# C_2018427EN.01001301.xml

| 26.11.2018 | EN | Official Journal of the European Union | C 427/13 |
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26.11.2018

EN

Official Journal of the European Union

C 427/13

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Request for a preliminary ruling from the Bundesverwaltungsgericht (Austria) lodged on 23 August 2018 — FN and Others

(Case C-546/18)

(2018/C 427/19)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Appellants: FN, GM, Adler Real Estate AG, HL, Petrus Advisers LLP

Defendant authority: Übernahmekommission

Questions referred

| 1. | Do Articles 4 and 17 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (1) — read in the light of the principle of effectiveness under EU law — preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive 2004/25/EC by means of which a natural person’s breach of national provisions adopted in implementation of Directive 2004/25/EC was established is not given binding effect in the context of administrative-penalty proceedings subsequently conducted by that supervisory authority against that same person, as a consequence of which that person once again has all the factual and legal pleas and evidence available to him to challenge the breach of law established in the decision that already has the force of res judicata? |
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1.

Do Articles 4 and 17 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (1) — read in the light of the principle of effectiveness under EU law — preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive 2004/25/EC by means of which a natural person’s breach of national provisions adopted in implementation of Directive 2004/25/EC was established is not given binding effect in the context of administrative-penalty proceedings subsequently conducted by that supervisory authority against that same person, as a consequence of which that person once again has all the factual and legal pleas and evidence available to him to challenge the breach of law established in the decision that already has the force of res judicata?

| 2. | Do Articles 4 and 17 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids — read in the light of the principle of effectiveness under EU law — preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive 2004/25/EC by means of which a legal person’s breach of national provisions adopted in implementation of Directive 2004/25/EC was established is not given binding effect in the context of administrative-penalty proceedings subsequently conducted by that supervisory authority against the body authorised to represent that legal person, as a consequence of which that legal person (the body) once again has all the factual and legal pleas and evidence available to it to challenge the breach of law established in the decision that already has the force of res judicata? |
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2.

Do Articles 4 and 17 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids — read in the light of the principle of effectiveness under EU law — preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive 2004/25/EC by means of which a legal person’s breach of national provisions adopted in implementation of Directive 2004/25/EC was established is not given binding effect in the context of administrative-penalty proceedings subsequently conducted by that supervisory authority against the body authorised to represent that legal person, as a consequence of which that legal person (the body) once again has all the factual and legal pleas and evidence available to it to challenge the breach of law established in the decision that already has the force of res judicata?

| 3. | If Question 1 is answered in the negative:
  Does Article 47 of the Charter of Fundamental Rights of the European Union preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive 2004/25/EC by means of which a natural person’s breach of national provisions adopted in implementation of Directive 2004/25/EC was established is given binding effect in the context of administrative-penalty proceedings subsequently conducted by that supervisory authority against that same person, with the result that that person is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata? |
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3.

If Question 1 is answered in the negative:

Does Article 47 of the Charter of Fundamental Rights of the European Union preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive 2004/25/EC by means of which a natural person’s breach of national provisions adopted in implementation of Directive 2004/25/EC was established is given binding effect in the context of administrative-penalty proceedings subsequently conducted by that supervisory authority against that same person, with the result that that person is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata?

| 4. | If Question 2 is answered in the negative:
  Does Article 47 of the Charter of Fundamental Rights of the European Union preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive 2004/25/EC by means of which a legal person’s breach of national provisions adopted in implementation of Directive 2004/25/EC was established is given binding effect in the context of administrative-penalty proceedings subsequently conducted by that supervisory authority against the body authorised to represent that legal person, with the result that that person (the body) is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata? |
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4.

If Question 2 is answered in the negative:

Does Article 47 of the Charter of Fundamental Rights of the European Union preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive 2004/25/EC by means of which a legal person’s breach of national provisions adopted in implementation of Directive 2004/25/EC was established is given binding effect in the context of administrative-penalty proceedings subsequently conducted by that supervisory authority against the body authorised to represent that legal person, with the result that that person (the body) is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata?

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(1)  OJ 2004 L 142, p. 12.

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