Contents
Judgment of the Court (Fifth Chamber)21 December 2023note(Reference for a preliminary ruling — Freedom of establishment — Freedom to provide services — Directive 2006/123/EC — Article 2(2)(b) — Scope — Exclusion of financial services — Long-term rental of motor vehicles — Articles 9(1) and 10(1) and (2) — Services subject to prior authorisation)In Case C‑278/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Upravni sud u Zagrebu (Administrative Court, Zagreb, Croatia), made by decision of 12 April 2022, received at the Court on 22 April 2022, in the proceedingsAUTOTECHNICA FLEET SERVICES d.o.o., formerly ANTERRA d.o.o.,vHrvatska agencija za nadzor financijskih usluga,THE COURT (Fifth Chamber),composed of E. Regan, President of the Chamber, L. Bay Larsen, Vice-President of the Court, acting as Judge of the Fifth Chamber, M. Ilešič, I. Jarukaitis and D. Gratsias (Rapporteur), Judges,Advocate General: M. Szpunar,Registrar: M. Longar, Administrator,having regard to the written procedure and further to the hearing on 1 March 2023,after considering the observations submitted on behalf of:– AUTOTECHNICA FLEET SERVICES d.o.o., by G. Božić, odvjetnik, A. Komninos, dikigoros, D. Simeunović, odvjetnica and J. Tomas, odvjetnik,– the Hrvatska agencija za nadzor financijskih usluga, by K. Brkljačić and I. Budiša,– the Croatian Government, by G. Vidović Mesarek, acting as Agent,– the Netherlands Government, by M. K. Bulterman and J. Langer, acting as Agents,– the European Commission, by C. Auvret, M. Mataija, R. Mrljić, A. Nijenhuis and D. Triantafyllou, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 11 May 2023,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Article 49 TFEU, Article 2(2) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), and Article 4(1)(26) 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 request has been made in proceedings between AUTOTECHNICA FLEET SERVICES d.o.o., formerly ANTERRA d.o.o. (‘Autotechnica’) and the Hrvatska agencija za nadzor financijskih usluga Republike Hrvatske (Croatian Agency for the Supervision of Financial Services of the Republic of Croatia; ‘the Agency’), concerning a decision prohibiting Autotechnica from carrying out leasing activities without first obtaining authorisation from the Agency.
Legal context
European Union law
Directive 2006/123
3Recitals 18, 33 and 54 of Directive 2006/123 state:(18) Financial services should be excluded from the scope of this Directive since these activities are the subject of specific Community legislation aimed, as is this Directive, at achieving a genuine internal market for services. Consequently, this exclusion should cover all financial services such as banking, credit, insurance, including reinsurance, occupational or personal pensions, securities, investment funds, payments and investment advice, including the services listed in Annex I to Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions [(OJ 2006 L 177, p. 1)].…(33) The services covered by this Directive concern a wide variety of ever-changing activities … The services covered are also services provided both to businesses and to consumers, such as … car rental ……(54) The possibility of gaining access to a service activity should be made subject to authorisation by the competent authorities only if that decision satisfies the criteria of non-discrimination, necessity and proportionality. That means, in particular, that authorisation schemes should be permissible only where an a posteriori inspection would not be effective because of the impossibility of ascertaining the defects of the services concerned a posteriori, due account being taken of the risks and dangers which could arise in the absence of a prior inspection. …’
4As provided for by Article 1(1) thereof, that directive establishes general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services.
5Article 2 of that directive provides, in paragraphs 1 and 2 thereof:1. This Directive shall apply to services supplied by providers established in a Member State.2.This Directive shall not apply to the following activities:…(b) financial services, such as banking, credit, insurance and re-insurance, occupational or personal pensions, securities, investment funds, payment and investment advice, including the services listed in Annex I to Directive [2006/48];…’
6Article 4 of Directive 2006/123, entitled ‘Definitions’, is worded as follows:‘For the purposes of this Directive, the following definitions shall apply:(1) “service” means any self-employed economic activity, normally provided for remuneration, as referred to in Article [57 TFEU];…(6) “authorisation scheme” means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity or the exercise thereof;…(8) “overriding reasons relating to the public interest” means reasons recognised as such in the case-law of the Court of Justice, including the following grounds: public policy; public security; public safety; public health; preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; fairness of trade transactions; combating fraud; the protection of the environment and the urban environment; the health of animals; intellectual property; the conservation of the national historic and artistic heritage; social policy objectives and cultural policy objectives;…’
7Article 9 of Directive 2006/123, entitled ‘Authorisation schemes’, provides:1.Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied:(a) the authorisation scheme does not discriminate against the provider in question;(b) the need for an authorisation scheme is justified by an overriding reason relating to the public interest;(c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because an a posteriori inspection would take place too late to be genuinely effective.…3. This section shall not apply to those aspects of authorisation schemes which are governed directly or indirectly by other Community instruments.’
8Article 10 of that directive, entitled ‘Conditions for the granting of authorisation’, provides, in paragraphs 1 and 2 thereof:1. Authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.2.The criteria referred to in paragraph 1 shall be:(a) non-discriminatory;(b) justified by an overriding reason relating to the public interest;(c) proportionate to that public interest objective;(d) clear and unambiguous;(e) objective;(f) made public in advance;(g) transparent and accessible.’
9Articles 11 to 13 of that directive concern the duration of the authorisation, selection from among several candidates and authorisation procedures.
Directive 2013/36/EU
10Pursuant to Article 163 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), Directive 2006/48 has been repealed. It is apparent from Article 163, read in conjunction with Annex II to Directive 2013/36, that references to Annex I to Directive 2006/48 must be construed as references to Annex I to Directive 2013/36. That annex is entitled ‘List of activities subject to mutual recognition’ and refers, in point 3 thereof, to ‘financial leasing’.
Regulation No 575/2013
11Article 1 of Regulation No 575/2013 concerns uniform rules regarding general prudential requirements which all institutions supervised under Directive 2013/36 must comply with.
12The term ‘financial institution’, for the purposes of that regulation, is defined in Article 4(1)(26) thereof.
Croatian law
The Law on the Croatian Agency for the Supervision of Financial Services
13Article 15(1) of the Zakon o Hrvatskoj agenciji za nadzor financijskih usluga (Law on the Croatian Agency for the Supervision of Financial Services) (Narodne novine, br. 140/05, 154/11 and 12/12) provides that the Agency is empowered to adopt implementing provisions, that is provisions concerning, inter alia, financial services. Pursuant to Article 15(2), the Agency is empowered to supervise the activities of the supervised entities referred to in paragraph 1 of that article and to impose measures to remedy illegalities and irregularities found.
The Leasing Law
14Under Article 2(4) of the Zakon o leasingu (Leasing Law) (Narodne novine, br. 141/13), a ‘leasing company’ of a Member State is a legal person established in a Member State which is authorised, in accordance with the law of that Member State, to carry out leasing activities.
15Article 3(1) of that law defines a leasing company as a commercial company established in Croatia, entered in the companies register on the basis of an authorisation to carry out leasing activities issued by the Agency under the conditions laid down by that law.
16Article 4(1) of that law provides that a leasing transaction is a legal transaction under which a lessor purchases the leased asset and accordingly, by that purchase, it acquires from the supplier of that asset its ownership and authorises the lessee to use the leased asset for a certain period of time, use for which the lessee undertakes to pay a fee.
17Article 5(1) of the Leasing Law provides that, depending on the content and characteristics of the leasing transaction, the lease is a ‘financial leasing (financijski leasing)’ or an ‘operating leasing (operativni leasing)’.
18‘Financial leasing’ is defined in Article 5(2) of the Leasing Law as being a legal transaction whereby the lessee, during the period of use of the leased asset, pays to the lessor a fee based on the total value of the leased asset, bears the cost of amortisation of the leased asset, and by means of a buy-out option may acquire ownership of the leased asset for a fixed price which, at the point in time that option is exercised, is less than the actual value of the leased asset at that time, and the risks and benefits of ownership of the leased asset are largely transferred to the lessee.
19Article 5(3) of the Leasing Law provides that an ‘operating leasing’ transaction is a legal transaction whereby the lessee, during the period of use of the leased asset, pays a specified fee to the lessor, which need not take into account the total value of the leased asset, the lessor bears the cost of amortisation of the leased asset and the lessee does not have a contractual buy-out option, and the risks and benefits of ownership of the leased asset largely remain with the lessor, that is to say, they are not transferred to the lessee.
