Mastromartino (Internal market - Financial adviser authorised to provide offsite services - Judgment) [2019] EUECJ C-53/18 (08 May 2019)

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(Reference for a preliminary ruling - Markets in financial instruments - Directive 2004/39/EC - Articles 8, 23, 50 and 51 - Scope - Financial adviser authorised to provide offsite services - Staff member who has become a defendant in criminal proceedings - National legislation providing for the possibility of temporarily prohibiting the exercise of the activity - Fundamental freedoms - Purely internal situation - Not applicable)

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court for Lazio, Italy), made by decision of 7 July 2017, received at the Court on 29 January 2018, in the proceedings

composed of A. Arabadjiev, President of the Chamber, T. von Danwitz (Rapporteur), E. Levits, C. Vajda and P.G. Xuereb, Judges,

- the Commissione Nazionale per le Società e la Borsa (Consob), by P. Palmisano, S. Providenti and E. Garzia, avvocati,

- the Italian Government, by G. Palmieri, acting as Agent, and by D. Del Gaizo, avvocato dello Stato,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1), as amended by Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010 (OJ 2010 L 331, p. 120) (‘the MiFID’), in particular Articles 8, 23 and 51 thereof, and the principles and provisions of the Treaties with regard to non-discrimination, proportionality, freedom to provide services and freedom of establishment.

2 The request has been made in proceedings between Mr Antonio Pasquale Mastromartino and the Commissione Nazionale per le Società e la Borsa (Consob) (National Companies and Stock Exchange Commission, Italy) concerning the lawfulness of Consob’s decision temporarily prohibiting the applicant in the main proceedings from exercising the activity of financial adviser authorised to provide offsite services.

‘(36) Persons who provide investment services on behalf of more than one investment firm should not be considered to be tied agents but as investment firms when they fall under the definition provided in this Directive, with the exception of certain persons who may be exempted.

(38) The conditions for conducting activities outside the premises of the investment firm (door-to-door selling) should not be covered by this Directive.’

2. The following provisions shall also apply to credit institutions authorised under 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 (OJ 2000 L 126, p. 1)], when providing one or more investment services and/or performing investment activities …’

‘1. For the purposes of this Directive, the following definitions shall apply:

1) “investment firm” means any legal person whose regular occupation or business is the provision of one or more investment services to third parties and/or the performance of one or more investment activities on a professional basis;

Member States may include in the definition of investment firms undertakings which are not legal persons …:

However, where a natural person provides services involving the holding of third parties’ funds or transferable securities, he may be considered as an investment firm for the purposes of this Directive only if, without prejudice to the other requirements imposed in this Directive and in Directive 93/6/EEC, he complies with the following conditions:

(a) the ownership rights of third parties in instruments and funds must be safeguarded …;

(b) the firm must be subject to rules designed to monitor the firm’s solvency and that of its proprietors;

(d) where the firm has only one proprietor, he must make provision for the protection of investors in the event of the firm’s cessation of business following his death, his incapacity or any other such event;

14) “regulated market” means a multilateral system operated and/or managed by a market operator, which brings together or facilitates the bringing together of multiple third-party buying and selling interests in financial instruments - in the system and in accordance with its non-discretionary rules - in a way that results in a contract, in respect of the financial instruments admitted to trading under its rules and/or systems, and which is authorised and functions regularly and in accordance with the provisions of Title III;

25) “tied agent” means a natural or legal person who, under the full and unconditional responsibility of only one investment firm on whose behalf it acts, promotes investment and/or ancillary services to clients or prospective clients, receives and transmits instructions or orders from the client in respect of investment services or financial instruments, places financial instruments or provides advice to clients or prospective clients in respect of those financial instruments or services’.

6 Under Article 5(1) of the MiFID, Member States are required to make the performance of investment services or activities by an investment firm subject to the issuing of prior authorisation. Article 8 of that directive lays down the conditions under which the competent authority may withdraw the authorisation issued to such an investment firm.

7 Article 13 of that directive, entitled ‘Organisational requirements’, provides, in paragraph 2:

‘An investment firm shall establish adequate policies and procedures sufficient to ensure compliance of the firm including its managers, employees and tied agents with its obligations under the provisions of this Directive as well as appropriate rules governing personal transactions by such persons.’

