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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Testa and Lazzeri (Freedom to provide services) [2002] EUECJ C-356/00 (21 November 2002) URL: http://www.bailii.org/eu/cases/EUECJ/2002/C35600.html Cite as: [2002] EUECJ C-356/00, [2002] EUECJ C-356/ |
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JUDGMENT OF THE COURT (Fifth Chamber)
21 November 2002 (1)
(Directive 93/22/EEC - Investment services in the securities field - Managing portfolios of investments)
In Case C-356/00,
REFERENCE to the Court under Article 234 EC by the Tribunale amministrativo regionale per la Toscana (Italy) for a preliminary ruling in the proceedings pending before that court between
Antonio Testa,
Lido Lazzeri
and
Commissione Nazionale per le Società e la Borsa (Consob),
intervener:
Banca Fideuram SpA,
on the interpretation of Point 3 of Section A of the Annex to Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field (OJ 1993 L 141, p. 27),
THE COURT (Fifth Chamber),
composed of: M. Wathelet, President of the Chamber, C.W.A. Timmermans, A. La Pergola, P. Jann and S. von Bahr (Rapporteur), Judges,
Advocate General: L.A. Geelhoed,
Registrar: L. Hewlett, Principal Administrator,
after considering the written observations submitted on behalf of:
- Mr Testa, Mr Lazzeri and Banca Fideuram SpA, by G. de Nova, R. Ristuccia and F. Barbieri, avvocati,
- Commissione Nazionale per le Società e la Borsa (Consob) and the Italian Government, by U. Leanza, acting as Agent, assisted by F. Quadri, avvocato dello Stato,
- the Commission of the European Communities, by C. Tufvesson and A. Aresu, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of Mr Testa, Mr Lazzeri and Banca Fideuram SpA, represented by R. Ristuccia and F. Barbieri, Commissione Nazionale per le Società e la Borso (Consob) and the Italian Government, represented by G. de Bellis, avvocato dello Stato, and the Commission, represented by C. Tufvesson and A. Aresu, at the hearing on 8 November 2001,
after hearing the Opinion of the Advocate General at the sitting on 7 February 2002,
gives the following
The Community legislation
The national legislation
The dispute i n the main proceedings and the questions referred
'1. Must Point 3 of Section A of the Annex to Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field, which contains the definition [m]anaging portfolios of investments in accordance with mandates given by investors on a discriminatory, client-by-client basis, be interpreted as meaning that that Community provision is infringed by a national provision which departs from it and which, in this case, does not require that themanagement of portfolios of investments should be on a discriminatory, client-by-client basis and in accordance with mandates given by investors?
2. Conversely, does a national provision which, in implementing a harmonising directive, omits the abovementioned requirements, comply with Community law?'
Admissibility
Substance
Costs
47. The costs incurred by the Italian Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the Tribunale amministrativo regionale per la Toscana by order of 18 January 2000, hereby rules:
Point 3 of Section A of the Annex to Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field, which defines managing portfolios of investments, precludes national legislation which departs from that definition bynot requiring, for the purposes of the implementation of that directive, that the management of portfolios of investments should be 'on a discriminatory, client-by-client basis' and 'in accordance with mandates given by investors'. However, there is nothing to prevent a Member State from extending by national legislation the applicability of the provisions of that directive to operations not covered by it, provided that it is made clear that the national legislation in question does not constitute the transposition of the directive, but arises from the independent will of the legislature.
Wathelet
Jann von Bahr
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Delivered in open court in Luxembourg on 21 November 2002.
R. Grass M. Wathelet
Registrar President of the Fifth Chamber
1: Language of the case: Italian.