20Article 6(1) of the Leasing Law provides that leasing activities may be carried out by a leasing company referred to in Article 3 of that law, a leasing company from a Member State referred to in Article 46 of that law, and a branch of a leasing company from a third country referred to in Article 48 of that law.
The dispute in the main proceedings and the questions referred for a preliminary ruling
21Autotechnica is a company registered in Croatia for carrying out activities of ‘leasing of motor vehicles’, ‘rental of cars and lorries (with or without a driver), and leasing of those vehicles’ and ‘rental and leasing of bicycles, scooters, and similar vehicles’. It is the subsidiary of a parent company established in another Member State of the European Union providing services of the same type in that Member State.
22In the course of an inspection of Autotechnica, the Agency found that that company had entered into three long-term rental agreements in relation to a total of four vehicles and that, subsequently, at the express request of its customers, it purchased those vehicles from the supplier, so that it became their owner and made them available to customers for their use.
23In the light of those factors, the Agency took the view that Autotechnica was carrying out a leasing activity, within the meaning of the Leasing Law, without a valid authorisation. By decision of 14 February 2019, it therefore prohibited Autotechnica from carrying out such an activity.
24Autotechnica brought an action before the Upravni sud u Zagrebu (Administrative Court, Zagreb, Croatia) seeking the annulment of that decision. It alleges infringement of its rights under EU law, and claims that the Republic of Croatia could not treat operating leasing like a financial service, with the result that the provision of such services should not be subject to supervision by the Agency.
25The referring court notes that the Croatian version of Annex I to Directive 2013/36 refers only to ‘financijski lizing (financial leasing)’ and does not cover ‘operativni lizing (operating leasing)’; the provisions of Directive 2006/123 should therefore be applied to operating leasing by reasoning a contrario. It is apparent from recital 33 and Article 2 of Directive 2006/123 that it covers a wide variety of services, including car rental, which can be regarded as an operating leasing service.
26The referring court adds that the Croatian legislation at issue in the main proceedings is liable to prevent or deter Autotechnica and persons established in other Member States wishing to establish themselves in Croatia from carrying out commercial rental or operating leasing activities, with the result that that legislation may be contrary to the requirements arising from Article 49 TFEU.
27In those circumstances, the Upravni sud u Zagrebu (Administrative Court, Zagreb) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1)(a) Do operating leasing and/or long-term car rental services fall within the scope of Directive [2006/123], as indicated in the Handbook on implementation of [Directive 2006/123] of 13 March 2008 issued by the [European Commission’s] Directorate-General for Internal Market and Services?(b) Should an entity that engages in operating leasing (but not financial leasing) and/or long-term car rental be considered a financial institution within the meaning of Article 4(1)(26) of Regulation [No 575/2013]?(2) If the answer to the [first part of the] first question above is in the affirmative and the answer to the second [part of that] question is in the negative, is granting the [Agency] the power to supervise the provision of operating leasing and/or long-term car rental services pursuant to Article 6(1) of the Leasing Law, and to impose additional requirements and restrictions on undertakings that engage in such activities compatible with Article 49 [TFEU], read in conjunction with Articles 9 to 13 of [Directive 2006/123]?(3) Must Article 49 [TFEU] and Articles 9 to 13 of [Directive 2006/123], in circumstances such as those at issue in the present dispute, in which a parent company from one Member State wishes to provide in another Member State, through a subsidiary, services of the same type as those which it provides in the original Member State, be interpreted as permitting a national law (the Leasing Law) to impose additional requirements and restrictions on the subsidiary and thereby hinder [and/or] render less attractive engaging in the activity in question?’
Admissibility of the request for a preliminary ruling
28In their observations, the Agency and the Croatian Government expressed doubts as to the admissibility of the request for a preliminary ruling on the ground that, in their view, all the elements of the case in the main proceedings are confined to a single Member State, in this case the Republic of Croatia.
29In the first place, as regards Article 49 TFEU, it is apparent from the case-law of the Court that freedom of establishment, enshrined in that article, includes, in accordance with Article 54 TFEU, for companies established in accordance with the legislation of a Member State and having their registered office, central administration or principal place of business within the European Union, the right to exercise their activity in other Member States through, inter alia, a subsidiary (see, to that effect, judgment of 20 January 2021, Lexel, C‑484/19, EU:C:2021:34, paragraph 33 and the case-law cited).
