OPINION OF ADVOCATE GENERAL

STIX-HACKL

delivered on 16 March 2006 (1)

Case C-452/04

Fidium Finanz AG

v

Bundesanstalt für Finanzdienstleistungsaufsicht

(Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main (Germany))

(Free movement of capital – Freedom to provide services – Grant of credit by an undertaking having its registered office in a third country to residents of a Member State – Requirement of prior authorisation in the Member State in which the service is provided – Abuse)

I –  Introduction

1.        This reference for a preliminary ruling concerns the question whether the commercial grant of credit by an undertaking having its registered office in a third country to residents of a Member State of the European Union falls within the scope of the free movement of capital or the freedom to provide services. It has to do in particular with whether it is lawful for the Member State concerned to require authorisation for such a grant of credit and to make authorisation subject to the precondition that the undertaking in the third country must be established in that Member State.

II –  Legislative framework

A –    Community law

1.      The relevant provisions concerning the free movement of capital

2.        Article 56(1) EC provides:

‘[w]ithin the framework of the provisions set out in this Chapter, all restrictions on the movement of capital between Member States and between Member States and third countries shall be prohibited’.

3.        The first sentence of Article 57(1) EC provides:

‘[t]he provisions of Article 56 shall be without prejudice to the application to third countries of any restrictions which exist on 31 December 1993 under national or Community law adopted in respect of the movement of capital to or from third countries involving direct investment — including in real estate — establishment, the provision of financial services or the admission of securities to capital markets’.

4.        Article 58(1)(b) EC provides:

‘[t]he provisions of Article 56 shall be without prejudice to the right of Member States to take all requisite measures to prevent infringements of national law and regulations, in particular in the field of taxation and the prudential supervision of financial institutions, or to lay down procedures for the declaration of capital movements for purposes of administrative or statistical information, or to take measures which are justified on grounds of public policy or public security’.

5.        Article 58(3) EC provides:

‘[t]he measures and procedures referred to in paragraphs 1 and 2 shall not constitute a means of arbitrary discrimination or a disguised restriction on the free movement of capital and payments as defined in Article 56’.

2.      Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty (‘Directive 88/361’) (2)

6.        The introduction to the Nomenclature in Annex I to Directive 88/361 provides, in extract:

‘[t]he capital movements listed in this Nomenclature are taken to cover:

–        all the operations necessary for the purposes of capital movements: conclusion and performance of the transaction and related transfers.

–        operations to repay credits or loans.

This Nomenclature is not an exhaustive list for the notion of capital movements – whence a heading XIII – F. other capital movements – Miscellaneous ...’.

7.        The classification under the Nomenclature includes the following:

‘VIII. Financial loans and credits (not included under I, VII and XI)

A. Loans and credits granted by non-residents to residents’.

8.        The definitions include:

‘Financial loans and credits

This category also includes mortgage loans, consumer credit, ...’.

3.      Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and pursuit of the business of credit institutions (‘Directive 2000/12’) (3)

9.        The reference to the legal basis reads as follows:

‘… having regard to the Treaty establishing the European Community, and in particular the first and third sentences of Article 47(2) thereof …’.

10.      Recital (4) in the preamble reads:

‘[t]his Directive constitutes the essential instrument for the achievement of the internal market ... from the point of view of ... the freedom to provide financial services, in the field of credit institutions, …’.

11.      Recital (18) reads:

‘[t]here is a necessary link between the objective of this Directive and the liberalisation of capital movements being brought about by other Community legislation. In any case the measures regarding the liberalisation of banking services must be in harmony with the measures liberalising capital movements’.

12.      The fourth sentence of Recital (19) in the preamble reads:

‘[t]he branches of credit institutions authorised in third countries do not enjoy the freedom to provide services ... in Member States other than those in which they are established …’.

13.      Recital (65) in the preamble reads:

‘[s]upervision of credit institutions on a consolidated basis must be aimed at, in particular, protecting the interests of the depositors of the said institutions and ensuring the stability of the financial system’.

