Information;Order — ECLI:EU:C:2025:813
Date: 2025-10-03
Language of the case: Romanian
Court formation: Eighth Chamber
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-163/25 – 1 
Case C-163/25 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
27 February 2025 
Referring court: 
Curtea de Apel București (Romania) 
Date of the decision to refer: 
4 August 2022 
Applicant: 
SC Sadalbari SRL 
Defendant: 
Autoritatea de Supraveghere Financiară, Secctorul Instrumentelor și 
Investițiilor financiare (Financial Supervisory Authority, Section for 
Financial Instruments and Investments, Romania) 
  
Subject matter of the main proceedings 
Administrative action seeking the annulment of decisions issued by the 
Autoritatea de Supraveghere Financiară (Financial Supervisory Authority) 
concerning the penalty imposed on a commercial company for failing to make a 
mandatory takeover bid. 
Subject matter and legal basis of the request 
An interpretation is sought, on the basis of Article 267 TFEU, of the provisions of 
Article 4(1)(14) and Title III of Directive 2004/39/EC of the European Parliament 
and of the Council. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-163/25 
 
2  
Questions referred for a preliminary ruling 
1. Do the provisions of Article 4(1)(14) and Title III 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 preclude the classification as a regulated 
market of a market which, as in the present case, has not been authorised as a 
regulated market or which does not meet the other requirements of that Title? 
2. Are third parties not operating on a regulated market required, by EU law 
and national transposing legislation, to comply with the rules of that market ([that 
is to say] of the regulated market)? 
Provisions of European Union law and case-law relied on 
Article 4(1)(14) and (15), Article 36(1), (2) and (5), Article 69 and Article 71 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. 
Article 1(4) and the first paragraph of Article 9 of Directive 2003/6/EC of the 
European Parliament and of the Council of 28 January 2003 on insider dealing 
and market manipulation (market abuse).  
Judgment of the Court of 22 March 2012, Nilaş and Others (C-248/11, 
EU:C:2012:166; ‘the Nilaș judgment’), paragraphs 18 to 20, 22 and operative part.  
Provisions of national law relied on 
Legea nr. 297/2004 privind piața de capital din 28 iunie 2004 (Law No 297/2004 
on the capital market of 28 June 2004, Monitorul Oficial al României (Official 
Gazette of Romania), Part I, No 571, of 29 June 2004; ‘Law No 297/2004’)  
Article 125, which defines the concept of ‘regulated market’ as follows: 
‘Regulated market means a system for the trading of financial instruments […] 
which: (a) functions in a regular manner; (b) is characterised by the fact that the 
rules issued and subject to approval by the [Comisia Natională a Valorilor 
Mobiliare (National Securities Commission; ‘the CNVM’)] define the conditions 
for operation, market access and the admission of a financial instrument to 
trading; (c) complies with the reporting and transparency requirements in order to 
provide investors with the protection laid down by this law, as well as with the 
rules issued by the CNVM, in accordance with [EU] legislation.’ 
SADALBARI 
 
3 
Article 203(1) of that law, which provides as follows: ‘A person who, as a result 
of his or her acquisitions or those of the persons with whom he or she acts in 
collaboration, holds more than 33% of the voting rights of a commercial company 
shall be required to make a takeover bid to all holders of securities for all their 
holdings as soon as possible, but no later than two months after the person has 
reached that percentage of voting rights.’ 
Article 205 provides that the provisions of Article 203 are not to apply where the 
position representing more than 33% of the voting rights in the issuer has been 
acquired as a result of an exempt transaction and defines the exempt transactions. 
Article 2732(1)(ii)(c) of Law No 297/2004 provides as follows: ‘(1) Failure to 
comply with the obligations laid down in Article 203 relating to the opening, 
within the period prescribed by law, of a mandatory takeover bid constitutes an 
administrative offence and is penalised as follows: […] (ii) for legal persons: […] 
(c) an [administrative] fine of between 0.1% and 10% of total turnover in the 
business year preceding the imposition of the fine, where the statutory time limit 
has been exceeded by more than 60 days.’ 
Legea nr. 151 din 22 octombrie 2014 privind clarificarea statutului juridic al 
acțiunilor care se tranzacționează pe Piața RASDAQ sau pe piața valorilor 
mobiliare necotate (Law No 151 of 22 October 2014 on the clarification of the 
legal status of shares traded on the RASDAQ market or the unlisted securities 
market), which, in Article 2(1) thereof, provides that: ‘The management boards of 
companies whose shares are traded on the RASDAQ market or on the unlisted 
securities market shall be obliged to call and carry out all of the necessary 
activities to hold an extraordinary general meeting of the shareholders, within 
120 days from the entry into force of this law, under the conditions established in 
the Legea societăților nr. 31/1990 (Law on Companies No 31/1990) […], in order 
for the shareholders to discuss the situation created by the absence of the legal 
framework for the operation of the RASDAQ market, and for the shareholders to 
make a decision on how the company will apply the legal procedure necessary for 
the admission to trading of the shares issued by the company on a regulated 
market or for the trading of those shares on an alternative trading system, on the 
basis of the provisions of Law No 297/2004, as amended and supplemented, and 
the regulations issued by the Financial Supervisory Authority (ASF).’ Article 9(1) 
of that law provides that: ‘The activity of the RASDAQ market and the unlisted 
securities market shall cease as of right 12 months after the date of entry into force 
of this law.’ 
Succinct presentation of the facts and procedure in the main proceedings 
1 By an application lodged on 29 December 2014 with the Curtea de Apel 
București, Secția a VIII-a contencios administrativ și fiscal (Court of Appeal of 
Bucharest, Eighth Division for Administrative and Tax Matters, Romania), 
SADALBARI S.R.L. (‘the applicant’) brought proceedings against the Autoritatea 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-163/25 
 
