Case C-248/11

Criminal proceedings

against

Rareş Doralin Nilaş and Others

(Reference for a preliminary ruling from the Curtea de Apel Cluj)

‛Directive 2004/39/EC — Markets in financial instruments — Article 4(1)(14) — Concept of ‘regulated market’ — Authorisation — Functional requirements — Market whose legal nature is not specified, but which is managed, after a merger, by a legal person also managing a regulated market — Article 47 — Not included on the list of regulated markets — Directive 2003/6/EC — Scope — Market manipulation’

Summary of the Judgment

1. Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Regulated market — Meaning

   (European Parliament and Council Directive 2004/39, as amended by Directive 2007/44, Art. 4(1)(14)

2. Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Regulated market — Condition for classification

   (European Parliament and Council Directive 2004/39, as amended by Directive 2007/44, Art. 47)

1.  Article 4(1)(14) of Directive 2004/39 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12 and repealing Directive 93/22/EEC, as amended by Directive 2007/44, must be interpreted as meaning that a market in financial instruments that does not satisfy the requirements in Title III of that directive does not fall within the concept of ‘regulated market’, as defined in that provision, notwithstanding the fact that its operator merged with the operator of such a regulated market. The possibility of a market’s being classified as a regulated market by reason of such a merger is not provided for in Title III or in the other titles of that directive.

   (see paras 44, 49, operative part 1)

2.  Article 47 of Directive 2004/39 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12 and repealing Directive 93/22/EEC, as amended by Directive 2007/44, must be interpreted as meaning that the inclusion of a market in the list of regulated markets referred to in that article is not a precondition for the classification of that market as a regulated market within the meaning of that directive.

   It follows that the fact of being included in that list is not a constituent element of the classification of a market in financial instruments as a regulated market within the meaning of Directive 2004/39. Therefore, the mere fact of its not being included in that list is not enough to exclude that market’s being a regulated market.

   (see paras 54, 55, operative part 2)

Case C-248/11

Criminal proceedings

against

Rareş Doralin Nilaş and Others

(Reference for a preliminary ruling from the Curtea de Apel Cluj)

‛Directive 2004/39/EC — Markets in financial instruments — Article 4(1)(14) — Concept of ‘regulated market’ — Authorisation — Functional requirements — Market whose legal nature is not specified, but which is managed, after a merger, by a legal person also managing a regulated market — Article 47 — Not included on the list of regulated markets — Directive 2003/6/EC — Scope — Market manipulation’

Summary of the Judgment

1. Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Regulated market — Meaning

   (European Parliament and Council Directive 2004/39, as amended by Directive 2007/44, Art. 4(1)(14)

2. Freedom of establishment — Freedom to provide services — Markets in financial instruments — Directive 2004/39 — Regulated market — Condition for classification

   (European Parliament and Council Directive 2004/39, as amended by Directive 2007/44, Art. 47)

1.  Article 4(1)(14) of Directive 2004/39 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12 and repealing Directive 93/22/EEC, as amended by Directive 2007/44, must be interpreted as meaning that a market in financial instruments that does not satisfy the requirements in Title III of that directive does not fall within the concept of ‘regulated market’, as defined in that provision, notwithstanding the fact that its operator merged with the operator of such a regulated market. The possibility of a market’s being classified as a regulated market by reason of such a merger is not provided for in Title III or in the other titles of that directive.

   (see paras 44, 49, operative part 1)

2.  Article 47 of Directive 2004/39 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12 and repealing Directive 93/22/EEC, as amended by Directive 2007/44, must be interpreted as meaning that the inclusion of a market in the list of regulated markets referred to in that article is not a precondition for the classification of that market as a regulated market within the meaning of that directive.

   It follows that the fact of being included in that list is not a constituent element of the classification of a market in financial instruments as a regulated market within the meaning of Directive 2004/39. Therefore, the mere fact of its not being included in that list is not enough to exclude that market’s being a regulated market.

   (see paras 54, 55, operative part 2)