8 Under Article 23 of the MiFID, entitled ‘Obligations of investment firms when appointing tied agents’:

‘1. Member States may decide to allow an investment firm to appoint tied agents for the purposes of promoting the services of the investment firm, soliciting business or receiving orders from clients or potential clients and transmitting them, placing financial instruments and providing advice in respect of such financial instruments and services offered by that investment firm.

2. Member States shall require that where an investment firm decides to appoint a tied agent it remains fully and unconditionally responsible for any action or omission on the part of the tied agent when acting on behalf of the firm. Member States shall require the investment firm to ensure that a tied agent discloses the capacity in which he is acting and the firm which he is representing when contacting or before dealing with any client or potential client.

Member States shall require the investment firms to monitor the activities of their tied agents so as to ensure that they continue to comply with this Directive when acting through tied agents.

3. Member States that decide to allow investment firms to appoint tied agents shall establish a public register. Tied agents shall be registered in the public register in the Member State where they are established. …

Member States shall ensure that tied agents are only admitted to the public register if it has been established that they are of sufficiently good repute and that they possess appropriate general, commercial and professional knowledge so as to be able to communicate accurately all relevant information regarding the proposed service to the client or potential client.

4. Member States shall require that investment firms appointing tied agents take adequate measures in order to avoid any negative impact that the activities of the tied agent not covered by the scope of this Directive could have on the activities carried out by the tied agent on behalf of the investment firm.

5. Member States shall require that investment firms appoint only tied agents entered in the public registers referred to in paragraph 3.

6. Member States may reinforce the requirements set out in this Article or add other requirements for tied agents registered within their jurisdiction.’

9 In accordance with Article 50(1) and (2)(g) of the MiFID, competent authorities are to be given all supervisory and investigatory powers that are necessary for the exercise of their functions, which are to be exercised in conformity with national law and are to include at least, inter alia, the right to ‘request temporary prohibition of professional activity’.

10 Article 51 of that directive, entitled ‘Administrative sanctions’, provides, in paragraph 1:

‘Without prejudice to the procedures for the withdrawal of authorisation or to the right of Member States to impose criminal sanctions, Member States shall ensure, in conformity with their national law, that the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible where the provisions adopted in the implementation of this Directive have not been complied with. Member States shall ensure that these measures are effective, proportionate and dissuasive.’

11 Article 31 of the Decreto legislativo n. 58 - Testo unico delle disposizioni in materia di intermediazione finanziaria, ai sensi degli articoli 8 e 21 della legge 6 febbraio 1996, n. 52 (Legislative Decree No 58, consolidating all provisions in the field of financial intermediation, within the meaning of Articles 8 and 21 of Law No 52 of 6 February 1996) of 24 February 1998 (ordinary supplement to GURI No 71, of 26 March 1998) (‘the TUF’), provides, in paragraphs 1 and 2:

‘1. In order to conduct offsite activities, the authorised entities shall appoint financial advisers authorised to provide offsite services. …

2. The activity of financial advisers authorised to provide offsite services shall be conducted exclusively in the interest of a single authorised entity. The financial adviser authorised to provide offsite services shall promote and place investment and/or ancillary services to clients or prospective clients, receive and transmit instructions or orders from the client in respect of investment services or financial instruments, promote and place financial products and/or provide investment advice to clients or prospective clients in respect of those products or services. … ’

12 In accordance with Article 55(2) of the TUF, Consob may, as a precautionary measure, for a maximum period of one year, order the transaction of business of a financial adviser authorised to provide offsite services to be suspended, inter alia if that adviser becomes a defendant under Article 60 of the Code of Criminal Procedure, in relation to the criminal offences referred to in Article 55(2) of the TUF.

13 Article 111(2) of the Regolamento recante norme di attuazione del decreto legislativo 24 febbraio 1998, n. 58 in materia di intermediari (Regulation laying down the rules implementing Legislative Decree No 58 of 24 February 1998 on intermediaries), adopted by Consob by Resolution No 16190 of 29 October 2007, provides:

‘For the purposes of the possible adoption of the precautionary measures referred to in Article 55(2) of the [TUF], Consob shall evaluate, within the limits of the powers conferred on it by law, the circumstances for which the financial adviser authorised to provide offsite services … became a defendant for one of the criminal offences mentioned above and, in particular, shall take into account the nature of the offence and whether the circumstances mentioned above are such as to prejudice the specific interests involved in carrying on the activity of financial adviser authorised to provide offsite services.’

