Case C-45/08: Reference for a preliminary ruling from the Hof van beroep te Brussel, Belgium lodged on 8 February 2008 — Spector Photo Group NV and Chris Van Raemdonck v Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA)
Date: 2008-02-08
Institutions: Court of Justice
Subjects: dissemination of information, financial legislation, financial market, insider trading, interpretation of the law, penalty

C 107/14

EN

Official Journal of the European Union

26.4.2008

6. If the directive is to be interpreted in such a way that the
consultation procedure to be carried on within the subsidiary
company must be concluded before the decision giving rise
to collective redundancies of employees is taken within the
parent company or group management, is it only a decision
whose direct consequence is the implementation of collective
redundancies in the subsidiary company that is relevant in
that connection, or must
the consultation procedure be
brought to a conclusion already before a commercial or stra-
tegic decision is taken within the parent company or the
group management on the basis of which collective redun-
dancies in the subsidiary company are probable but not yet
finally certain?

Member States to interpret measures as they wish, or do
they, in their entirety, concern a minimum of harmonisation?

the mere fact

2. Should Article 2(1) of the Market Abuse Directive be inter-
preted as meaning that
that a person as
referred to in Article 2(1) of that directive possesses inside
information and acquires or disposes of, or tries to acquire
or dispose of, for his own account or for the account of a
third party, financial instruments to which that inside infor-
mation relates, signifies in itself that he makes use of his
inside information?

(1) Council directive 98/59/EC of 20 July 1998 on the approximation of
the laws of the Member States relating to collective redundancies
(OJ 1998 L 225, p. 16).

3. If the answer to the second question is negative, must it then
be assumed that the application of Article 2 of the Market
Abuse Directive presupposes that a deliberate decision has
been taken to use inside information?

If such a decision may also be unwritten, is it then required
that the decision to use inside information is evident from
circumstances susceptible to no other interpretation, or is it
sufficient that those circumstances could be so interpreted?

4. If in the determination of the proportionate nature of an
administrative sanction, as referred to in Article 14 of the
Market Abuse Directive, account must be taken of the gains
realised, should it be assumed that the publication of infor-
mation to be designated as inside information has indeed
had a significant effect on the price of the financial instru-
ment?

If so, what minimum level of price movement must have
occurred for it to be possible to regard it as significant?

5. Whether or not the price movement after the publication of
information must be significant, what period should be
taken into account after the publication of the information
for the determination of the scale of the price movement,
and what date should be taken as the basis for gauging the
financial advantage gained in the determination of the appro-
priate sanction?

the sanction, should Article 14 of

6. In the light of the determination of the proportionate nature
of
the Market Abuse
Directive be interpreted as meaning that, if a Member State
has introduced the option of a criminal sanction, combined
with an administrative sanction, account must be taken of
the option and level of a criminal financial penalty in the
consideration of its proportionality?

(1) 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).

Reference for a preliminary ruling from the Hof van
beroep te Brussel, Belgium lodged on 8 February 2008 —
Spector Photo Group NV and Chris Van Raemdonck v
Commissie voor het Bank-, Financie- en Assurantiewezen
(CBFA)

(Case C-45/08)

(2008/C 107/21)

Language of the case: Dutch

Referring court

Hof van beroep te Brussel, Belgium

Parties to the main proceedings

Applicants: Spector Photo Group NV and Chris Van Raemdonck

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

Questions referred

1. Do the provisions of the Market Abuse Directive (1), and
especially Article 2 thereof, call for full harmonisation, with
the exception of those provisions which explicitly permit the