Lineas - Concessões de Transportes SGPS, S.A. and Others v Autoridade Tributária e Aduaneira (C-207/22)

Contents

Judgment of the Court (First Chamber)26 October 2023^note(Reference for a preliminary ruling — Economic and monetary policy — Supervision of the European Union’s financial sector — Directive 2013/36/EU — Regulation (EU) No 575/2013 — Financial institution — Concept — Undertaking whose activity is the acquisition of holdings)In Joined Cases C‑207/22, C‑267/22 and C‑290/22,THREE REQUESTS for a preliminary ruling under Article 267 TFEU from the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration – CAAD), Portugal) (C‑207/22 and C‑267/22), made by decisions of 24 February and 12 April 2022, received at the Court on 17 March and 20 April 2022, and from the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal) (C‑290/22), made by decision of 23 March 2022, received at the Court on 3 May 2022, in the proceedingsLineas – Concessões de Transportes SGPS SA (C‑207/22),Global Roads Investimentos SGPS Lda (C‑267/22),NOS-SGPS SA (C‑290/22)vAutoridade Tributária e Aduaneira,THE COURT (First Chamber),composed of A. Arabadjiev, President of the Chamber, L. Bay Larsen (Rapporteur), Vice-President of the Court, P.G. Xuereb, A. Kumin and I. Ziemele, Judges,Advocate General: L. Medina,Registrar: L. Carrasco Marco, Administrator,having regard to the written procedure and further to the hearing on 19 April 2023,after considering the observations submitted on behalf of:– Lineas – Concessões de Transportes SGPS SA, Global Roads Investimentos SGPS Lda and NOS-SGPS SA, by A. Fernandes de Oliveira, advogado,– the Portuguese Government, by P. Barros da Costa, H. Gomes Magno and A. Rodrigues, acting as Agents,– the European Commission, by I. Melo Sampaio, A. Nijenhuis, L. Santiago de Albuquerque and D. Triantafyllou, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 29 June 2023,gives the following

Judgment

1These requests for a preliminary ruling concern the interpretation of point 22 of Article 3(1) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338), and of point 26 of Article 4(1) 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 (OJ 2013 L 176, p. 1).

2The requests have been made in proceedings between Lineas – Concessões de Transportes SGPS SA, Global Roads Investimentos SGPS Lda and NOS-SGPS SA, on the one hand, and the Autoridade Tributária e Aduaneira (Customs and Tax Authority, Portugal), on the other, concerning the imposition of a tax on documented legal transactions involving credit.

Legal context

European Union law

Directive 2002/87/EC

3Directive 2002/87/EC of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate and amending Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC, and Directives 98/78/EC and 2000/12/EC of the European Parliament and of the Council (OJ 2003 L 35, p. 1), states, in point 15 of Article 2 thereof:‘For the purposes of this Directive:…15. “mixed financial holding company” shall mean a parent undertaking, other than a regulated entity, which together with its subsidiaries, at least one of which is a regulated entity which has its head office in the Community, and other entities, constitutes a financial conglomerate’.

Directive 2013/36

4Recitals 5 and 20 of Directive 2013/36 are worded as follows:(5) This Directive should constitute the essential instrument for the achievement of the internal market from the point of view of both the freedom of establishment and the freedom to provide financial services in the field of credit institutions.…(20) It is appropriate to extend mutual recognition to those activities where they are carried out by financial institutions which are subsidiaries of credit institutions, provided that such subsidiaries are covered by the consolidated supervision of their parent undertakings and meet certain strict conditions.’

5Article 1 of that directive provides:‘This Directive lays down rules concerning:(a) access to the activity of credit institutions and investment firms (collectively referred to as “institutions”);(b) supervisory powers and tools for the prudential supervision of institutions by competent authorities;(c) the prudential supervision of institutions by competent authorities in a manner that is consistent with the rules set out in Regulation (EU) No 575/2013;(d) publication requirements for competent authorities in the field of prudential regulation and supervision of institutions.’