14.      The first sentence of Article 4 reads:

‘Member States shall require credit institutions to obtain authorisation before commencing their activities’.

15.      The activities subject to mutual recognition which are listed in Annex I include ‘[l]ending, including consumer credit’.

B –    National law

1.      Gesetz über das Kreditwesen (Law on Banking and Financial Dealings) (‘KWG’) (4)

16.      The first sentence of Paragraph 32(1) of the KWG provides:

‘[a]nyone wishing to carry on banking activities or to provide financial services on a commercial basis or on a scale requiring operation as a business entity must have written authorisation from the Federal Office; …’.

17.      The first sentence of Paragraph 1(1) of the KWG reads:

‘[c]redit institutions are undertakings which carry on banking activities on a commercial basis or on a scale requiring operation as a business entity’.

18.      Paragraph 1(1)(2) of the KWG reads, in extract:

‘[b]anking activities are …

(2) the granting of money loans and acceptance credits (lending)’.

19.      Paragraph 6(2) provides:

‘[t]he Federal Office for the Supervision of Financial Services shall counteract adverse occurrences in the banking and financial services sector which are capable of endangering the safety of the assets entrusted to institutions, impairing the proper conduct of banking activities or financial services or causing considerable damage to the national economy’.

20.      The first sentence of Paragraph 33(1) of the KWG reads, in extract:

‘[a]uthorisation shall be refused if …

(6) the institution does not have its central administration in the national territory; …’.

21.      In contrast to Paragraph 33(1)(1)(6) of the KWG, Paragraph 53 of the KWG permits branches of foreign institutions to pursue their activities without moving their central administration if the conditions set out in Paragraph 53(2) of the KWG are fulfilled. In the case of deposit-taking credit institutions and financial services undertakings established in another State of the European Economic Area, Paragraph 53(b) of the KWG provides privileged opportunities for access to the market in the Federal Republic.

22.      In the case of States such as Switzerland, Paragraph 53(c) of the KWG makes relaxations in market access dependent upon an order from the Federal Ministry of Finance.

23.      Paragraph 54 of the KWG makes it a criminal offence to carry on activities or to provide financial services without authorisation under Paragraph 32(1) of the KWG.

2.      Instructions of the Bundesanstalt für Finanzdienstleistungsaufsicht [Federal Office for the Supervision of Financial Services] (‘BaFin’) of 12 April 2003 concerning the obligation to obtain authorisation under Paragraph 32(1) of the KWG

24.      In a change to its administrative practice, BaFin now also deals with banking activities carried on by undertakings established outside Germany, if those activities are directed at the market in the national territory.

III –  Facts and main proceedings

25.      Fidium Finanz AG (‘Fidium Finanz’) is a company limited by shares and incorporated under Swiss law which has its registered office and central administration in St. Gallen. It essentially grants small-scale credits of EUR 2 500 or EUR 3 500 for which no credit report is obtained from the Schutzgemeinschaft für allgemeine Kreditsicherung (German central credit reporting agency; ‘Schufa’) before the credit is granted. Such a credit report is, however, customary where credit institutions established in Germany grant credits. At the material time, Fidium Finanz did not have the authorisation to carry on banking activities required by German law.

26.      According to the order for reference, Fidium Finanz is not subject to the supervision of the Swiss Banking Commission in Switzerland. According to the report of the competent Canton of St. Gallen of 28 June 2004, cited in the order for reference, although Fidium Finanz does not have authorisation to grant credit under Swiss law, it does not require it, since it grants consumer credits exclusively to persons living outside Switzerland.

27.      At the beginning of 2003, BaFin was made aware that Fidium Finanz was granting credit. It was offering loans in the aforementioned two amounts, inter alia, via the internet; the internet site was in German. Customers were able to download and complete the loan application documents and send them by post to Fidium Finanz, which then decided whether or not to accept the loan application. If the application was accepted, the credit amount was remitted to the customer by money order. The term of the loans was 40 months and the effective rate of interest in 2003 was, according to the information provided by Fidium Finanz, 13.94%. The second route to taking up the offers of credit involved credit intermediaries operating in Germany, who, under the company’s own name, also advertised Fidium Finanz loans on the internet.

