UBS Europe SE and Alain Hondequin and Others v DV and Others.
Date: 2018-09-13
28


In the first place, with regard to the situations referred to by the phrase ‘cases covered by criminal law’ within the meaning of Article 54(1) and (3) of Directive 2004/39, read in conjunction with Article 41 of the Charter, it should be noted that it is clear from the wording of Article 41 of the Charter that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union (judgments of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 83 and of 9 March 2017, Doux, C‑141/15, EU:C:2017:188, paragraph 60). It follows that Article 41 of the Charter is irrelevant to the case in the main proceedings.
30


Account should therefore be taken, in accordance with well-established case-law, of the context of Article 54 of Directive 2004/39 and the objectives pursued by that directive (see, to that effect, judgment of 22 April 2015, Drukarnia Multipress, C‑357/13, EU:C:2015:253, paragraph 22 and the case-law cited).
31


It should be borne in mind that it is apparent from recital 2 of the directive that its purpose is to provide for the degree of harmonisation required to offer investors a high level of protection and to allow investment firms to provide services throughout the European Union on the basis of home country supervision (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 26).
32


It is also apparent from the second sentence of recital 63 of Directive 2004/39 that, due to increasing cross-border activity, competent authorities of the various Member States should provide each other with the information that is necessary for the exercise of their functions, so as to ensure the effective enforcement of that directive (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 27).
33


Thus, under Article 17(1) of Directive 2004/39, the Member States must ensure that the competent authorities continuously monitor the activities of investment firms so as to assess compliance with their obligations (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 28).
34


Article 50(1) and (2) of that directive provide that the competent authorities must have all supervisory and investigatory powers that are necessary for the exercise of their functions, including the rights to have access to any document and to demand information from any person (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 29).
35


Further, Article 56(1) of Directive 2004/39 states that competent authorities are to render assistance to competent authorities of the other Member States. In particular, they must exchange information and cooperate in any investigation or supervisory activities (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 30).
36


The effective monitoring of the activities of investment firms, through supervision within a Member State and the exchanging of information by the competent authorities of several Member States, as briefly described in the preceding paragraphs, requires that both the supervised entities and the competent authorities can have confidence that the confidential information provided will, in principle, remain confidential (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 31).
37


As is clear from, in particular, the last sentence of recital 63 of Directive 2004/39, the absence of such confidence is liable to compromise the smooth transmission of the confidential information that is necessary for monitoring (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 32).
38


Therefore, in order to protect not only the specific interests of the firms directly concerned, but also the public interest in the normal functioning of the markets in financial instruments of the European Union, Article 54(1) of Directive 2004/39 imposes, as a general rule, the obligation of professional secrecy (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 33).
39


In that regard, the Court has stated that Article 54 of Directive 2004/39 establishes the general rule that disclosure of confidential information held by the competent authorities is prohibited and lists exhaustively the specific cases where, exceptionally, that general prohibition does not preclude their communication or use (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 38).
41


As the phrase ‘cases covered by criminal law’, used in Article 54(1) and (3) of Directive 2004/39, is an exception to the general rule that disclosure of confidential information held by the competent authorities is prohibited, it must be interpreted strictly (see, to that effect, judgment of 22 April 2010, Commission v United Kingdom, C‑346/08, EU:C:2010:213, paragraph 39 and the case-law cited).
50


The explanations relating to the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 47), make clear that Articles 47 and 48 of the Charter ensure that the protection conferred by Articles 6 and 13 ECHR is safeguarded under EU law. It is therefore appropriate to refer to those articles of the Charter alone.
51


Furthermore, it should be borne in mind that the Court has consistently held that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law and that the applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter (judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 49 and the case-law cited).
53


What is more, it should also be borne in mind that, in accordance with a general principle of interpretation, an EU measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 48).
55


In order to ensure the observance of that fundamental right within the European Union, the second subparagraph of Article 19(1) TEU lays down that Member States are to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law (judgment of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraph 78).
56