6Under point 22 of Article 3(1) of that directive:‘For the purposes of this Directive, the following definitions shall apply:…(22) “financial institution” means financial institution as defined in point (26) of Article 4(1) of Regulation (EU) No 575/2013’.

7Article 5 of that directive states:‘Where Member States have more than one competent authority for the prudential supervision of credit institutions, investment firms and financial institutions, Member States shall take the requisite measures to organise coordination between such authorities.’

8Article 34 of Directive 2013/36 provides:1.Member States shall provide that the activities listed in Annex I may be carried out within their territories …, either by establishing a branch or by providing services, by any financial institution from another Member State, whether a subsidiary of a credit institution or the jointly owned subsidiary of two or more credit institutions, the memorandum and Articles of association of which permit the carrying out of those activities and which fulfils each of the following conditions:(a) the parent undertaking or undertakings are authorised as credit institutions in the Member State by the law of which the financial institution is governed;(b) the activities in question are actually carried out within the territory of the same Member State;(c) the parent undertaking or undertakings holds 90% or more of the voting rights attaching to shares in the capital of the financial institution;(d) the parent undertaking or undertakings satisfies the competent authorities regarding the prudent management of the financial institution and has declared, with the consent of the relevant home Member State competent authorities, that they jointly and severally guarantee the commitments entered into by the financial institution;(e) the financial institution is effectively included, for the activities in question in particular, in the consolidated supervision of the parent undertaking, or of each of the parent undertakings …The competent authorities of the home Member State shall check compliance with the conditions set out in the first subparagraph and shall supply the financial institution with a certificate of compliance …2. If a financial institution as referred to in the first subparagraph of paragraph 1 ceases to fulfil any of the conditions imposed, the competent authorities of the home Member State shall notify the competent authorities of the host Member State and the activities carried out by that financial institution in the host Member State shall become subject to the law of the host Member State.3. Paragraphs 1 and 2 shall apply accordingly to subsidiaries of a financial institution as referred to in the first subparagraph of paragraph 1.’

9Article 117(1) of that directive states:‘The competent authorities shall cooperate closely with each other. They shall provide one another with any information which is essential or relevant for the exercise of the other authorities’ supervisory tasks under this Directive and Regulation (EU) No 575/2013. In that regard, the competent authorities shall communicate on request all relevant information and shall communicate on their own initiative all essential information.…Information referred to in the first subparagraph shall be regarded as essential if it could materially influence the assessment of the financial soundness of an institution or financial institution in another Member State.…’

10Article 118 of that directive is worded as follows:‘Where, in applying this Directive and Regulation (EU) No 575/2013, the competent authorities of one Member State wish in specific cases to check the information concerning an institution, a financial holding company, a mixed financial holding company, a financial institution, an ancillary services undertaking, a mixed-activity holding company …, situated in another Member State, they shall ask the competent authorities of that other Member State to have that check carried out. …’

11Annex I to that directive establishes a list of activities subject to mutual recognition.

Regulation No 575/2013

12Recital 14 of Regulation No 575/2013 states:‘… The single rulebook ensures a robust and uniform regulatory framework facilitating the functioning of the internal market and prevents regulatory arbitrage opportunities. …’

13Under Article 1 of that regulation:‘This Regulation lays down uniform rules concerning general prudential requirements that institutions supervised under Directive 2013/36/EU shall comply with in relation to the following items:(a) own funds requirements relating to entirely quantifiable, uniform and standardised elements of credit risk, market risk, operational risk and settlement risk;(b) requirements limiting large exposures;(c) after the delegated act referred to in Article 460 has entered into force, liquidity requirements relating to entirely quantifiable, uniform and standardised elements of liquidity risk;(d) reporting requirements related to points (a), (b) and (c) and to leverage;(e) public disclosure requirements.…’