28.      On 12 April 2003, BaFin published new instructions concerning the obligation to obtain authorisation for cross-border banking activities under Paragraph 32(1) of the KWG.

29.      By decision of 22 August 2003, BaFin prohibited Fidium Finanz from carrying on lending activities, within the meaning of Paragraph 1(1)(2)(2) of the KWG, on a commercial basis or on a scale requiring operation as a business entity by granting loans of money to customers resident in the Federal Republic of Germany towards whom it directs its services.

30.      By decision of 18 February 2004, BaFin dismissed the administrative appeal brought against that order on 1 September 2003. As a result, on 2 March 2004, Fidium Finanz brought before the Verwaltungsgericht Frankfurt am Main (Administrative Court, Frankfurt am Main) an action for the annulment of the decision adopted against it. It claims that, since the registered office of its company is in Switzerland and all its administrative activities are concentrated there, it does not carry on banking activities ‘in the national territory’, as Paragraph 32(2)(1) of the KWG requires in order for the authorisation condition to be applicable.

31.      In the view of the Verwaltungsgericht, however, the action has no prospect of succeeding under national law, since Fidium Finanz is subject to the authorisation requirement under Paragraph 32(1) of the KWG. However, the situation may be different under Community law, which takes precedence.

IV –  The questions referred

32.      The Verwaltungsgericht Frankfurt am Main therefore referred the following questions to the Court of Justice for a preliminary ruling:

1.      Can an undertaking having its registered office in a country outside the European Union, in this case Switzerland, rely on the freedom of movement of capital under Article 56 EC in respect of the commercial grant of credit to residents of a Member State of the European Union, in this case the Federal Republic of Germany, as against that Member State and the measures taken by its authorities or courts, or are the preparation, provision and performance of such financial services covered solely by the freedom to provide services under Article 49 et seq. EC?

2.      Can an undertaking having its registered office in a country outside the European Union rely on the freedom of movement of capital under Article 56 EC where it grants loans commercially or predominantly to residents domiciled within the European Union and has its registered office in a country in which it is not subject, in relation to the taking up and conduct of that business activity, to the requirement of prior authorisation by a State authority of that country or the requirement of regular supervision of its business activity in a manner which is customary in respect of credit institutions within the European Union, and in this particular case within the Federal Republic of Germany, or does reliance on freedom of movement of capital in such a case constitute misuse of the law?

Can such an undertaking be treated, in relation to the law of the European Union, in the same way as persons and undertakings established in the territory of the relevant Member State as regards the obligation to obtain authorisation even though it does not have its registered office in that Member State and also does not maintain a branch there?

3.      Do rules which make the commercial grant of credit by an undertaking having its registered office in a country outside the European Union to residents within the European Union subject to authorisation being obtained beforehand from an authority of the relevant Member State of the European Union in which the borrower is domiciled interfere with the freedom of movement of capital under Article 56 EC?

In this respect is it relevant whether the unauthorised commercial grant of credit constitutes a criminal offence or merely an administrative one?

4.      Is the prior authorisation requirement referred to in Question 3 justified by Article 58(1)(b) EC, in particular as regards

–        protecting borrowers from contractual and financial obligations towards persons whose reliability has not been checked beforehand,

–        protecting this category of persons from undertakings or persons operating improperly with regard to their bookkeeping and their obligation under general rules to provide customers with advice and information,

–        protecting this category of persons from inappropriate or improper advertising,

–        ensuring that the lending undertaking has adequate financial resources,

–        protecting the capital market from the unmonitored grant of large-scale credits, and

–        protecting the capital market and society as a whole from criminal practices as covered in particular by the provisions on combating money laundering and terrorism?