4  
de Supraveghere Financiară (Financial Supervisory Authority; ‘the defendant’ or 
‘the ASF’). By that application, the applicant sought the annulment of Decision 
No 1995 of 12 December 2024, by which the ASF ruled on the administrative 
complaint; it also sought the annulment of Decision No 15229 of 24 October 2014 
initially issued by the ASF, by which (i) a fine of 7 870.12 Romanian lei (RON) 
had been imposed on the applicant, representing 4% of its turnover for 2013 – on 
the ground that it ‘holds 69.0283% of the share capital of Romcab SA Târgu-
Mureș and has not made the mandatory takeover bid,’ the obligation laid down in 
Article 203(1) of Law No 297/2004 – and (ii) the applicant had been required to 
lodge with the ASF, together with the persons with whom it acts in collaboration, 
documents relating to the mandatory takeover bid for Romcab SA Târgu-Mureș. 
2 During the periods from 7 May 2015 to 20 October 2016 and from 29 December 
2016 to 4 August 2022, the main proceedings were suspended. Thus, on 7 May 
2015, the referring court suspended the main proceedings until the final ruling in 
the proceedings for the annulment of Decision A/236 of 27 March 2014, which 
formed the basis for the adoption of the penalty decision in the main proceedings. 
On 22 June 2016, in that second set of proceedings, the Înalta Curte de Casație și 
Justiție (High Court of Cassation and Justice, Romania) upheld the appeal brought 
by the defendant ASF against the judgment of the Court of Appeal of Bucharest of 
30 January 2015, set aside the judgment under appeal and, ruling again, dismissed 
the action brought by the applicant as unfounded. 
The essential arguments of the parties in the main proceedings 
3 In its pleadings, the applicant submits that it does not hold shares in the issuer 
Romcab SA Târgu-Mureș following market transactions, but as a result of a 
transaction exempted, under Article 205 of Law No 297/2004, from the obligation 
to launch a takeover bid. 
4 More specifically, the appliant was created in 2005 following a partial division of 
the company PANEURO COMPANY SRL, following which the block of shares 
representing 85.83% of the share capital of Romcab SA Târgu-Mureș was 
transferred in the form of assets to the applicant company, which was newly 
established at that time. PANEURO COMPANY SRL had, in 1999, acquired from 
the Fondul Proprietății de Stat (State Property Fund; FPS) the block of shares 
representing 62.833% of the share capital of Romcab SA Târgu-Mureș by means 
of a transaction exempted from the obligation to launch the takeover bid provided 
for in Article 203 of Law No 297/2004. Subsequently, but up to the date of the 
partial division, by increases in share capital, PANEURO COMPANY SRL’s 
holdings in the share capital of Romcab SA Târgu-Mureș reached 86.285%. 
5 On the other hand, with transactions carried out in the period 2007–2008 on the 
RASDAQ market, the applicant’s shareholdings in the share capital of Romcab 
SA Târgu-Mureș decreased to 69.0283%, a holding which also existed on the date 
on which the contested decisions in the main proceedings were issued. 
SADALBARI 
 