14Points 3, 20, 21, 26 and 27 of Article 4(1) of that regulation state:‘For the purposes of this Regulation, the following definitions shall apply:…(3) “institution” means a credit institution or an investment firm;…(20) “financial holding company” means a financial institution, the subsidiaries of which are exclusively or mainly institutions or financial institutions, at least one of such subsidiaries being an institution, and which is not a mixed financial holding company;(21) “mixed financial holding company” means mixed financial holding company as defined in point (15) of Article 2 of Directive 2002/87/EC;…(26) “financial institution” means an undertaking other than an institution, the principal activity of which is to acquire holdings or to pursue one or more of the activities listed in points 2 to 12 and point 15 of Annex I to Directive 2013/36/EU, including a financial holding company, a mixed financial holding company, a payment institution … and an asset management company, but excluding insurance holding companies and mixed-activity insurance holding companies …(27) “financial sector entity” means any of the following:(a) an institution;(b) a financial institution;…(d) an insurance undertaking;…’

15Article 18(1) of that regulation provides:‘The institutions that are required to comply with the requirements referred to in Section 1 on the basis of their consolidated situation shall carry out a full consolidation of all institutions and financial institutions that are its subsidiaries or, where relevant, the subsidiaries of the same parent financial holding company or mixed parent financial holding company. …’

16Article 36(1)(g), (h), (i) and (k) of Regulation No 575/2013 states:‘Institutions shall deduct the following from Common Equity Tier 1 items:…(g) direct, indirect and synthetic holdings of the Common Equity Tier 1 instruments of financial sector entities where those entities have a reciprocal cross holding with the institution that the competent authority considers to have been designed to inflate artificially the own funds of the institution;(h) the applicable amount of direct, indirect and synthetic holdings by the institution of Common Equity Tier 1 instruments of financial sector entities where the institution does not have a significant investment in those entities;(i) the applicable amount of direct, indirect and synthetic holdings by the institution of the Common Equity Tier 1 instruments of financial sector entities where the institution has a significant investment in those entities;…(k) the exposure amount of the following items which qualify for a risk weight of 1250%, where the institution deducts that exposure amount from the amount of Common Equity Tier 1 items as an alternative to applying a risk weight of 1250%:(i) qualifying holdings outside the financial sector;…’

17Article 56(c) and (d) of that regulation is worded as follows:‘Institutions shall deduct the following from Additional Tier 1 items:…(c) the applicable amount … of direct, indirect and synthetic holdings of the Additional Tier 1 instruments of financial sector entities, where an institution does not have a significant investment in those entities;(d) direct, indirect and synthetic holdings by the institution of the Additional Tier 1 instruments of financial sector entities where the institution has a significant investment in those entities, excluding underwriting positions held for five working days or fewer’.

18Article 66(b) to (d) of that regulation provides:‘The following shall be deducted from Tier 2 items:…(b) direct, indirect and synthetic holdings of the Tier 2 instruments of financial sector entities with which the institution has reciprocal cross holdings that the competent authority considers to have been designed to inflate artificially the own funds of the institution;(c) the applicable amount … of direct, indirect and synthetic holdings of the Tier 2 instruments of financial sector entities, where an institution does not have a significant investment in those entities;(d) direct, indirect and synthetic holdings by the institution of the Tier 2 instruments of financial sector entities where the institution has a significant investment in those entities, excluding underwriting positions held for fewer than five working days.’