5.      Does Article 58(1)(b) EC cover the formulation of an authorisation requirement permissible per se under Community law – in the sense of Question 3 – to obtain which it is mandatory for the undertaking to have its central administration or at least a branch in the Member State concerned to be granted authorisation, in particular in order to

–        enable business processes and transactions to be genuinely and effectively monitored, that is to say even with little or no notice, by the bodies of the Member State concerned,

–        render business processes and transactions completely intelligible by means of the documents available or to be submitted in the Member State,

–        have access to those personally responsible for the undertaking in the territory of the Member State, and

–        ensure, or at least facilitate, payment of the claims of the undertaking’s customers within the Member State?

V –  The first question

33.      By its first question, the referring court essentially wishes to ascertain whether an undertaking having its registered office in a third country can rely on the free movement of capital for the purposes of granting credit to residents of a Member State, or whether that activity falls within the scope solely of Article 49 EC, that is to say the freedom to provide services.

A –    Main submissions of the parties

34.      Fidium Finanz and the Commission take the view that the grant of credit comes within the scope of the free movement of capital. Both refer in this respect to the Nomenclature in Annex I to Directive 88/361.

35.      In the view of Fidium Finanz, the grant of credit is expressly referred to as a capital movement in Heading VIII of Annex I to Directive 88/361, ‘ [f]inancial loans and credits’. In the Commission’s submission the phrase ‘[o]perations to repay credits or loans’ in the introduction to the Nomenclature does nothing to alter that fact, lending likewise being included since that list is not exhaustive.

36.      Fidium Finanz further contends that, while there is a link between the grant of credit and the freedom to provide services, this does not preclude the applicability of Article 56 EC, since the overwhelming case-law of the Court in the field of financial services (5) shows that the two fundamental freedoms apply in parallel.

37.      On the other hand, BaFin and the German, Greek, Italian and Portuguese Governments and Ireland are of the opinion that Article 56 EC is not applicable. BaFin and the German Government rely in this regard, first of all, on the fact that a grant of credit is not in the nature of an investment. (6) Furthermore, while the German and Greek Governments and BaFin concede that the authorisation requirement may have an indirect effect on capital movements, in this case the payment of the loan amount, they also argue that it follows from the case-law of the Court of Justice (7) that Article 56 EC does not prohibit restrictions on movements of capital which merely result indirectly from restrictions on other fundamental freedoms, in this particular case the freedom to provide services.

38.      Ireland submits that, while that case-law should no longer be taken into account, the ‘principal aspect’ criterion likewise rules out the application of the rules on movements of capital.

39.      Moreover, the Italian, Greek and German Governments and BaFin refer to Directive 2000/12, which, by virtue of its legal basis, some of the recitals in its preamble and the list contained in Annex I, classifies the grant of credits as falling within the scope of the freedom to provide services, not the free movement of capital.

40.      Finally, the German Government goes on to say that Article 49 EC is a provision within the meaning of Article 57(1) EC and that the free movement of capital in the field of financial services is confined to the Member States, because the grant of credit at least also constitutes a service.

B –    Assessment

41.      By its first question, the referring court wishes to ascertain whether the grant of loans from a third State to a borrower in the European Union falls under the rules on the free movement of capital and/or those on the freedom to provide services.

42.      As regards Article 49 EC et seq., that is to say the freedom to provide services, the Court of Justice, in Svensson and Gustavsson (8) and Parodi, (9) regarded loans as also constituting services. Consequently, while the subject-matter in question falls within the scope ratione materiae of the freedom to provide services, an undertaking such as Fidium Finanz cannot rely on that freedom, since its scope ratione personae does not extend to persons resident outside the Community. Moreover, the Agreement between the European Community and the Swiss Confederation (10) on the free movement of persons does not lead to a different conclusion.