30In the present case, it is common ground that Autotechnica is the subsidiary of a company incorporated in a Member State other than the Republic of Croatia. Consequently, it cannot be claimed that all the elements of the dispute in the main proceedings are confined to a single Member State or that the second and third questions, in so far as they refer to Article 49 TFEU, are hypothetical. Accordingly, the reference for a preliminary ruling is admissible as regards Article 49 TFEU.
31In the second place, the request for a preliminary ruling also cannot be declared inadmissible in so far as it relates to Directive 2006/123. On any view, Articles 9 to 13 of that directive, referred to in the second and third questions referred, also apply to a situation where all the elements are confined to a single Member State (see, to that effect, judgment of 4 July 2019, Kirschstein, C‑393/17, EU:C:2019:563, paragraph 24 and the case-law cited).
32In the third place, it should be recalled that, in order to enable the Court to give an interpretation of EU law that is useful to the national court, the request for a preliminary ruling must, under Article 94(c) of the Rules of Procedure of the Court of Justice, contain a statement of the reasons which prompted the referring court to inquire about the interpretation or validity of certain provisions of EU law, and the relationship between those provisions and the national legislation applicable to the main proceedings (see, to that effect, judgment of 26 January 2023, Ministerstvo na vatreshnite raboti (Recording of biometric and genetic data by the police), C‑205/21, EU:C:2023:49, paragraph 55 and the case-law cited).
33In the present case, the referring court has not complied with that obligation, so far as concerns the interpretation of Article 4(1)(26) of Regulation No 575/2013, referred to in the second part of the first question. That court has in no way explained what relationship it establishes between that provision and the national legislation applicable to the dispute in the main proceedings.
34It must be observed, in that regard, that the concept of ‘financial institution’ is defined in Article 4(1)(26) of Regulation No 575/2013 for the purposes of applying that regulation, which, as stated in Article 1 thereof, lays down uniform rules concerning general prudential requirements which all institutions supervised under Directive 2013/36 must comply with. It is not apparent from the order for reference that the case in the main proceedings concerns compliance with such requirements.
35It follows that the second part of the first question is inadmissible.
Consideration of the questions referred
The first part of the first question
36As a preliminary point, in so far as the wording of the first part of the first question refers to ‘operating leasing and/or long-term car rental services’, it should be noted that, as is apparent from the order for reference, national law draws a distinction between operating leasing and financial leasing. Unlike financial leasing, operating leasing constitutes a specific form of motor vehicle rental, characterised by the fact that the lessor acquires the leased asset at the request of the lessee with a view to leasing it to that lessee, in return for payment of a fee, which does not take into account the total value of that asset, since the cost of amortisation is not borne by the lessee, who also does not have a buy-out option at the end of the lease period.
37By the first part of its first question, the referring court asks, in substance, whether Article 2(2)(b) of Directive 2006/123 must be interpreted as meaning that services provided under a contract for the long-term rental of motor vehicles acquired by the lessor at the request of the lessee with a view to leasing them to the latter in return for payment of a fee constitute ‘financial services’ within the meaning of that provision.
38It is clear from Article 2(2)(b) of Directive 2006/123 that that directive does not apply to financial services such as those relating inter alia to credit, including the services listed in Annex I to Directive 2006/48.
39So far as concerns the concept of ‘financial services’, it should be noted that it is not defined either in that directive or indirectly by reference to the national laws of the Member States. Thus, that concept must be regarded as an autonomous concept of EU law, which must be interpreted in an uniform manner throughout the territory of the European Union, taking into consideration not only the wording of Article 2(2)(b) of Directive 2006/123, but also the context of that provision and the objectives pursued by the rules of which it forms part (see, to that effect, judgment of 22 December 2022, EUROAPTIEKA, C‑530/20, EU:C:2022:1014, paragraph 31 and the case-law cited).
40First, in so far as that provision mentions, among the examples it lists, services of a credit nature, it must be noted that Directive 2006/123 does not contain a definition of the term ‘credit’. However, in everyday legal language, that term refers to the provision of a sum of money or deferred payment terms or financial accommodation by the lender to the borrower for financing or deferred payment purposes, with the result that a credit agreement must be regarded as an agreement whereby a creditor grants or promises to grant, to a consumer, credit in the form of a deferred payment, loan or other similar financial accommodation (judgment delivered today, BMW and Others, C‑38/21, C‑47/21 and C‑232/21, paragraph 144).