19Under Article 89(1) to (3) of that regulation:1.A qualifying holding, the amount of which exceeds 15% of the eligible capital of the institution, in an undertaking which is not one of the following shall be subject to the provisions laid down in paragraph 3:(a) a financial sector entity;(b) an undertaking, that is not a financial sector entity, carrying on activities which the competent authority considers to be any of the following:(i) a direct extension of banking;(ii) ancillary to banking;(iii) leasing, factoring, the management of unit trusts, the management of data processing services or any other similar activity.2. The total amount of the qualifying holdings of an institution in undertakings other than those referred to in points (a) and (b) of paragraph 1 that exceeds 60% of its eligible capital shall be subject to the provisions laid down in paragraph 3.3.Competent authorities shall apply the requirements laid down in point (a) or (b) to qualifying holdings of institutions referred to in paragraphs 1 and 2:(a) for the purpose of calculating the capital requirement in accordance with Part Three, institutions shall apply a risk weight of 1250% to the greater of the following:(i) the amount of qualifying holdings referred to in paragraph 1 in excess of 15% of eligible capital;(ii) the total amount of qualifying holdings referred to in paragraph 2 that exceed 60% of the eligible capital of the institution;(b) the competent authorities shall prohibit institutions from having qualifying holdings referred to in paragraphs 1 and 2 the amount of which exceeds the percentages of eligible capital laid down in those paragraphs.Competent authorities shall publish their choice of (a) or (b).’

20Article 90 of Regulation No 575/2013 provides:‘As an alternative to applying a 1250% risk weight to the amounts in excess of the limits specified in Article 89(1) and (2), institutions may deduct those amounts from Common Equity Tier 1 items in accordance with point (k) of Article 36(1).’

Regulation (EU) 2019/876

21Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019 amending Regulation (EU) No 575/2013 as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements, and Regulation (EU) No 648/2012 (OJ 2019 L 150, p. 1), states, in point 2(a)(iii) of Article 1 thereof:‘Article 4 is amended as follows:(a) paragraph 1 is amended as follows:…(iii) point (26) is replaced by the following:(26) ‘financial institution’ means an undertaking other than an institution and other than a pure industrial holding company, the principal activity of which is to acquire holdings or to pursue one or more of the activities listed in points 2 to 12 and point 15 of Annex I to Directive 2013/36/EU, including a financial holding company, a mixed financial holding company, a payment institution … and an asset management company, but excluding insurance holding companies and mixed-activity insurance holding companies …”’.

22Article 3(3)(b) of Regulation 2019/876 is worded as follows:‘The following points of Article 1 of this Regulation shall apply from 27 June 2019:…(b) point (2), containing the definitions, unless they relate exclusively to provisions that apply in accordance with this Article from a different date, in which case they shall apply from such different date’.

Portuguese law

23Article 7(1)(e) of the Código do Imposto do Selo (Code on the tax on documented legal transactions) provides:‘The following shall also be exempt from tax:…(e) interest and commission charged, guarantees provided and the use of credit granted by credit institutions, financial corporations and financial institutions … to companies or institutions whose form and objects are of a type consistent with those of credit institutions, financial companies and financial institutions provided for in Community legislation, where all these are established in Member States of the European Union or in another State …’

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

Case C‑207/22

24Lineas – Concessões de Transportes SGPS is a holding company established in Portugal, the corporate object of which is to manage holdings in other companies. It has holdings in companies which manage transport infrastructure.

25In the course of its activity, that holding company sought financing from credit institutions. Those institutions paid the tax on documented legal transactions involving credit and transferred the charge to that holding company.

26That company objected to paying that tax on documented legal transactions and brought a request for an ex officio review concerning the periods from April 2015 to January 2016 and an administrative appeal concerning the periods from June 2017 to December 2017.

27The tax authorities refused that request and dismissed that appeal by decisions against which Lineas – Concessões de Transportes SGPS brought appeals which were themselves dismissed by orders of 17 July 2020.

28On 21 October 2020, that company submitted a request to the Centro de Arbitragem Administrativa – CAAD (Centre for Administrative Arbitration, Portugal) for the establishment of an arbitral tribunal and a request seeking annulment of those orders.

29The Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration), Portugal), which is the referring court in Case C‑207/22, finds that it is apparent from the Portuguese legislation that the tax on documented legal transactions involving credit is not applicable to financial institutions, within the meaning of EU legislation.

