# C_2018142EN.01003001.xml

| 23.4.2018 | EN | Official Journal of the European Union | C 142/30 |
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23.4.2018

EN

Official Journal of the European Union

C 142/30

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Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 29 January 2018 — Antonio Pasquale Mastromartino v Commissione Nazionale per le Società e la Borsa (Consob)

(Case C-53/18)

(2018/C 142/40)

Language of the case: Italian

Referring court

Referring court

Tribunale Amministrativo Regionale per il Lazio (Italy)

Parties to the main proceedings

Parties to the main proceedings

Applicant: Antonio Pasquale Mastromartino

Applicant:

Defendant: Commissione Nazionale per le Società e la Borsa (Consob)

Defendant:

Questions referred

Questions referred

| 1. | Is a ‘tied agent’ covered by the harmonisation provided for in Directive No 2004/39/EC of the European Parliament and of the Council, of 21 April 2004, (1) and from what aspects; |
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1.

Is a ‘tied agent’ covered by the harmonisation provided for in Directive No 2004/39/EC of the European Parliament and of the Council, of 21 April 2004, (1) and from what aspects;

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| 2. | Is the correct application of Directive No 2004/39/EC of the European Parliament and the Council of 21 April 2004, 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 Legislative Decree No 58 of 24 February 1998 (Consolidated Law on provisions on financial intermediation pursuant to Articles 8 and 21 of Law No 52 of 6 February 1996), as amended, and also Article 111, paragraph 2 of the Resolution No 16190 of the Commissione Nazionale per le Società e la Borsa — Consob of 29 October 2007 (Regulation laying down the rules implementing Legislative Decree No 58 of 24 February 1998 on intermediaries), that:






  a) | allows the ‘discretionary’ prohibition of the exercise of the activity of a ‘tied agent’ (adviser authorised to offer offsite services — formerly financial planner) 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 the Directive; |
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2.

Is the correct application of Directive No 2004/39/EC of the European Parliament and the Council of 21 April 2004, 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 Legislative Decree No 58 of 24 February 1998 (Consolidated Law on provisions on financial intermediation pursuant to Articles 8 and 21 of Law No 52 of 6 February 1996), as amended, and also Article 111, paragraph 2 of the Resolution No 16190 of the Commissione Nazionale per le Società e la Borsa — Consob of 29 October 2007 (Regulation laying down the rules implementing Legislative Decree No 58 of 24 February 1998 on intermediaries), that:

a)

allows the ‘discretionary’ prohibition of the exercise of the activity of a ‘tied agent’ (adviser authorised to offer offsite services — formerly financial planner) 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 the 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 — formerly financial [Or. 13] planner) 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’? |
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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 — formerly financial [Or. 13] planner) 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’?

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(1)  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).

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