JUDGMENT OF 24. 10. 1978 — CASE 13/78 SOCIETE GENERALE ALSACIENNE DE BANQUE v KOESTLER

In Case 15/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Oberlandesgericht Köln (Higher Regional Court, Cologne) for a preliminary ruling in the action pending before that court between.

THE COURT composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Written observations submitted to the Court

III — Oral procedure

Decision

Costs

I —. Facts and written procedure

1. Properly interpreted, do Articles 59 and 60 of the EEC Treaty exclude the objection under German law that a contract is an agreement to pay differences (Differenzeinwand — articles 764 and 762 of the Bürgerliches Gesetzbuch (Civil Code); Articles 61, 58 and 50 of the Borsengesetz (Law relating to stock exchanges and commodity markets; Bundesgerichtshof, Neue Juristische Wochenschrift 75, 1600; 72382) in a case where a French bank is claiming, from a customer of German nationality, the repayment on the basis of French law of credit for dme-bargains (agreements to pay differences) carried out on the Paris stock exchange in accordance with an agreement?

2. Is it relevant for the answer to Question 1 whether under German law the German customer had capacity in accordance with Article 53 of the Börsengesetz to enter into time-bargains?

II —. Written observations submitted to the Court

1. Article 59 of the EEC Treaty must be interpreted as meaning that a Member State may not make the provision of services subject to any restriction which subjects the exercise of the rights invoked by the person providing the services as against the person for whom the services are intended to the latter's domestic legal system, if the recovery of debts arising out of the provision of services is thereby barred, even if the whole of the service has been provided in the country of the person providing the services.

2. The question whether the person for whom the services are intended has capacity or not under his domestic law to conclude time-bargains is irrelevant in interpreting Article 59 of the EEC Treaty.

III —. Oral procedure

1. By an order of 23 January 1978, which was received at the Court on 13 February 1978, the Oberlandesgericht Köln, pursuant to Article 177 of the EEC Treaty, referred to the Court two questions on the interpretation of Articles 59 and 60 of the Treaty concerning the liberalization of the provision of services between Member States, with reference to the application of certain provisions of German law, the object of which is to bar legal proceedings in respect of obligations arising out of certain speculative stock exchange time-bargains.

2. The facts giving rise to the action brought in the Oberlandesgericht may be summarized as follows:

3. The national court was right to accept that in a case of this kind the provisions of the EEC Treaty relating to the liberalization of the provision of services apply.

4. The applicability of the rules of Community law relating to the liberalization of the provision of services having then been established it is appropriate in the first place to show how these provisions are to be applied to the question raised by the national court.

5. The fact that debts arising out of a wagering contraa or other similar debts are not actionable cannot be regarded as discrimination against a person providing services established in another Member Sute if the same limitation applies to any person providing services established within the territory of the same Sute whenever that person claims payments of a debt of the same kind, and this has not been disputed in the present case.

6. Therefore the answer to the first question must be that Articles 59 and 60 of the EEC Treaty do not affect the application of legislative provisions whereby a Member State bars the recovery by legal action of certain debts, such as debts arising out of a wagering contract and similar debts, provided that such provisions arc not applied in a discriminatory manner, either in law or in fact, compared with the way in which similar debts contracted within the territory of the Member State in question are treated.

7. Having regard to this answer there is no need to answer the second question.

8. The costs incurred by the Commission of the European Communities, which submitted obervations to the Court, are not recoverable.

On those grounds, THE COURT in answer to the questions referred to it by the Oberlandesgericht Köln by an order of 23 January 1978, hereby rules: