánů

Číslo (Kód CELEX):
Number (CELEX Code):
61993J0384
Název:
Title:
JUDGMENT OF THE COURT OF 10 MAY 1995.
ALPINE INVESTMENTS BV V MINISTER VAN FINANCIEN.
REFERENCE FOR A PRELIMINARY RULING: COLLEGE VAN BEROEP VOOR HET BEDRIJFSLEVEN - NETHERLANDS.
FREEDOM TO PROVIDE SERVICES - ARTICLE 59 OF THE EEC TREATY -
PROHIBITION OF COLD CALLING BY TELEPHONE FOR FINANCIAL SERVICES.
CASE C-384/93.
Publikace:
Publication:
European Court Reports 1995 page I-1141
Předmět (klíčová slova):
Keywords
Související předpisy:
Corresponding acts:
Odkaz na souvisejicí judikáty:
Corresponding Judgements:
    Peralta Case C-379/92 Peralta [1994] ECR I-3453
    · Corsica Ferries Case C-18/93 Corsica Ferries Italia v Corpo dei Piloti del Porto di Genova [1994] ECR I-1783
    · Case C-318/93 Commission v France [1994] ECR I-5145
    · Keck and Mithouard Joined Cases C-267 and 268/91 Keck and Mtihouard [1993] ECR I-6097
Plný text:
Fulltext:
Ano

Fakta:
Alpine Investments BV (“Alpine”) is an investment firm specializing in commodities futures As the Court explains: “The parties to a commodities futures contract undertake to buy or sell a specified quantity of a commodity of a given quality at a price and date fixed at the time the contract is concluded. They do not, however, intend actually to take delivery of or to deliver the commodity but contract solely in the hope of profiting from price fluctuations between the time the contract is concluded and the month of delivery. This can be done by entering into a mirror-image transaction on the futures market before the beginning of the month of delivery.” established (only) in the Netherlands. It has clients not only in the Netherlands but also in Belgium, France and the United Kingdom. To promote its services, Alpine, inter alia, approaches its clients by telephone without their prior consent in writing in order to offer them financial services, a practice known as “cold calling”. In 1991, the Minister of Finance imposed a general prohibition on financial intermediaries who offered investments in off-market commodities futures from cold calling potential clients and consequently prohibited Alpine from contacting potential clients by telephone or in person unless those clients had first expressly authorized it in writing to contact them in such a manner. This prohibition had been adopted after the Minister of Finance had received numerous complaints from investors who had made unfortunate investments in the commodities futures sector. In that situation, the Minister of Finance deemed the prohibition necessary on grounds of consumer protection and with a view to preserving the reputation of the Netherlands financial sector.
After its administrative objection against the prohibition had been rejected, Alpine appealed to the Administrative Court, claiming in particular that the prohibition of cold calling was incompatible with Article 59 of the Treaty in so far as it concerned potential clients established in Member States other than the Netherlands. The Administrative Court stayed the proceedings and under Article 177 of the Treaty referred to the Court of Justice questions on the interpretation of Article 59, demanding in particular (1) whether Article 59 also covers (a) offers for services which (b) are being made to persons in another member State without moving from the Member State in which the offeror is established; (2) whether the prohibition in question is a restriction to Article 59 and (3) whether imperative reasons of public interest justify the prohibition of cold calling and whether that prohibition must be considered objectively necessary and proportionate to the objective pursued.


Názor soudu a komentář:
Article 59 of the Treaty not only covers the actual execution of services but also the offer to provide services. According to its express terms, Article 59 applies where such offer is made by a provider established in one Member State to a potential recipient in another Member State.
The Court went on to determine whether the prohibition of cold calling constitutes a restriction on the freedom to provide services. Referring to its judgement in Peralta the Court first points out that regulations of the provision of services introduced by one Member State do not constitute a restriction on the sole ground that “other Member States apply less strict rules to providers of similar services established in their territory”. The prohibition of cold calling, however, does constitute a restriction to the freedom to provide cross-border services because it “deprives the operators concerned of a rapid and direct technique for marketing and for contacting potential clients in other Member States”. The fact that the restriction in question is imposed by the State in which the provider is established and not in the Member State where potential clients are situated does not warrant a different ruling because the freedom to provide services can be relied on also as against the state where the provider is established and not only as against the Member State were the offeree is established ( Corsica Ferries; Peralta; Case C-381/93).
It had been argued, though, that, in analogy to the Court’s ruling in Keck and Mithouard, the prohibition in question should fall outside the scope of Article 59. “According to that judgement [which concerns Article 30 of the Treaty], the application to products from other Member States of national provisions restricting or prohibiting, within the Member State of importation, certain selling arrangements is not such as to hinder trade between Member States so long as, first, those provisions apply to all relevant traders operating within the national territory and secondly, they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. The reason is that the application of such provisions is not such as to prevent access by the latter to the market of the Member State of importation or to impede such access more than it impedes access by domestic products.” The Court, however, finds that this analysis could not presently apply because the prohibition in question directly affects access to the market in which the service is to be provided and “is thus capable of hindering intra-Community trade in services”.
A restriction to Article 59 of the Treaty can be justified if the measure in question is mandated by imperative reasons of public interest and its is objectively necessary and proportionate to the objective pursued. The Court accepts that professional regulations constitute such imperative reasons because they ensure the public’s confidence in the financial market which is a necessary prerequisite for its smooth operation. This restriction is also proportionate to the objective pursued and necessary because of the risks inherent in the transactions in question. In particular, the Court rejects the argument that a the prohibition was not necessary because the Member State where the potential client is established could regulate the issue; such a regulation, the Court reasons, would be less effective because it could only be enforced in cooperation with the Member State where the provider of services is located. Also the fact that other Member States have less strict rules does not lead to the conclusion that the prohibition in question was disproportionate. Finally, the prohibition of cold calling is not disproportionate because it applies generally, i.e. irrespective of the past conduct of the individual undertaking; such individual assessment “might not be sufficient to achieve the objective of restoring and maintaining investor confidence in the national securities market in general”. The prohibition of cold calling was limited so as to only to the extent necessary restrict the provision of services, namely only covering the first contact to customers by telephone or in person by a financial intermediary in the commodities futures market.


Shrnutí (Summary of the Judgment):


Plný text judikátu (Entire text of the Judgment):


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