As regards, specifically, the existence of a right guaranteed by EU law within the meaning of the first paragraph of Article 47 of the Charter, it should be borne in mind that, according to settled case-law, protection against arbitrary or disproportionate intervention by public authorities in the sphere of the private activities of any natural or legal person constitutes a general principle of EU law. That protection may be invoked by a relevant person in respect of a measure adversely affecting him (see, to that effect, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraphs 51 and 52).
59


Secondly, as regards the right to a fair trial, guaranteed by the second paragraph of Article 47 of the Charter, it is important to note that respect for the rights of the defence is a particular aspect of the right to a fair trial (see, to that effect, ECtHR, 1 June 2010, Gäfgen v. Germany, ECLI:CE:ECHR:2010:0601JUD002297805, § 169, and judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 48). Respect for the rights of the defence is also enshrined in Article 48(2) of the Charter.
60


The Court has emphasised that the rights of the defence must be observed in all proceedings initiated against a person which may well culminate in a measure adversely affecting that person (see, to that effect, judgment of 13 February 1979, Hoffmann-La Roche v Commission, 85/76, EU:C:1979:36, paragraph 9; of 2 October 2003, ARBED v Commission, C‑176/99 P, EU:C:2003:524, paragraph 19, and of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraph 83).
61


The right of access to the file is, in turn, the necessary corollary of the effective exercise of the rights of the defence (see, to that effect, judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P, EU:C:2002:582, paragraph 316, and of 1 July 2010, Knauf Gips v Commission, C‑407/08 P, EU:C:2010:389, paragraph 22).
62


However, it is settled case-law that fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, in the light of the objectives pursued, a disproportionate and intolerable interference which impairs the very substance of the rights guaranteed (judgments of 18 March 2010, Alassini and Others, C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 63, and of 26 September 2013, Texdata Software, C‑418/11, EU:C:2013:588, paragraph 84).
63


Such restrictions may, in particular, be designed to protect requirements of confidentiality or professional secrecy, which are liable to be infringed by access to certain information and certain documents (see, to that effect, judgment of 9 November 2017, Ispas, C‑298/16, EU:C:2017:843, paragraph 36).
65


In that connection, the Court has ruled that the general prohibition on the disclosure of confidential information laid down in Article 54(1) of Directive 2004/39 applies to information held by the competent authorities (i) which is not public and (ii) the disclosure of which is likely to affect adversely the interests of the natural or legal person who provided that information or of third parties, or the proper functioning of the system for monitoring the activities of investment firms that the EU legislature established in adopting Directive 2004/39 (judgment of 19 June 2018, Baumeister, C‑15/16, EU:C:2018:464, paragraph 35).
66


Moreover, as concerns the right of access to the file specifically, it is well-established case-law that it means that the person who is the subject of a measure adversely affecting him must have the opportunity to examine all of the documents in the investigation that might be relevant for his defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets concerning other persons, internal documents of the authority that adopted the measure and other confidential information (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 68, and of 25 October 2011, Solvay v Commission, C‑110/10 P, EU:C:2011:687, paragraph 49).
67


As for the documents that must be included in the investigation file, it must be noted that it is also apparent from the Court’s case-law that although it cannot be solely for the authority who notifies any objections and adopts the decision imposing a penalty to determine the documents of use in the defence of the person concerned, it is however allowed to exclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation (see, to that effect, judgments of 7 January 2004, Aalborg Portland and Others v Commission, C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 126 and the case-law cited).
69


Accordingly, in the event of a conflict of, on the one hand, the interest of the person who is the subject of a measure adversely affecting him in having access to the information necessary for him to be in a position to exercise fully his rights of defence and, on the other hand, the interests in connection with maintaining the confidentiality of the information covered by the obligation of professional secrecy, it is for the competent authorities or courts to seek to strike a balance between these opposing interests in the light of the circumstances of each case (see, to that effect, judgment of 14 February 2008, Varec, C‑450/06, EU:C:2008:91, paragraphs 51 and 52 and the case-law cited).