43.      However, it follows from the wording of Article 56(1) EC (‘… and between Member States and third countries …’) that even an undertaking established outside the Community can rely on the free movement of capital. (11)

44.      The following examination must therefore focus on whether the subject-matter in question falls only within the scope ratione personae of Article 56(1) or whether it falls within its scope ratione materiae as well and the grant of credit can be classified as a capital movement.

45.      The Treaty itself does not contain a legal definition of the term ‘movements of capital’. It is settled case-law, (12) however, that the Court interprets that term by reference to the Nomenclature in Annex I to Directive 88/361. Even though that directive is based on the then applicable Articles 69 and 70(1) EEC, it still, after the entry into force of the Treaty of Maastricht, has indicative value for the purposes of defining the term movements of capital.

46.       Heading VIII(A) of the Nomenclature in Annex I to Directive 88/361 refers to ‘[l]oans and credits granted by non-residents to residents’. Under the ‘Explanatory Notes’ at the end of the Nomenclature, these are defined as ‘[f]inancing of every kind granted by financial institutions ... includ[ing] ... consumer credit ...’. To begin with, therefore, an activity such as that of Fidium Finanz can be classified as a capital movement.

47.      The introduction to the Nomenclature, however, refers only to ‘[o]perations to repay credits or loans’ as constituting capital movements and would therefore suggest a division between the conclusion of contracts for the provision of a financial service, which would come under the freedom to provide services – which is not applicable here –, and the performance of such transactions as part of the free movement of capital.

48.      The fact that such a split of a single economic process is not intended, however, is clear from the further statement in the introduction to the Nomenclature that capital movements cover ‘all the operations necessary for the purposes of capital movements: conclusion and performance of the transaction and related transfers’.

49.      This is also clear from the wording of Heading X, which departs from that of Heading VIII. Heading X refers only to ‘[t]ransfers in performance of insurance contracts’. It might be inferred from this that capital movements in this field are therefore confined solely to the act of transfer, to the exclusion of the insurance transaction on which that act is based.

50.      However, it follows from the different wording in Heading VIII(A) that, at least as far as loans are concerned, the Community legislature did not intend to split an economic process for the purposes of its legal definition.

51.      That conclusion is supported by the case-law of the Court, (13) which, on the basis of the non-exhaustive nature of the Nomenclature, states that the free movement of capital also covers other transactions additional to those expressly listed. Accordingly, the free movement of capital must apply a fortiori to the grant of credits, in particular because credits are expressly referred to in the Nomenclature in Annex I, although the introduction to the Nomenclature refers only to operations to repay credits or loans.

52.      Not even the findings of the Court in Luisi and Carbone (14) contradict that interpretation. In that case, the Court held that movements of capital are ‘financial operations essentially concerned with the investment of the funds in question rather than remuneration for a service’. However, the grant of loans is by nature a form of investment, in so far as such a transaction usually yields profit from interest. (15) Moreover, payment of the value of the loan after it has been granted likewise does not constitute remuneration for a service for the purposes of the free movement of payments, but is itself a movement of capital.

53.      It must now be examined in detail whether the rules on the free movement of capital are applicable to the grant of credit. Four different fundamental approaches to this issue can be found in the existing case-law of the Court.

54.      The first line of case-law comes from Svensson and Gustavsson (16) and Parodi, (17) both of which concern provisions constituting an obstacle to the grant of credit by banks, and from Commission v Italy. (18) Those judgments indicate that the current Articles 49 EC and 56 EC should be applied in parallel in the field of financial services. According to those judgments, therefore, the rules on the free movement of capital are to be taken into account alongside those governing the freedom to provide services.