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

14 Mr Mastromartino provides services as a financial adviser authorised to provide offsite services. By decision of 11 November 2015, based on Article 55(2) of the TUF, Consob temporarily prohibited him from exercising that activity for the period of one year, on account of the criminal proceedings against him.

15 Mr Mastromartino brought an appeal against that decision before the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court for Lazio, Italy). Before that court, he claims, inter alia, that Article 55(2) of the TUF, which serves as a legal basis for the temporary prohibition on exercising the activity of financial adviser at issue in the main proceedings, is incompatible with the provisions of the MiFID. Furthermore, the extent of Consob’s discretion under national legislation for the purposes of imposing such a temporary prohibition fails to have regard to the principles of transparency and objectivity laid down in the case-law of the Court of Justice relating to the fundamental freedoms.

16 Consob disputes that argument on the ground, inter alia, that the MiFID is not applicable to the dispute in the main proceedings.

17 In those circumstances, the Tribunale amministrativo regionale per il Lazio (Regional Administrative Court for Lazio) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is a “tied agent” covered by the harmonisation provided for in [the MiFID], and from what aspects?

(2) Is the correct application of [the MiFID], in particular Articles 8, 23 and 51 of that directive, and of the principles and rules of the Treaties with regard to non-discrimination, proportionality, freedom to provide services and the right of establishment precluded by provisions of national law, such as those in Article 55(2) of [the TUF], as amended, and also Article 111, paragraph 2 of the [Regulation laying down the rules implementing Legislative Decree No 58 of 24 February 1998 on intermediaries, adopted by Consob by Resolution No 16190 of 29 October 2007], that:

(a) allows the “discretionary” prohibition of the exercise of the activity of a “tied agent” (adviser authorised to offer offsite services) in relation to actions not entailing the loss of good repute, as defined by national law, and at the same time do not concern compliance with the provisions implementing [that directive];

(b) allows the “discretionary” prohibition for up to one year of the exercise of the activity of “tied agent” (consultant authorised to provide offsite services) in proceedings seeking to prevent the “strepitus” deriving from the charge in criminal proceedings whose duration is as a rule much longer than a year?’

18 By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether the MiFID, in particular Articles 8, 23, 50 and 51 thereof, the provisions of the FEU Treaty on freedom of establishment and freedom to provide services and the principles of non-discrimination and proportionality must be interpreted as precluding a temporary prohibition on exercising the activity of financial adviser authorised to provide offsite services, such as that at issue in the main proceedings.

19 In order to answer those questions, it must first be ascertained whether such a prohibition falls within the scope of the MiFID.

20 Article 1(1) of the MiFID provides that the directive is to apply to investment firms and regulated markets. Under Article 1(2), certain provisions of that directive are also to apply to credit institutions authorised under Directive 2000/12, when providing one or more investment services and/or performing investment activities.

21 Since the temporary prohibition on exercising the activity of ‘financial adviser authorised to provide offsite services’ at issue in the main proceedings is, in any event, unrelated to the management of a regulated market within the meaning of point 14 of Article 4(1) of the MiFID, and does not concern a credit institution, the only question arising in these proceedings is whether such an adviser falls within the concept of ‘investment firm’ within the meaning of that directive.

22 According to the first subparagraph of point 1 of Article 4(1) of the MiFID, that concept refers to legal persons whose regular occupation or business is the provision of one or more investment services to third parties and/or the performance of one or more investment activities on a professional basis. While a natural person may, under the conditions laid down in the second and third subparagraphs of that point 1, also be regarded as an investment firm, the same is not true where that person acts under the responsibility and on behalf of only one investment firm.

23 Such a person does not constitute an ‘investment firm’ within the meaning of point 1 of Article 4(1) of the MiFID, but is covered by the distinct concept of ‘tied agent’ within the meaning of point 25 of Article 4(1). That provision defines a ‘tied agent’ as ‘a natural or legal person who, under the full and unconditional responsibility of only one investment firm on whose behalf it acts, promotes investment and/or ancillary services to clients or prospective clients, receives and transmits instructions or orders from the client in respect of investment services or financial instruments, places financial instruments or provides advice to clients or prospective clients in respect of those financial instruments or services’.