41It follows that a financial services agreement of a credit nature is characterised by the fact that it falls within the logic of financing or deferred payment, by means of funds or deferred payment or financial accommodation made available to the consumer by the trader for that purpose (judgment delivered today, BMW and Others, C‑38/21, C‑47/21 and C‑232/21, paragraph 145).
42In order to determine whether a contract for the long-term rental of motor vehicles is of a credit nature and, therefore, concerns the provision of financial services, for the purposes of Article 2(2)(b) of Directive 2006/123, regard must be had to its main purpose, in order to ascertain whether the credit element takes precedence over the rental element or whether the opposite is the case (see, by analogy, judgment delivered today, BMW and Others, C‑38/21, C‑47/21 and C‑232/21, paragraph 147).
43Thus, a contract for the long-term rental of motor vehicles under which the consumer must pay a rental fee in return for the right to use the vehicle cannot be classified as a ‘financial services contract’, provided that it is not accompanied by an obligation to purchase the vehicle at the end of the leasing period, that the consumer does not bear the full amortisation of the costs incurred by the supplier of the vehicle in acquiring it and that he or she does not bear the risks associated with the residual value of the vehicle on expiry of the contract. The obligation on the consumer to compensate for the loss in value of the vehicle if it is established, when the vehicle is returned, that its condition does not correspond to its age or that the agreed maximum mileage has been exceeded, also does not allow a distinction to be drawn between those types of agreement (see, to that effect, judgment delivered today, BMW and Others, C‑38/21, C‑47/21 and C‑232/21, paragraphs 148 and 149).
44Second, account must also be taken of Annex I to Directive 2013/36, to which Article 2(2)(b) of Directive 2006/123 refers. Point 3 of that annex lists ‘financial leasing’ among ‘financial services’.
45In that regard, it should be noted that Directive 2013/36 does not define the concept of ‘financial leasing’, nor does it refer to the law of the Member States for the purpose of determining the meaning or scope of that concept. Therefore, in accordance with the case-law cited in paragraph 39 of the present judgment, that concept must be regarded as an autonomous concept of EU law and be interpreted in a uniform manner throughout the European Union. It follows that the mere fact that a contract for the long-term rental of motor vehicles does not fall within the concept of ‘financial leasing’, within the meaning of the national legislation at issue in the main proceedings, does not in itself preclude that contract from constituting a financial leasing agreement for the purposes of point 3 of Annex I to Directive 2013/36 and, therefore, from concerning the provision of financial services for the purposes of Article 2(2)(b) of Directive 2006/123.
46The concept of ‘financial leasing’, as set out in point 3 of Annex I to Directive 2013/36, must therefore be interpreted taking into account the meaning of that term in everyday legal language, in which the concept of ‘leasing agreement’ covers an agreement whereby one of the parties grants credit to the other party in order to finance the rental use of an asset of which the party granting the credit remains the owner and which the other party may, at the end of the agreement, return or purchase, it being specified that substantially all the rewards and risks of legal ownership are transferred to that other party throughout the term of the agreement (judgment delivered today, BMW and Others, C‑38/21, C‑47/21 and C‑232/21, paragraph 134 and the case-law cited).
47Third, as regards the context of Article 2(2)(b) of Directive 2006/123, reference should be made to recital 33 of that directive, from which it is apparent that car rental constitutes a service falling within the scope of that directive and cannot, therefore, be classified as a ‘financial service’ within the meaning of Article 2(2)(b) of that directive.
48As regards, fourth, the objective pursued by the exclusion of financial services from the scope of Directive 2006/123 pursuant to Article 2(2)(b) thereof, it is apparent from recital 18 of that directive that that exclusion is justified by the fact that such activities are the subject of specific EU legislation. As is apparent from Directive 2013/36 and Regulation No 575/2013, which form part of that specific legislation, that legislation provides for supervision of the provision of financial services by certain types of institutions and lays down prudential requirements with which those institutions must comply.