55.      The Court takes a second, different line in Safir (19) and Ambry. (20) In the judgments in those cases, it applies the freedom to provide services as the sole criterion. Although the questions referred in those two cases related both to Article 49 EC and to Article 56 EC, it expressly left unanswered the question ‘whether such a rule is also contrary to Article 73b (now Article 56 EC)’. At first sight, this could be seen as a rejection of the applicability of the rules on the free movement of capital. (21)

56.      However, a closer analysis of the judgments in Safir and Ambry, in particular their wording (‘it is not necessary to determine’), shows that the Court certainly did not intend to rule out the application of Article 56 EC. (22)

57.      There is also the fact, in the context of Safir, that the question was framed in relation to the current Article 56 EC only as an alternative (‘or’) (23) to the rules on the freedom to provide services. Since the Court, in interpreting Article 49 EC, had already concluded that the national measure was incompatible with that very provision, there was no need for any further findings on the free movement of capital. Consequently, that case-law cannot be interpreted as rejecting the applicability of Article 56 EC.

58.      The same is true of Ambry. Here, although the question was framed cumulatively (‘and’), (24) the national measure was, once again, first found to be incompatible with Article 49 EC. Here too, therefore, further findings by the Court were not essential for the purposes of enabling the national court to give judgment in the proceedings it had stayed.

59.      Consequently, the judgments referred to in the foregoing points likewise do not preclude the applicability of the rules on the free movement of capital.

60.      In Sandoz (25) (concerning the treatment of loans concluded outside the national territory) and Reisch, (26) the Court interpreted only the current Article 56 EC, without making any further findings on Article 49 EC, the questions referred having been confined to the provisions on the free movement of capital. Under that case-law too, therefore, Article 56 EC et seq. can be assumed to be applicable to the grant of credit.

61.      Only the judgment in Bachmann (27) and a number of Opinions (28) which refer to it could be relied on in support of the argument that the rules on the free movement of capital are not applicable. There, the Court and the relevant Advocates General have stated that, in the event that the freedom to provide services and the free movement of capital are both potentially applicable, they are not in favour of account being taken of the latter if there is only an indirect infringement of Article 56 EC.

62.      It should be pointed out in this regard, first of all, that for the purposes of deciding under which fundamental freedom a situation should be classified, the criterion of indirect adverse effect or indirect infringement is not sufficiently clear-cut and is too vague. (29) However, even the case-law of the Court no longer requires that that criterion be used, the Court not having relied on it since the judgment in Bachmann. The same is true, moreover, of the ‘principal aspect’ criterion, which is used for the same purpose. Once again, therefore, this line of case-law at least does not preclude reliance on Article 56 EC.

63.      It can therefore be concluded that the relevant case-law of the Court supports the applicability of the rules on the free movement of capital to a situation such as that in the main proceedings.

64.      It remains to be examined whether reliance on Article 56 EC might be precluded by the provisions of Directive 2000/12. It is true that that directive is not applicable to the situation in question in these proceedings; (30) however, in view of its close connection with the economic activity at issue here, it must be taken into account.

65.      As is clear from Annex I, the directive regulates, inter alia, ‘[l]ending, including consumer credit’. As the legal basis for the directive, that is to say Article 47(2) EC, and recitals (14) and (19) in its preamble show, the directive classifies credit as falling within the scope of the freedom to provide services.

66.      That fact must now be considered from the point of view of any impact it might have on the applicability of Article 56 EC.

67.      While the choice for a provision of secondary law of a legal basis which expresses an attribution to a particular fundamental freedom may be significant for the purposes of classifying credit by reference to the fundamental freedom concerned, this does not mean that such a legislative measure is capable of restricting the scope of that or another fundamental freedom.

68.      Nor was that the intention of the Community legislature, as recital (18) in the preamble to Directive 2000/12 and the aforementioned Nomenclature in Annex I to Directive 88/361 show. According to these, the Community legislature classifies the grant of loans in secondary law as falling within the scope of both the free movement of capital and the freedom to provide services. Directive 2000/12 therefore supports the applicability of Article 56(1) EC for two reasons.

69.      It is also necessary to consider the view that the free movement of capital is applicable only to ‘asset transactions’ or an ‘asset transfer’ comparable with economic activity. Even if one were to share that view, this does not mean that the grant of credit is automatically excluded from the free movement of capital. The grant of credit does of course involve a transaction in respect of assets; it is, as was also expressly submitted at the hearing, a movement of capital. What else it is can, in view of the particular nature of the free movement of capital, be left unanswered. That said, it should be pointed out, for the sake of completeness, that there are other financial services which do not involve any movement of capital, such as those consisting exclusively in consultancy activities.