24 It is apparent from points 1 and 25 of Article 4(1) of that directive that it establishes a clear distinction between the concepts of ‘investment firm’ and ‘tied agent’, the latter concept being essentially characterised by the fact that the tied agent acts under the responsibility and on behalf of only one investment firm. Recital 36 of the MiFID states in that regard that ‘persons who provide investment services on behalf of more than one investment firm should not be considered as tied agents but as investment firms’.

25 In the present case, although it is for the referring court alone to rule on the classification of ‘financial advisers authorised to provide offsite services’ in accordance with the particular circumstances of the case pending before it, the Court of Justice does, however, have jurisdiction to elicit the criteria that the national court must apply to that end (see, to that effect, judgment of 16 November 2017, Robeco Hollands Bezit and Others, C-658/15, EU:C:2017:870, paragraph 25 and the case-law cited).

26 According to the information in the order for reference, a ‘financial adviser authorised to provide offsite services’, within the meaning of the national legislation at issue in the main proceedings, is to promote and provide, inter alia, investment and/or ancillary services and investment advice to clients or prospective clients, and is to do so exclusively in the interest of a single investment firm. It is thus apparent that such an adviser, in the light of the functions which he carries out, must be regarded as a ‘tied agent’ within the meaning of point 25 of Article 4(1) of the MiFID and not as an ‘investment firm’ within the meaning of point 1 of that provision.

27 As regards the question whether Articles 8, 23 and 51 of the MiFID, to which the national court refers, are applicable to the dispute in the main proceedings, it must be stated, first of all, that Article 8 thereof lays down the conditions under which the competent authority may withdraw the authorisation issued to an investment firm, which the Member States are required to make conditional upon the provision of investment services or the performance of investment activities by such a firm. That directive does not make the activity of tied agents subject to the issuing of prior authorisation, with the result that the temporary prohibition of the activity of ‘financial adviser authorised to provide offsite services’ at issue in the main proceedings does not fall within the scope of Article 8.

28 Next, as the Commission pointed out in its written observations, Article 23 of the MiFID does not govern the activity of tied agents as such, but sets out the conditions under which investment firms may use such agents. In particular, the third subparagraph of Article 23(2) of that directive, read in conjunction with Article 13(2) thereof, requires investment firms to establish policies, procedures and monitoring to ensure that they themselves comply with the obligations under that directive when acting through tied agents, without determining the conditions under which those agents may carry on their activity.

29 Likewise, as follows from Article 23(3) and (5) of the MiFID, the requirement to register tied agents in a public register is conceived as a condition to be met by investment firms in order to be able to appoint such agents. Furthermore, it must be noted that such registration presupposes, inter alia, that the person registered is of sufficiently good repute. According to the information in the request for a preliminary ruling, the prohibition at issue in the main proceedings was not based on an alleged lack of good repute on the part of Mr Mastromartino, but on the fact that criminal proceedings had been brought against him.

30 Furthermore, Article 23 of the MiFID does not govern the conditions under which the national authorities may temporarily prohibit the activity of tied agent. In that regard, Article 23(6) expressly provides that Member States may reinforce the requirements set out in that article or add other requirements for tied agents registered within their jurisdiction, which may include, inter alia, such a temporary prohibition.

31 Nor, moreover, does that temporary prohibition fall under Article 50 of the MiFID. Although the competent authorities must, pursuant to Article 50(1) and (2)(g), have the power to request the temporary prohibition of professional activity, it is nevertheless apparent from the foregoing considerations that the MiFID does not govern the activity of tied agents. In particular, recital 38 of that directive states that it does not cover the conditions for conducting activities outside the premises of the investment firm. The temporary prohibition at issue in the main proceedings specifically relates to the activity of financial advisers acting ‘outside the premises of the firm’ which is not covered by the MiFID.

32 Finally, Article 51(1) of that directive provides that the Member States must lay down appropriate administrative sanctions against the persons responsible where the provisions adopted in the implementation of the directive have not been complied with. According to the information set out in the request for a preliminary ruling, the actions that gave rise to the temporary prohibition on exercising the activity of ‘financial adviser authorised to provide offsite services’ at issue in the main proceedings do not concern a failure to comply with the provisions implementing the directive. They are therefore actions to which Article 51(1) is not applicable.