30However, there are divergences in the national case-law as regards the concept of ‘financial institution’. In that respect, the referring court considers it necessary to establish whether that concept applies to all holding companies which are not involved in the insurance sector or whether it refers only to holding companies which have holdings in companies that are subject to the supervision and prudential requirements applicable to banking activities.

31In those circumstances the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration)) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘May a holding company which has as its sole object the management of shareholdings in other companies, as an indirect means of pursuing economic activities, and which, in that context, acquires and holds on a long-term basis such shareholdings, which, in general, are at least 10% of the share capital of the companies in which it has a shareholding, where the activity of those companies comes within the category of transport infrastructure management, including the design, construction and management of roads and/or motorways, be regarded as a “financial institution” within the meaning of Directive [2013/36] and Regulation [No 575/2013]?’

Case C‑267/22

32Global Roads Investimentos SGPS is a holding company established in Portugal.

33In the course of its activity, that holding company sought financing from credit institutions. Those institutions paid the tax on documented legal transactions involving credit and transferred the charge to that holding company.

34On 28 December 2018, that holding company brought a request for an ex officio review of that tax on documented legal transactions.

35That request was refused by a decision of the tax authorities of 21 November 2019. Global Roads Investimentos SGPS brought an appeal against that decision, which was dismissed by an order of 5 August 2021.

36On 20 January 2022, that company submitted a request to the Centre for Administrative Arbitration – CAAD for the establishment of an arbitral tribunal and a request seeking annulment of that order.

37The Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration)), which is the referring court in Case C‑267/22, considers, for the reason indicated in paragraphs 29 and 30 above, that the outcome of the dispute in the main proceedings depends on whether a holding company can be classified as a ‘financial institution’ within the meaning of Directive 2013/36 and of Regulation No 575/2013.

38In those circumstances the Tribunal Arbitral Tributário (Centro de Arbitragem Administrativa – CAAD) (Tax Arbitration Tribunal (Centre for Administrative Arbitration)) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Is a holding company established in Portugal … which has as its sole object the management of shareholdings in other companies, as an indirect means of pursuing economic activities, and which, in that context, acquires and holds on a long-term basis such shareholdings, which, in general, amount to at least 10% of the share capital of the companies in which it has a shareholding, where those companies do not operate in the insurance or financial sectors, covered by the definition of “financial institution” within the meaning of point 22 of Article 3(1) of Directive [2013/36] and point 26 of Article 4(1) of Regulation [No 575/2013]?’

Case C‑290/22

39NOS-SGPS is a holding company established in Portugal.

40In the course of its activity, that holding company sought financing from credit institutions. Those institutions paid the tax on documented legal transactions involving credit and transferred the charge to that holding company.

41That company objected to paying that tax on documented legal transactions and brought a request for an ex officio review on 22 January 2019 and an administrative appeal on 23 January 2019 concerning the periods from January 2015 to October 2016 and from March 2017 to October 2018 respectively.

42Those appeals were dismissed by a decision of the tax authorities of 27 September 2019.

43NOS-SGPS submitted a request to the Centre for Administrative Arbitration – CAAD, which rejected its claims by a decision of 6 January 2021.

44That company took the view that that arbitration decision was contrary to a final arbitration decision on the same fundamental point of law and brought an appeal for the purposes of unification of precedent before the Supremo Tribunal Administrativo (Supreme Administrative Court, Portugal), which is the referring court in case C‑290/22.

45That court notes that the Portuguese legislature chose, when delimiting the exemption from the tax on documented legal transactions involving credit, such as those at issue in the cases in the main proceedings, to refer expressly to the type and form of financial institution referred to in ‘Community legislation’.

46In those circumstances the Supremo Tribunal Administrativo (Supreme Administrative Court) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Does a holding company domiciled in Portugal …, the sole object of which is to manage shareholdings in companies other than those operating in the insurance sector, fall within the concept of “financial institution” within the meaning of point 22 of Article 3(1) of Directive [2013/36] and point 26 of Article 4(1) of Regulation [No 575/2013]?’