5 
6 The applicant submits that the contested decisions are unlawful in that, in essence, 
it acquired the block of shares representing 85.83% of the share capital of Romcab 
SA Târgu-Mureș following a transaction exempted from the obligation to launch a 
takeover bid, and then did not operate on a regulated market, within the meaning 
of Article 202 of Law No 297/2004. 
7 It observed that the RASDAQ market is not a regulated market within the 
meaning of Directive 2004/39 and the national implementing legislation. Since the 
definition of ‘regulated market’ is an autonomous concept of the European Union, 
not all authorised markets may be automatically regarded as regulated markets. 
Furthermore, that definition should not be interpreted in accordance with the usual 
meaning given to the term ‘regulated’. 
8 In its defence, the defendant ASF contended that the action should be dismissed 
and argued, in essence, that the contested decisions were lawful, since Romcab 
SA Târgu-Mureș is a company admitted to trading on the RASDAQ market, using 
the technical system made available by the Bursa de Valori București (Bucharest 
Stock Exchange; BVB), to which the provisions of Law No 297/2004 on the 
capital market and the provisions of administrative acts of a regulatory nature 
adopted pursuant to that law by the CNVM, the predecessor of the ASF, are 
applicable. 
9 The ASF has stated, both in the statement of reasons for the decision resolving the 
preliminary administrative complaint/request and in the statement of defence 
included in the case file, that, in the light of its statutory powers, it also monitors 
and regulates the functioning of the RASDAQ market, even though that market 
has not been included in any of the categories of trading platforms provided for by 
the EU rules. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 As a preliminary point, observations relating to the RASDAQ market are set out 
and it is stated that, during the relevant period (that of the applicant’s execution of 
the transactions on that market and the adoption of the contested decisions), it is 
the RASDAQ market regime that is referred to in paragraphs 18 to 20 and 22 of 
the Nilaș judgment. 
11 It is also stated that, although it entered into force after the adoption of the 
contested penalty decision, Article 2(1) of Law No 151/2014 – which lays down 
the obligation for the shareholders of the companies whose shares are traded on 
the RASDAQ market or on the market for unlisted shares to discuss the situation 
created by an absence of a legal framework for the operation of the RASDAQ 
market, and for the shareholders to make a decision on how the company will 
apply the legal procedure necessary for the admission to trading of the shares 
issued by the company on a regulated market or for the trading of those shares on 
an alternative trading system – and Article 9(1) of that law, which provides for the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-163/25 
 
6  
cessation of activity on the RASDAQ market, are also relevant to the 
classification and determination of the nature of the RASDAQ market. 
12 The referring court notes the existence, in the context of the present case, of 
established and consistent case-law of the High Court of Cassation and Justice, 
which continues even after the adoption of Law No 151/2014 (see, for example, 
judgment No 2076 of 22 June 2016), to the effect that the RASDAQ market is a 
regulated market and that, by the Nilaș judgment, the Court of Justice did not give 
a ruling on the RASDAQ market to the effect that it is not a regulated market, but 
confined itself strictly to the interpretation of the provisions of Article 4(1)(14) 
and Article 47 of Directive 2004/39/EC. 
13 The referring court notes that, according to the settled case-law of the High Court 
of Cassation and Justice, the Court of Justice is considered, more specifically, to 
have ruled only on the interpretation of the provisions of EU law in Directive 
2004/39/EC, avoiding in its reply any reference to the RASDAQ market, even 
though that market was expressly mentioned in the questions referred for a 
preliminary ruling, since the role of the Court of Justice is to interpret EU law and 
not to apply it to a specific case (judgment of 15 July 1964 in Case 6/64, Costa v. 
E.N.E.L.). Furthermore, it is submitted that the analysis of the Nilaș judgment 
does not show that the Court of Justice held that the RASDAQ market is not a 
regulated market. 
14 The High Court of Cassation and Justice considers that the classification of the 
RASDAQ market as an unregulated market, to which the provisions of Law 
No 297/2004 do not apply, is incorrect. That court observed that, during the 
relevant period, it was not explicitly clarified whether or not the RASDAQ market 
was a regulated market within the meaning of Law No 297/2004 and the relevant 
EU rules of Directive 2004/39/EC. However, this cannot automatically lead to the 
conclusion that the RASDAQ market is not a regulated market but an alternative 
trading system. 
15 Referring to the operative part of the Nilaș judgment, the referring court considers 
that the case-law of the High Court of Cassation and Justice is, at least apparently, 
contrary to the Nilaș judgment and the principle of the primacy of EU law. In 
accordance with Article 267 TFEU, read in conjunction with Article 19(3)(b) 
TEU, the referring court is to refer a question to the Court of Justice for a 
preliminary ruling. 
16 Similarly, that court also raises of its own motion the objection that the provisions 
of Article 203(1) and Article 2732(1)(ii)(c) of Law No 297/2004 are 
unconstitutional and submits that objection to the Curtea Constituțională 
(Constitutional Court, Romania).