33 Accordingly, the temporary prohibition on exercising the activity of ‘financial adviser authorised to provide offsite services’ at issue in the main proceedings does not fall within the scope of the MiFID, which is, however, a matter for the referring court to verify in the light of the specific circumstances of the case in the main proceedings. Subject to that verification, that directive therefore has no effect on such a prohibition.

The provisions of the FEU Treaty on freedom of establishment and freedom to provide services and the principles of non-discrimination and proportionality

34 It should be recalled that the provisions of the FEU Treaty on the freedom of establishment and the freedom to provide services do not apply to a situation which is confined in all respects within a single Member State (see, to that effect, judgments of 15 November 2016, Ullens de Schooten, C-268/15, EU:C:2016:874, paragraph 47 and the case-law cited, and of 14 November 2018, NKBM, C-215/17, EU:C:2018:901, paragraph 41).

35 In that regard, it should be noted that the request for a preliminary ruling raises questions as to the compatibility of a temporary prohibition on exercising the activity of ‘financial adviser authorised to provide offsite services’, such as that at issue in the main proceedings, with fundamental freedoms, which the referring court appears to consider applicable in the circumstances at issue in the main proceedings, taking into account, inter alia, the effects that such a prohibition might have on the activity of the adviser concerned, irrespective of whether that activity is cross-border in nature.

36 While it cannot be excluded at the outset that national legislation which is applicable without distinction to the internal and cross-border activities of such an adviser might, depending on the circumstances of the case, produce effects which are not confined within a single Member State, the Court has previously held, in such a case, that it cannot, where the referring court does not indicate something other than that the national legislation applies without distinction, consider that the request for a preliminary ruling on the interpretation of the provisions of the FEU Treaty on the fundamental freedoms is necessary to enable that court to give judgment in the case pending before it (see, to that effect, judgments of 15 November 2016, Ullens de Schooten, C-268/15, EU:C:2016:874, paragraphs 50 and 54, and of 14 November 2018, NKBM, C-215/17, EU:C:2018:901, paragraphs 42 to 44).

37 In the present case, the request for a preliminary ruling does not reveal any specific information capable of establishing a link between the subject matter or the circumstances of the dispute in the main proceedings and the exercise, even potential exercise, by Mr Mastromartino of the fundamental freedoms guaranteed by Articles 49 and 56.

38 Moreover, in so far as Mr Mastromartino draws attention, in his written observations, to the consequences that a temporary prohibition on exercising the activity of ‘financial adviser authorised to provide offsite services’ such as that at issue in the main proceedings might have, in an entirely abstract way, for the possibility of exercising that activity throughout the European Union, it is not however apparent from his observations that such consequences are of any relevance for the purposes of resolving the dispute in the main proceedings.

39 Accordingly, the fundamental freedoms guaranteed by Articles 49 and 56 TFEU are not applicable to a temporary prohibition on exercising the activity of ‘financial adviser authorised to provide offsite services’ such as that at issue in the main proceedings and, therefore, have no effect on that prohibition.

40 In the light of the foregoing considerations, the answer to the questions referred is that the MiFID, in particular Articles 8, 23, 50 and 51 thereof, Articles 49 and 56 TFEU and the principles of non-discrimination and proportionality must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a temporary prohibition on exercising the activity of financial adviser authorised to provide offsite services falls neither within the scope of that directive, nor that of Articles 49 and 56 TFEU or that of the principles of non-discrimination and proportionality. In such circumstances, Articles 8, 23, 50 and 51 of that directive, Articles 49 and 56 TFEU and the principles of non-discrimination and proportionality do not preclude such a prohibition.

41 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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC, as amended by Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010, in particular Articles 8, 23, 50 and 51 thereof, Articles 49 and 56 TFEU and the principles of non-discrimination and proportionality must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, a temporary prohibition on exercising the activity of financial adviser authorised to provide offsite services falls neither within the scope of that directive, nor that of Articles 49 and 56 TFEU or that of the principles of non-discrimination and proportionality. In such circumstances, Articles 8, 23, 50 and 51 of that directive, Articles 49 and 56 TFEU and the principles of non-discrimination and proportionality do not preclude such a prohibition.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Mastromartino (Internal market - Financial adviser authorised to provide offsite services - Judgment) [2019] EUECJ C-53/18 (08 May 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C5318.html Cite as: EU:C:2019:380, ECLI:EU:C:2019:380, [2019] EUECJ C-53/18

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