The jurisdiction of the Court

47It is apparent from the decisions to refer that the disputes at issue in the main proceedings concern the application of national tax legislation which does not come within the scope of either Directive 2013/36 or Regulation No 575/2013.

48In accordance with Article 267 TFEU, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and acts of the EU institutions. In the context of cooperation between the Court and the national courts, established in Article 267 TFEU, it is for the national courts alone to assess, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, obliged to give a ruling (judgment of 30 January 2020, I.G.I., C‑394/18, EU:C:2020:56, paragraph 44 and the case-law cited).

49Applying that case-law, the Court has repeatedly held that it has jurisdiction to give preliminary rulings on questions concerning provisions of EU law in situations where the facts in the main proceedings fell outside the scope of EU law, but where the provisions of EU law had been rendered applicable by national law, which, in dealing with situations outside the scope of EU law, followed the same approach as that provided for by the latter (judgments of 19 October 2017, Europamur Alimentación, C‑295/16, EU:C:2017:782, paragraph 29, and of 30 January 2020, I.G.I., C‑394/18, EU:C:2020:56, paragraph 45 and the case-law cited).

50However, the referring courts have stated that the Portuguese legislation at issue in the main proceedings allows the tax exemption claimed by the applicants in the main proceedings to apply only to ‘financial institutions’ and that that legislation defines that concept by direct and unconditional reference to EU law.

51It follows that the Court has jurisdiction to answer the questions referred.

Consideration of the questions referred

52By their questions, which it is appropriate to examine together, the referring courts ask, in essence, whether point 22 of Article 3(1) of Directive 2013/36 and point 26 of Article 4(1) of Regulation No 575/2013 must be interpreted as meaning that an undertaking, the activity of which is to acquire holdings in companies which do not carry out activities in the financial sector, is included within the concept of ‘financial institution’ within the meaning of that directive and of that regulation.

53According to settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union; that interpretation must take into account not only its wording but also its context and the objective pursued by the legislation in question (see, to that effect, judgment of 30 March 2023, M. Ya. M. (Co-heir’s waiver of succession), C‑651/21, EU:C:2023:277, paragraph 41 and the case-law cited).

54As regards, in the first place, the wording of point 22 of Article 3(1) of Directive 2013/36, that provision states that, for the purposes of that directive, ‘financial institution’ must be understood as a financial institution as defined in point 26 of Article 4(1) of Regulation No 575/2013.

55Point 26 of Article 4(1) of that regulation, read in conjunction with point 3 of Article 4(1) thereof, states that, for the purposes of that regulation, a ‘financial institution’ is defined as an undertaking other than a credit institution or an investment firm, the principal activity of which is to acquire holdings or to pursue one or more of the activities listed in points 2 to 12 and point 15 of Annex I to Directive 2013/36, including a financial holding company, a mixed financial holding company, a payment institution and an asset management company. On the other hand, point 26 of Article 4(1) of that regulation excludes insurance holding companies and mixed-activity insurance holding companies from the concept of ‘financial institution’.

56That provision thus generally includes undertakings whose principal activity is to acquire holdings within the concept of ‘financial institution’ for the purposes of that regulation and, in the version applicable on the dates relevant for the cases in the main proceedings, excludes from that concept only credit institutions, investment firms and certain holding companies involved in the insurance sector.

57In that regard, it should be stated that, although point 2(a)(iii) of Article 1 of Regulation 2019/876 provides for a new draft of point 26 of Article 4(1) of Regulation No 575/2013 which also excludes pure industrial holding companies from the concept of ‘financial institution’ within the meaning of that regulation, it is apparent from the order for reference in case C‑290/22 that that new draft is not applicable ratione temporis to the cases in the main proceedings.

