Opinion of the Advocate General — ECLI:EU:C:2017:304
Date: 2017-04-26
Language of the case: Dutch
Subject matter: Right of establishment;Free movement of capital;Internal market - Principles
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary — Judgment of the Court (Fourth Chamber), 16 November 2017 1. Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Multilateral system — Meaning (European Parliament and Council Directive 2004/39, Recital 6 and Arts 4(1), points 6 and 14) 2. Freedom of establishment — Freedom to provide services –Markets in financial instruments — Directive 2004/39 — Regulated market — Definition — System based on the participation of brokers representing investors and ‘open end’ investment fund agents required to execute orders relating to their funds — Included (European Parliament and Council Directive 2004/39, Art. 4(1), point 14) 1. Although ‘multilateral system’ is not defined as such by that directive, it is stated in recital 6 thereof that the definitions of ‘regulated market’ and of ‘multilateral trading facility (MTF)’, which are the two forms of multilateral system governed by the directive, should exclude bilateral systems in which an investment firm enters into every trade on own account and not as a riskless counterparty interposed between the buyer and seller. Under Article 4(1)(6) of Directive 2004/39 dealing on own account means trading against proprietary capital resulting in transactions in financial instruments. From that clear distinction between a multilateral system and a bilateral system, it may be inferred that a market operator or an investment firm operating a multilateral system acts without incurring risk and without trading against proprietary capital in the conclusion of transactions within that system. (see paras 30, 31) 2. Article 4(1)(14) 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 must be interpreted as meaning that the concept of a ‘regulated market’ within the meaning of that provision covers a trading system in which multiple fund agents and brokers represent, respectively, ‘open end’ investment funds and investors, the sole purpose of which is to facilitate those investment funds in their obligation to execute the purchase and selling orders for shares placed by those investors. (see para. 44, operative part)