70.      It should also be pointed out in this connection that primary law contains express rules concerning the relationship between the free movement of capital and the freedom to provide services. Under Article 50 EC, the free movement of capital takes precedence over the freedom to provide services. It is that relationship of general rule to special rule underpinning primary law which comes into play in a situation such as that in the main proceedings. This means that, even where the economic activity of credit undertakings would, if considered in isolation, fall within the scope of the freedom to provide services, it falls in many respects exclusively within the scope of the free movement of capital, which takes precedence.

71.      That relationship of general rule to special rule also applies to third countries. This follows from the fact that, while the Treaty does lay down specific rules governing relations with third countries (Articles 57 EC, 59 EC and 60 EC), it contains no special provision on the rule of precedence. The Member States, as authors of the Treaties, evidently did not wish to provide for any derogation in this regard.

72.      Furthermore, as far as the particular measure adopted by the Member State is concerned, the free movement of capital must also remain applicable where the important factor is not the objectives it pursues but the effects it produces. In the main proceedings, those effects extend, inter alia, to the grant of credit. What particular degree of effect the measure has, for example whether it affects only specific categories of persons, or whether it is direct, is irrelevant.

73.      Furthermore, during the procedure before the Court, it was submitted that the free movement of capital covers only material measures. There is no support for this narrow interpretation in primary law. On the contrary, it follows from the Treaty that subjective measures, such as the supervision of financial institutions, are also capable of falling within the scope of the free movement of capital. Otherwise, the exception in Article 58(1)(b) EC would be superfluous.

74.      Finally, Article 57(1) EC (in so far as it relates to ‘Community law … including ... the provision of financial services…’) in conjunction with Article 49 EC likewise does not support any other conclusion. If reliance on Article 56 EC in relation to undertakings in third countries were automatically to be ruled out whenever another fundamental freedom is involved because of the subject-matter in question, the guarantees provided by the free movement of capital would be meaningless.

75.      It follows from the foregoing that an undertaking having its registered office outside the European Union, more specifically in the Swiss Confederation, can rely on the free movement of capital for the purposes of granting credit to residents of a Member State.

VI –  Second question

76.      By its second question, the referring court wishes to ascertain first of all, whether the fact that an undertaking chooses to have its registered office in a third country exclusively in order to grant credit to persons resident in Member States represents an abuse of rights because the undertaking does not require authorisation for that commercial activity in the third country. The question also asks whether the relevant Community law is to be interpreted as making it impossible for the undertaking to be treated in the same way as domestic undertakings in relation to the authorisation requirement.

A –    Main submissions of the parties

77.      With respect to the first part of the question, Fidium Finanz alone takes the view that it has not acted in abuse of its rights and refers in this regard to the case-law of the Court of Justice (31) to the effect that the choice of a registered office in a country with less stringent requirements concerning the taking up of a commercial activity than those in the target country does not in itself constitute an abuse of rights but merely the exercise of a fundamental freedom.

78.      On the other hand, BaFin and the German, Greek and Italian Governments and Ireland take the view in the alternative that, in the circumstances described in the order for reference, reliance on Article 56 EC must be regarded as an abuse of rights. In their submission, it follows from the settled case-law of the Court (32) that abusive reliance on Community law is not permitted. The Italian Government also refers in this regard to recital (9) in the preamble to Directive 2000/12. According to the Portuguese Government, there is no abuse of rights for the simple reason that no right has arisen under Article 56 EC. The Commission is of the opinion that, in view of the fourth and fifth questions, this question does not require an answer.

79.      Only BaFin and the Italian and Portuguese Governments have commented on the second part of the second question. In their view, Community law does not preclude equal treatment with respect to the authorisation requi