58Moreover, although the wording of point 26 of Article 4(1) of Regulation No 575/2013 refers to undertakings whose principal activity is to acquire holdings or to pursue one or more of the activities listed in points 2 to 12 and point 15 of Annex I to Directive 2013/36, activities which involve the financial sector, the use of the conjunction ‘or’ indicates that the EU legislature did not intend to make the carrying out of one or more of those activities by the undertaking itself a criterion for defining the concept of ‘financial institution’ for the purposes of Regulation No 575/2013.

59That being so, it must also be pointed out that it is apparent from the wording of point 26 of Article 4(1) of Regulation No 575/2013 that financial holding companies and mixed financial holding companies must be regarded as being ‘financial institutions’ for the purposes of that regulation.

60However, first, point 20 of Article 4(1) of that regulation specifies that, for the purposes of that regulation, a ‘financial holding company’ is defined as a financial institution which is not a mixed financial holding company and whose subsidiaries are exclusively or mainly credit institutions, investment firms or financial institutions, at least one of such subsidiaries being a credit institution or an investment firm.

61Secondly, it follows from point 21 of Article 4(1) of Regulation No 575/2013, read in conjunction with point 15 of Article 2 of Directive 2002/87, that a parent undertaking, other than a credit institution, an insurance undertaking or an investment firm, which together with its subsidiaries, at least one of which is a credit institution, an insurance undertaking or an investment firm, and other entities, constitutes a financial conglomerate and must be regarded as being a ‘mixed financial holding company’ for the purposes of that regulation.

62It is thus apparent that financial holding companies and mixed financial holding companies are types of precisely defined companies characterised both by the fact that their principal activity is to acquire holdings and by the existence of specific links with a credit institution, an insurance undertaking or an investment firm.

63Accordingly, the explicit reference to financial holding companies and to mixed financial holding companies in point 26 of Article 4(1) of Regulation No 575/2013 would serve no purpose if that provision were to be understood as automatically including all companies whose principal activity is to acquire holdings within the concept of ‘financial institution’ for the purposes of that regulation merely because it refers to companies which carry out such a principal activity.

64However, as was noted by the Advocate General in point 41 of her Opinion, it is apparent from the very wording of point 26 of Article 4(1) of Regulation No 575/2013 that the list of financial institutions set out in that provision is not exhaustive. Therefore, it cannot be inferred from the reference to financial holding companies and to mixed financial holding companies in that provision that the lack of certain specific links with a credit institution, an insurance undertaking or an investment firm necessarily precludes classification as a ‘financial institution’ for the purposes of that regulation.

65In the second place, the context surrounding point 22 of Article 3(1) of Directive 2013/36 and point 26 of Article 4(1) of Regulation No 575/2013 shows that the EU legislature defined the scheme applicable to financial institutions on the basis that those institutions were connected to the carrying out of certain activities involving the financial sector.

66First of all, the main aspect of the scheme relevant to financial institutions established by Directive 2013/36 concerns the option that they have to carry out activities involving the financial sector of another Member State in line with the freedom of establishment and the freedom to provide services.

67Article 34 of that directive, which is entitled ‘Financial institutions’ and is the only article in that directive that relates solely to financial institutions, permits, under certain conditions, such institutions to carry out the activities referred to in Annex I to that directive in another Member State. That article thus gives concrete expression to the principle set out in recital 20 of that directive, according to which it is appropriate to extend mutual recognition to certain financial activities under certain conditions when they are carried out by financial institutions which are subsidiaries of credit institutions.

68Accordingly, the classification of an undertaking as a ‘financial institution’ within the meaning of Directive 2013/36 is irrelevant for the purposes of applying Article 34 thereof if that undertaking does not intend to carry out activities involving the financial sector.

69Secondly, Regulation No 575/2013, for the purposes of applying the prudential requirements imposed by that regulation, provides for the consequences of a given undertaking being classified as a ‘financial institution’.