49In the present case, it is apparent from the order for reference that, under national law, leasing, whether operating or financial, differs from a mere long-term rental contract due to the fact that the lessor is not the original owner of the leased asset, but acquires it at the request of the lessee, precisely in order to lease it to that lessee.
50It is true that, in the context of a financial leasing transaction, the lessor acquires ownership of goods which it then leases out to the lessee, and the fees due under the financial leasing agreement are used to repay the funds made available by the lessor.
51However, it cannot be presumed that any contract for the long-term rental of a motor vehicle which the lessor acquired at the request of the lessee in order to lease it to the lessee necessarily constitutes a financial leasing agreement, the purpose of which is the provision of a ‘financial service’, within the meaning of Article 2(2)(b) of Directive 2006/123. The acquisition of the vehicle by the lessor at the specific request of its customer does not, in itself, affect the question whether the services provided under that contract fulfil any of the relevant criteria listed in paragraph 43 of the present judgment to be classified as ‘financial services’.
52Furthermore, in the light of the information set out in paragraph 43 of the present judgment, it must be pointed out that the absence of a buy-out option in the contract for the long-term rental of motor vehicles cannot be regarded as being, in itself, sufficient for it to be held that the services provided under that contract are not of a financial nature.
53Depending on the nature of the leased asset and its depreciation rate, it is possible that, at the end of a long-term rental, that asset will have lost almost all of its value, so that the lessee will have no interest in becoming its owner.
54In the light of all the foregoing considerations, the answer to the first part of the first question is that Article 2(2)(b) of Directive 2006/123 must be interpreted as meaning that services provided under a contract for the long-term rental of motor vehicles acquired by the lessor at the request of the lessee with a view to leasing them to the latter in return for the payment of a fee does not constitute ‘financial services’ within the meaning of that provision, unless:– the rental contract is subject to an obligation to purchase the vehicle at the end of the rental period,– the fees paid under that contract by the lessee are intended to enable the lessor to amortise fully the costs incurred by him or her in acquiring the vehicle, or– that contract involves a transfer of the risks linked to the residual value of the vehicle upon expiry of that contract.
The second question
55It is apparent from the Court’s case-law, first, that any national measure in a sphere which has been the subject of full harmonisation at EU level must be assessed in the light of the provisions of the harmonising measure and not those of the Treaty and, second, that Articles 9 to 13 of Directive 2006/123 provide for exhaustive harmonisation concerning the services falling within their scope (judgment of 14 July 2016, Promoimpresa and Others, C‑458/14 and C‑67/15, EU:C:2016:558, paragraphs 59 and 61). In those circumstances, and as the Advocate General observed, in substance, in point 64 of his Opinion, the second question must be examined in the light of that directive, without it being necessary to refer to Article 49 TFEU, relating to freedom of establishment.
56It must therefore be held that, by its second question, the referring court asks, in essence, whether Article 9(1) and Article 10(1) and (2) of Directive 2006/123 must be interpreted as precluding a provision of national law which establishes an authorisation scheme, within the meaning of Article 4(6) of that directive, for the provision of long-term motor vehicle rental services and empowers the national authority responsible for managing that scheme to impose requirements and restrictions on undertakings providing such services.
57It must be stated, at the outset, that, as its wording confirms, the second question concerns the provision of long-term motor vehicle rental services and not financial services provided under the cover of a contract relating to such rental. The latter services are excluded from the scope of Directive 2006/123 by virtue of Article 2(2)(b) thereof.
58It must be borne in mind that, in accordance with Article 9(1) of Directive 2006/123, Member States may make access to a service activity and the exercise thereof subject to an authorisation scheme only if that scheme is not discriminatory, it is justified by an overriding reason relating to the public interest, and if the objective pursued cannot be attained by a less restrictive measure, in particular because an ex post inspection would take place too late to be genuinely effective.
59In the present case, it is for the referring court to assess whether those conditions are satisfied with regard to the authorisation scheme at issue in the main proceedings, in so far as it concerns the provision of long-term vehicle rental services which do not constitute a financial service.
60In order to guide the referring court in its assessment, it should be noted, first, that, as the Advocate General stated in point 55 of his Opinion, there is nothing in the documents before the Court to suggest that the regime at issue in the main proceedings discriminates against Autotechnica. It is, however, for the referring court to carry out, where appropriate, the necessary checks.
