Opinion of the Advocate General — ECLI:EU:C:2017:100
Date: 2017-02-08
Language of the case: German
Subject matter: Right of establishment;Free movement of capital;Internal market - Principles
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 14 June 2017 1. Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 – Investment services or activities — Reception and transmission of orders in relation to one or more financial instruments — Definition of ‘order in relation to one or more financial instruments’ — Orders relating to the purchase or sale of one or more financial instruments (European Parliament and Council Directive 2004/39, Art. 4(1), point 2, and Annex I, Section A, point 1) 2. Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Investment services or activities — Reception and transmission of orders in relation to one or more financial instruments — Definition — Brokering with a view to concluding a contract covering portfolio management services — Not included (European Parliament and Council Directive 2004/39, Art. 4(1), point 2, and Annex I, Section A, point 1) 1. Regarding the wording of point 1 of Section A of Annex I to Directive 2004/39, although the referring court observes a certain divergence between the different language versions of the terms ‘in relation to’ which, depending on the case, may suggest a more or less direct link between the orders and the financial instrument(s) referred to in that provision, it should be noted that the term ‘order’, the reception and transmission of which constitute the service or investment activity covered by that provision, remains the same in the language versions cited by the referring court, being the Spanish-, German-, English- and French-language versions. Moreover, even if that term is not defined per se in Directive 2004/39, it should be noted that the words ‘in relation to one or more financial instruments’ merely serve to specify which type of order is being referred to, that is to say, the orders relating to the purchase or the sale of such financial instruments. This interpretation of the term ‘order’ is confirmed by the context of which it forms a part. More specifically, it must be interpreted in the light of point 2 of Section A of Annex I to that directive, which refers to investment services consisting in the ‘[e]xecution of orders on behalf of clients’. Moreover, the investment service referred to in point 2 of Section A of Annex I to Directive 2004/39, consisting in the ‘[e]xecution of orders on behalf of clients’, is defined in Article 4(1)(5) of that directive as being ‘acting to conclude agreements to buy or sell one or more financial instruments on behalf of clients’. It follows that the orders covered by the investment service referred to in point 1 of Section A of Annex I to that directive are orders for the purchase or sale of one or more financial instruments. (see paras 27-29, 31, 32) 2. Article 4(1)(2) 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, read in conjunction with point 1 of Section A of Annex I to that directive, must be interpreted as meaning that the investment service consisting in the reception and transmission of orders in relation to one or more financial instruments does not include brokering with a view to concluding a contract covering portfolio management services. Even if the conclusion of that contract may subsequently serve as a basis for the reception and transmission of orders for the purchase or sale of financial instruments by the portfolio manager as part of its management activities, the purpose of the contract itself is not the reception or transmission of orders. The purpose of Directive 2004/39 does not require a different interpretation of that provision. It is true that inter alia recitals 2 and 31 in the preamble to that directive indicate that one of its objectives is to guarantee investor protection (see, to that effect, judgment of 30 May 2013, Genil 48 and Comercial Hostelera de Grandes Vinos, C‑604/11, EU:C:2013:344, point 39). However, that objective by itself cannot justify allowing a particularly broad meaning to be attached to the definition of ‘investment service’ as laid down in point 1 of Section A of Annex I to Directive 2004/39, to the point of encompassing brokering with a view to concluding a contract covering portfolio management services. Such a meaning would run counter to the interpretation of that provision resulting, in particular, from the context of which it forms a part. (see paras 35, 41-44, operative part)