70More precisely, it is apparent from Article 18(1) of that regulation that the credit institutions and investment firms that are required to comply with the requirements of that regulation on the basis of their consolidated situation are to carry out, as a rule, a full consolidation of, inter alia, all institutions and financial institutions that are their subsidiaries or, where relevant, the subsidiaries of the same parent financial holding company or of the mixed parent financial holding company.

71By contrast, that provision does not require a prudential consolidation including all the subsidiaries of the institutions and investment firms.

72In addition, it follows from point 27 of Article 4(1) of Regulation No 575/2013 that financial institutions are ‘financial sector entities’ similar to, inter alia, credit institutions, investment firms and insurance undertakings.

73However, it is apparent from Article 36(1)(g) to (i), Article 56(c) and (d) and Article 66(b) to (d) of that regulation that investments made by credit institutions and investment firms in financial sector entities are subject to a specific scheme involving, in particular, certain deductions from the own funds of those institutions and firms.

74The qualifying holdings of credit institutions and investment firms outside the financial sector are, by contrast, governed by different rules provided for, inter alia, in Article 36(1)(k) and Articles 89 and 90 of that regulation, rules which may, in particular, involve weighting those holdings by risk for the purpose of calculating capital requirements or prohibiting the credit institution or investment firm concerned from having such holdings in amounts which exceed certain percentages of its own funds.

75It follows from the foregoing that Regulation No 575/2013 establishes rules concerning the consolidation and prudential requirements for credit institutions and investment firms which, to the extent that they are specific to holdings in financial institutions or other financial sector entities and differ from the rules applicable to holdings outside the financial sector, may be regarded as being based on the consideration of the specific nature of that sector’s activities.

76However, that logic would be challenged if the rules specific to holdings in financial sector entities were to be applied to a holding of a credit institution or investment firm outside that sector merely because that holding is controlled through a subsidiary of that institution or firm, the principal activity of which is to acquire holdings.

77Lastly, Article 5 of Directive 2013/36 provides for the coordination, at national level, of the activities of authorities competent for the supervision not only of credit institutions and investment firms, but also of financial institutions, thereby establishing a link between the prudential supervision of the financial sector and the supervision of financial institutions.

78Similarly, Article 117(1) and Article 118 of that directive set out cooperation obligations between the competent authorities of the Member States which are applicable to financial institutions, without that scheme being extended to entities not involved in the financial sector in which a credit institution or investment firm has a holding.

79In the third place, it follows from Article 1 of Directive 2013/36 and from Article 1 of Regulation No 575/2013 that those acts are intended to establish the rules concerning access to the activity, surveillance and various requirements applicable to credit institutions and investment firms. It is also apparent from recital 5 of that directive and from recital 14 of that regulation that those acts aim, inter alia, to contribute to the achievement of the internal market in the field of credit institutions.

80It follows from all of the foregoing that an undertaking whose principal activity is not linked to the financial sector, to the extent that it does not carry out, either directly or through holdings, one or more activities referred to in Annex I to Directive 2013/36 cannot be regarded as being a financial institution within the meaning of Directive 2013/36 and of Regulation No 575/2013.

81Consequently, the answer to the questions referred is that point 22 of Article 3(1) of Directive 2013/36 and point 26 of Article 4(1) of Regulation No 575/2013 must be interpreted as meaning that an undertaking, the activity of which is to acquire holdings in companies which do not carry out activities in the financial sector, is not included within the concept of ‘financial institution’ within the meaning of that directive and of that regulation.

Costs

82Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring 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.

Operative part

On those grounds, the Court (First Chamber) hereby rules: Point 22 of Article 3(1) of Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC, and point 26 of Article 4(1) 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,must be interpreted as meaning that an undertaking, the activity of which is to acquire holdings in companies which do not carry out activities in the financial sector, is not included within the concept of ‘financial institution’ within the meaning of that directive and of that regulation.