61Second, in their observations submitted to the Court, the Agency and the Croatian Government submitted that the authorisation scheme at issue in the main proceedings pursues an objective of consumer protection. As is apparent from Article 4(8) of Directive 2006/123, consumer protection constitutes an overriding reason relating to the public interest which may be relied on to justify an authorisation scheme in accordance with Article 9(1) of that directive.
62The fact remains that it does not appear that Croatian law makes the exercise of activities similar to the long-term rental of motor vehicles, in particular the short-term rental of such vehicles, subject to an authorisation scheme. It should be noted, in that regard, that neither the Agency nor the Croatian Government put forward, in their observations, reasons capable of justifying that particular treatment reserved solely to long-term motor vehicle rental services.
63It should also be noted that the authorisation scheme at issue in the main proceedings is managed by the Agency, which, in accordance with national law, is authorised to supervise financial activities. The Agency and the Croatian Government have also not put forward, in their observations, reasons capable of justifying the management of an authorisation scheme which covers the provision of non-financial services by such a national authority.
64Therefore, it is for the referring court to verify, in view of the fact that the authorisation scheme at issue in the main proceedings covers solely long-term motor vehicle rental services and not other similar services, and of the fact that that scheme is managed by a national authority responsible for supervising financial services, whether that scheme may be regarded as justified by the pursuit of the objective of consumer protection.
65Third, if that is the case, it will still be necessary to ascertain whether, as required by Article 9(1)(c) of Directive 2006/123, read in the light of recital 54 thereof, the objective of consumer protection cannot be achieved in the present case by a less restrictive measure, such as regular periodic inspections of undertakings providing long-term motor vehicle rental services.
66Fourth, if it transpires that the authorisation scheme at issue in the main proceedings satisfies the conditions laid down in Article 9(1) of Directive 2006/123, it will still be for the referring court to ascertain whether, as required by Article 10(1) and (2) of that directive, that scheme is based on criteria which circumscribe the exercise of the discretion of the authority with responsibility for its management, in this case the Agency, which are clear and unambiguous, transparent and accessible, made public in advance, objective, non-discriminatory, justified by an overriding reason in the public interest, such as consumer protection invoked by the Agency and the Croatian Government, and proportionate to that objective.
67In the light of all the foregoing considerations, the answer to the second question is that Article 9(1) and Article 10(1) and (2) of Directive 2006/123 must be interpreted as precluding legislation of a Member State which, first, establishes an authorisation scheme, within the meaning of Article 4(6) of that directive, for the provision of long-term motor vehicles rental services under a contract which is not aimed at the provision of financial services, within the meaning of Article 2(2)(b) of that directive, and, second, empowers the national authority responsible for managing that scheme to impose requirements and restrictions on undertakings which provide such services, unless that scheme meets the requirements laid down in Article 9(1) and Article 10(1) and (2) of that directive.
The third question
68In the light of what has been stated in paragraph 55 of the present judgment and the answer given to the second question, there is no need to answer the third question, which concerns a cross-border situation falling within the scope of Article 49 TFEU.
Costs
69Since 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 (Fifth Chamber) hereby rules:
1.Article 2(2)(b) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal marketmust be interpreted as meaning that services provided under a contract for the long-term rental of motor vehicles acquired by the lessor at the request of the lessee with a view to leasing them to the latter in return for the payment of a fee does not constitute ‘financial services’ within the meaning of that provision, unless:– the rental contract is subject to an obligation to purchase the vehicle at the end of the rental period,– the fees paid under that contract by the lessee are intended to enable the lessor to amortise fully the costs incurred by him or her in acquiring the vehicle, or– that contract involves a transfer of the risks linked to the residual value of the vehicle upon expiry of that contract.
2.Article 9(1) and Article 10(1) and (2) of Directive 2006/123must be interpreted as precluding legislation of a Member State which, first, establishes an authorisation scheme, within the meaning of Article 4(6) of that directive, for the provision of long-term motor vehicles rental services under a contract which is not aimed at the provision of financial services, within the meaning of Article 2(2)(b) of that directive, and, second, empowers the national authority responsible for managing that scheme to impose requirements and restrictions on undertakings which provide such services, unless that scheme meets the requirements laid down in Article 9(1) and Article 10(1) and (2) of that directive.
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