# C_2010051EN.01000602.xml

| 27.2.2010 | EN | Official Journal of the European Union | C 51/6 |
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27.2.2010

EN

Official Journal of the European Union

C 51/6

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Judgment of the Court (Third Chamber) of 23 December 2009 (reference for a preliminary ruling from the Hof van beroep te Brussel (Belgium)) — Spector Photo Group NV, Chris Van Raemdonck v Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA)

(Case C-45/08) (1)

1

(Directive 2003/6 - Insider dealing - Use of inside information - Sanctions - Conditions)

2010/C 51/09

Language of the case: Dutch

Referring court

Referring court

Hof van beroep te Brussel

Parties to the main proceedings

Parties to the main proceedings

Applicant: Spector Photo Group NV, Chris Van Raemdonck

Applicant:

Defendant: Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA)

Defendant:

Re:

Re:

Reference for a preliminary ruling — Hof van beroep te Brussel — Interpretation of Articles 2 and 14 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) (OJ 2003 L 96, p. 16) and of Article 1 of Commission Directive 2003/124/EC of 22 December 2003 implementing Directive 2003/6/EC (OJ 2003 L 339, p. 70) — Use of inside information — Maximum harmonisation leaving Member States with no discretion as regards the definition of insider dealing — Sanctions which may be imposed — Conditions

Operative part of the judgment

Operative part of the judgment

| 1. | On a proper interpretation of Article 2(1) 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), the fact that a person as referred to in the second subparagraph of that provision, in possession of inside information, acquires or disposes of, or tries to acquire or dispose of, for his own account or for the account of a third party, either directly or indirectly, the financial instruments to which that information relates implies that that person has ‘used that information’ within the meaning of that provision, but without prejudice to the rights of the defence and, in particular, to the right to be able to rebut that presumption. The question whether that person has infringed the prohibition on insider dealing must be analysed in the light of the purpose of that directive, which is to protect the integrity of the financial markets and to enhance investor confidence, which is based, in particular, on the assurance that investors will be placed on an equal footing and protected from the misuse of inside information. |
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1.

On a proper interpretation of Article 2(1) 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), the fact that a person as referred to in the second subparagraph of that provision, in possession of inside information, acquires or disposes of, or tries to acquire or dispose of, for his own account or for the account of a third party, either directly or indirectly, the financial instruments to which that information relates implies that that person has ‘used that information’ within the meaning of that provision, but without prejudice to the rights of the defence and, in particular, to the right to be able to rebut that presumption. The question whether that person has infringed the prohibition on insider dealing must be analysed in the light of the purpose of that directive, which is to protect the integrity of the financial markets and to enhance investor confidence, which is based, in particular, on the assurance that investors will be placed on an equal footing and protected from the misuse of inside information.

| 2. | Article 14(1) of Directive 2003/6 must be interpreted as meaning that gains realised from insider dealing may constitute a relevant element for the purposes of determining a sanction which is effective, proportionate and dissuasive. The method of calculation of those economic gains and, in particular, the date or the period to be taken into account are to be determined by national law. |
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2.

Article 14(1) of Directive 2003/6 must be interpreted as meaning that gains realised from insider dealing may constitute a relevant element for the purposes of determining a sanction which is effective, proportionate and dissuasive. The method of calculation of those economic gains and, in particular, the date or the period to be taken into account are to be determined by national law.

| 3. | Article 14(1) of Directive 2003/6 must be interpreted as meaning that, if, in addition to the administrative sanctions laid down in that provision, a Member State has introduced the possibility of imposing a criminal financial sanction, it is not necessary, for the purposes of assessing whether the administrative sanction is effective, proportionate and dissuasive, to take account of the possibility and/or the level of a criminal sanction which may subsequently be imposed. |
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3.

Article 14(1) of Directive 2003/6 must be interpreted as meaning that, if, in addition to the administrative sanctions laid down in that provision, a Member State has introduced the possibility of imposing a criminal financial sanction, it is not necessary, for the purposes of assessing whether the administrative sanction is effective, proportionate and dissuasive, to take account of the possibility and/or the level of a criminal sanction which may subsequently be imposed.

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(1)  OJ C 107, 26.4.2008.

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