Spector Photo Group NV and Chris Van Raemdonck v Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA).
Date: 2009-12-23
25. In that regard, it must be recalled that, in proceedings under Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of Community law, the Court is in principle bound to give a ruling (see, inter alia, Case C‑119/05 Lucchini  [2007] ECR I‑6199, paragraph 43, and Case C‑414/07 Magoora  [2008] ECR I‑0000, paragraph 22).
26. According to settled case-law, questions on the interpretation of Community law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of Community law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, to that effect, Joined Cases C‑222/05 to C‑225/05 van der Weerd and Others  [2007] ECR I-4233, paragraph 22 and the case-law cited).
37. The fact that Article 2(1) of Directive 2003/6 does not expressly provide for a mental element among the constituent elements of insider dealing can be explained, second, by the purpose of Directive 2003/6, which, as is pointed out, inter alia, in the second and twelfth recitals in the preamble thereto, is to ensure the integrity of Community financial markets and to enhance investor confidence in those markets. The Community legislature opted for a preventative mechanism and for administrative sanctions for insider dealing, the effectiveness of which would be weakened if made subject to a systematic analysis of the existence of a mental element. As pointed out by the Advocate General in point 55 of her Opinion, only if the prohibition on insider dealing allows infringements to be effectively sanctioned does it prove to be powerful and encourage compliance with the rules by all market actors on a lasting basis. The effective implementation of the prohibition on market transactions is thus based on a simple structure in which subjective grounds of defence are limited, not only to enable sanctions to be imposed but also to prevent effectively infringements of that prohibition.
40. It should be noted in that regard that, according to settled case‑law, fundamental rights form an integral part of the general principles of law whose observance the Court ensures (Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation  v Council and Commission  [2008] ECR I‑6351, paragraph 283).
41. It is also apparent from the Court’s case‑law that respect for human rights is a condition of the lawfulness of Community acts and that measures incompatible with respect for human rights are not acceptable in the Community ( Kadi and Al Barakaat International Foundation  v Council and Commission , paragraph 284).
42. It is true that Article 14(1) of Directive 2003/6 does not oblige the Member States to provide for criminal sanctions against authors of insider dealing but merely states that those States are required to ensure that ‘the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible where the provisions adopted in the implementation of [that d]irective have not been complied with’, the Member States being required, in addition, to ensure that those measures are ‘effective, proportionate and dissuasive’. None the less, in the light of the nature of the infringements at issue and the degree of severity of the sanctions which may be imposed, such sanctions may, for the purposes of the application of the ECHR, be qualified as criminal sanctions (see, by analogy, Case C‑199/92 P Hüls  v Commission [1999] ECR I‑4287, paragraph 150; Eur. Court H. R., Engel and Others  v the Netherlands , judgment of 8 June 1976, Series A no. 22, § 82; Öztürk  v Germany , judgment of 21 February 1984, Series A no. 73, § 53; and Lutz  v Germany , judgment of 25 August 1987, Series A no. 123, § 54).
43. According to the case‑law of the European Court of Human Rights, presumptions of fact or of law operate in every legal system and the ECHR clearly does not prohibit such presumptions in principle. It does, however, require the Contracting States to remain within certain limits in this respect as regards criminal law. Thus, the principle of the presumption of innocence, laid down in Article 6(2) of the ECHR, does not regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (see Salabiaku  v France , judgment of 7 October 1988, Series A no. 141, § 28, and Pham Hoang  v France , judgment of 25 September 1992, Series A no. 243, § 33).
44. This Court considers that the principle of the presumption of innocence does not preclude the presumption in Article 2(1) of Directive 2003/6 that the intention of the author of insider dealing can be inferred implicitly from the constituent material elements of that infringement, provided that that presumption is open to rebuttal and the rights of the defence are guaranteed.
47. To that end, reference needs to be made to the purpose of Directive 2003/6. As is apparent from its title, that directive seeks to tackle market abuse. The second and twelfth recitals in the preamble thereto state that, following the example of Directive 89/592, it prohibits insider dealing with the aim of protecting the integrity of financial markets and enhancing investor confidence, a confidence which depends, inter alia, on investors being placed on an equal footing and protected against the improper use of inside information (see, by analogy, Case C‑384/02 Grøngaard and Bang  [2005] ECR I‑9939, paragraphs 22 and 33).
48. Thus, the purpose of the prohibition laid down by Article 2(1) of Directive 2003/6 is to ensure equality between the contracting parties in stock-market transactions by preventing one of them who possesses inside information and who is, therefore, in an advantageous position vis-à-vis other investors, from profiting from that information, to the detriment of those who are unaware of it (see, by analogy, Case C‑391/04 Georgakis [2007] ECR I‑3741, paragraph 38).
52. Owing to its non-public and precise nature and its ability to influence the prices of financial instruments significantly, inside information grants the insider in possession of such information an advantage in relation to all the other actors on the market who are unaware of i t. It enables that insider, when he acts in accordance with that information in entering into a transaction on the market, to expect to derive an economic advantage from it without exposing himself to the same risks as the other investors on the market. The essential characteristic of insider dealing thus consists in an unfair advantage being obtained from information to the detriment of third parties who are unaware of it and, consequently, the undermining of the integrity of financial markets and investor confidence.
71. It must be noted that Article 14(1) of Directive 2003/6 does not establish any criteria for assessing how effective, proportionate and dissuasive a sanction is. It is for national legislation to define those criteria.
72. It should be noted, however, that the 38th recital in the preamble to Directive 2003/6 states that sanctions should be sufficiently dissuasive and proportionate to the gravity of the infringement and to the gains realised and should be consistently applied.