Opinion of the Advocate General — ECLI:EU:C:2017:669
Date: 2017-09-12
Language of the case: Italian
Subject matter: Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Italy

Summary — Judgment of the Court (Grand Chamber), 20 March 2018 1. Approximation of laws — Insider dealing — Prohibition — Penalties — Obligation of Member States to provide for effective, proportionate and dissuasive administrative sanctions — Scope — Possibility to provide for a duplication of administrative and criminal penalties — Limit — Respect for the ne bis in idem principle (Charter of Fundamental Rights of the European Union, Art. 50; European Parliament and Council Directive 2003/6, Art. 14(1)) 2. Fundamental rights — Ne bis in idem principle — National legislation not permitting the bringing of proceedings for an administrative penalty of a criminal nature against a person, for insider dealing, who was already the subject of a final criminal judgment of acquittal for the same acts — Lawfulness (Charter of Fundamental Rights of the European Union, Arts 50 and 52(1); European Parliament and Council Directive 2003/6, Art. 14(1)) 3. Fundamental rights — Ne bis in idem principle — Conditions under which applicable — Existence of the same offence — Duplication of proceedings and penalties of a criminal nature — Criteria for assessment (Charter of Fundamental Rights of the European Union, Art. 50) 4. Fundamental rights — Ne bis in idem principle — Restriction — National legislation providing for the duplication of an administrative penalty of a criminal nature and a criminal penalty — Lawfulness — Conditions — Limitation fulfilling an objective of general interest — Objective of protecting the integrity of financial markets in the Union and public confidence in financial instruments — Included (Charter of Fundamental Rights of the European Union, Arts 50 and 52(1)) 1. In that regard, it must be noted that Article 14(1) of Directive 2003/6, read in conjunction with Articles 2 and 3 thereof, requires Member States to have rules on effective, proportionate and dissuasive penalties for violations of the prohibition on insider dealing. Although the Court has held that Article 14(1) of that directive merely requires Member States to provide administrative penalties presenting those characteristics, without requiring Member States also to lay down criminal sanctions against authors of insider dealing (see, to that effect, judgment of 23 December 2009, Spector Photo Group and Van Raemdonck, C‑45/08, EU:C:2009:806, paragraph 42), the fact remains that Member States are also entitled to provide for a duplication of criminal and administrative sanctions, complying, however, with the limits imposed by EU law and, in particular, those resulting from the ne bis in idem principle guaranteed by Article 50 of the Charter, the latter applying, in accordance with Article 51(1) thereof, when implementing that law. (see para. 26) 2. Article 14(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), read in the light of Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation in accordance with which proceedings for an administrative fine of a criminal nature may not be brought following a final criminal judgment of acquittal ruling that the acts capable of constituting a violation of the legislation relating to insider dealing, on the basis of which those proceedings had also been initiated, were not established. In that regard, it should be noted that neither Article 14(1) nor any other provision of Directive 2003/6 states the effects of a final criminal judgment on proceedings for an administrative fine. Moreover, in light of the importance of the principle of res judicata both in the legal order of the EU and in national legal orders, the Court has held that EU law does not preclude the application of national procedural rules conferring res judicata effects on a judicial decision (see, to that effect, as regards the principle of effectiveness, judgments of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraphs 58 and 59, and of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraphs 28 and 29). Such an assessment is without prejudice to the possibility, provided for in Article 4(2) of Protocol No 7 to the ECHR, to reopen, where appropriate, criminal proceedings where there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the criminal judgment. That interpretation is confirmed by Article 50 of the Charter. In that regard, it should be pointed out that the objective of protecting the integrity of financial markets and public confidence in financial instruments is such as to justify a duplication of proceedings and penalties of a criminal nature such as that provided for by the national legislation at issue in the main proceedings, where those proceedings and penalties have, for the purpose of achieving such an objective, additional complementary objectives covering, as the case may be, different aspects of the same unlawful conduct at issue (see, to that effect, judgment of 20 March 2018, Garlsson Real Estate, C‑537/16, EU:C:2018:0000, paragraph 46). However, the bringing of proceedings for an administrative fine of a criminal nature, such as those at issue in the main proceedings, following the final conclusion of criminal proceedings, is subject to strict compliance with the principle of proportionality (see, to that effect, judgment of 20 March 2018, Garlsson Real Estate, C‑537/16, EU:C:2018:0000, paragraph 48). In a situation such as that at issue in the main proceedings, the bringing of proceedings for an administrative fine of a criminal nature clearly exceeds what is necessary in order to achieve the objective referred to in paragraph 42 of the present judgment, since there exists a judgment of acquittal holding that there are no factors constituting an offence which Article 14(1) of Directive 2003/6 seeks to punish. It must be added that, according to the wording itself of Article 50 of the Charter, the protection conferred by the ne bis in idem principle is not limited to situations in which the person concerned has been subject to a criminal conviction, but extends also to those in which that person is finally acquitted. (see paras 30, 31, 35, 37, 39, 42-44, 46, operative part) 3. See the text of the decision. (see para. 38) 4. See the text of the decision. (see para. 42)