OPINION OF ADVOCATE GENERAL
M. CAMPOS SÁNCHEZ-BORDONA
delivered on 12 September 2017 (1)
Joined Cases C‑596/16 and C‑597/16
Enzo Di Puma
v
Commissione Nazionale per le Società e la Borsa (Consob) (C‑596/16)
and
Commissione Nazionale per le Società e la Borsa (Consob)
v
Antonio Zecca (C‑597/16)
(Request for a preliminary ruling
from the Corte suprema di cassazione (Supreme Court of Cassation, Italy))
(Charter of Fundamental Rights of the European Union — Directive 2003/6/EC — Disclosure of inside information — National law which provides for an administrative penalty and a criminal penalty for the same acts — Judgment of acquittal in criminal proceedings which establishes that the facts constituting the offence have not been made out — Article 50 of the Charter of Fundamental Rights of the European Union — Infringement of the ne bis in idem principle)
1. In the Opinion in Menci, (2) which is delivered at the same time as this Opinion, I analyse the extent to which the ne bis in idem principle applies when the laws of some Member States permit the joint imposition of administrative and criminal penalties to punish non-payment of VAT. These references for a preliminary ruling concern the same problem, although this time the conduct that is punished twice comes within the area of ‘market abuse’, in particular, insider dealing.
2. The harmonisation of administrative sanctions in this field was effected by Directive 2003/6/EC, (3) which was subsequently repealed by Regulation No 596/2014. (4) That regulation completely harmonised the system of administrative sanctions, whilst Directive 2014/57/EU (5) also harmonised, albeit only partially, the criminal sanctions to be imposed by Member States in respect of such conduct. (6)
I. Legal framework
A. European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (‘ECHR’)
3. Article 4 of Protocol No 7 annexed to the ECHR, signed in Strasbourg on 22 November 1984 (‘Protocol No 7’), governs the ‘Right not to be tried or punished twice’, as follows:
‘1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and the penal procedure of the State concerned, if 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 case.
3. No derogation from this Article shall be made under Article 15 of the Convention.’
B. EU law
1. Charter of Fundamental Rights of the European Union
4. In accordance with Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’):
‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’
5. Article 52 defines the scope and interpretation of the rights and principles enshrined in the Charter:
‘1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
…
3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
4. In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.
…
6. Full account shall be taken of national laws and practices as specified in this Charter.’
2. Secondary legislation on market abuse
(a) Directive 2003/6
6. Directive 2003/6 harmonised the substantive rules governing insider dealing and market manipulation, while also laying down the obligation of Member States to impose administrative sanctions for those types of unlawful conduct, regardless of whether or not the conduct was subject to criminal prosecution under provisions of domestic law.
7. Recital 38 states:
‘In order to ensure that a Community framework against market abuse is sufficient, any infringement of the prohibitions or requirements laid down pursuant to this Directive will have to be promptly detected and sanctioned. To this end, sanctions should be sufficiently dissuasive and proportionate to the gravity of the infringement and to the gains realised and should be consistently applied.’
8. In relation to the disclosure of inside information, Article 2(1) is worded as follows:
‘Member States shall prohibit any person referred to in the second subparagraph who possesses inside information from using that information by acquiring or disposing of, or by trying to acquire or dispose of, for his own account or for the account of a third party, either directly or indirectly, financial instruments to which that information relates.
The first subparagraph shall apply to any person who possesses that information:
(a) by virtue of his membership of the administrative, management or supervisory bodies of the issuer; or
(b) by virtue of his holding in the capital of the issuer; or
(c) by virtue of his having access to the information through the exercise of his employment, profession or duties; or
(d) by virtue of his criminal activities.’
9. Article 2 is supplemented by Article 3, according to which:
‘Member States shall prohibit any person subject to the prohibition laid down in Article 2 from:
(a) disclosing inside information to any other person unless such disclosure is made in the normal course of the exercise of his employment, profession or duties;
(b) recommending or inducing another person, on the basis of inside information, to acquire or dispose of financial instruments to which that information relates.’
10. Article 14(1) is worded as follows:
‘Without prejudice to the right of Member States to impose criminal sanctions, Member States shall ensure, in conformity with their national law, 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 this Directive have not been complied with. Member States shall ensure that these measures are effective, proportionate and dissuasive.’
(b) Regulation No 596/2014
11. In accordance with recital 71:
‘… a set of administrative sanctions and other administrative measures should be provided for to ensure a common approach in Member States and to enhance their deterrent effect. The possibility of a ban from exercising management functions within investment firms should be available to the competent authority. Sanctions imposed in specific cases should be determined taking into account where appropriate factors such as the disgorgement of any identified financial benefit, the gravity and duration of the infringement, any aggravating or mitigating factors, the need for fines to have a deterrent effect and, where appropriate, include a discount for cooperation with the competent authority. In particular, the actual amount of administrative fines to be imposed in a specific case may reach the maximum level provided for in this Regulation, or the higher level provided for in national law, for very serious infringements, while fines significantly lower than the maximum level may be applied to minor infringements or in case of settlement. This Regulation does not limit Member States’ ability to provide for higher administrative sanctions or other administrative measures.’
12. Recital 72 reads:
‘Even though nothing prevents Member States from laying down rules for administrative as well as criminal sanctions for the same infringements, they should not be required to lay down rules for administrative sanctions for infringements of this Regulation which are already subject to national criminal law by 3 July 2016. In accordance with national law, Member States are not obliged to impose both administrative and criminal sanctions for the same offence, but they can do so if their national law so permits. However, maintenance of criminal sanctions rather than administrative sanctions for infringements of this Regulation or of Directive 2014/57/EU should not reduce or otherwise affect the ability of competent authorities to cooperate and access and exchange information in a timely manner with competent authorities in other Member States for the purposes of this Regulation, including after any referral of the relevant infringements to the competent judicial authorities for criminal prosecution.’
13. According to recital 77:
‘This Regulation respects the fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union (Charter). Accordingly this Regulation should be interpreted and applied in accordance with those rights and principles ...’
14. Article 14 governs the prohibition of insider dealing and of unlawful disclosure of inside information:
‘A person shall not:
(a) engage or attempt to engage in insider dealing;
(b) recommend that another person engage in insider dealing or induce another person to engage in insider dealing; or
(c) unlawfully disclose inside information.’
15. As regards insider dealing and recommendations that another person engage in insider dealing, Article 8 provides as follows:
‘1. For the purposes of this Regulation, insider dealing arises where a person possesses inside information and uses that information by acquiring or disposing of, for its own account or for the account of a third party, directly or indirectly, financial instruments to which that information relates. …
2. For the purposes of this Regulation, recommending that another person engage in insider dealing, or inducing another person to engage in insider dealing, arises where the person possesses inside information and:
(a) recommends, on the basis of that information, that another person acquire or dispose of financial instruments to which that information relates, or induces that person to make such an acquisition or disposal, or
(b) recommends, on the basis of that information, that another person cancel or amend an order concerning a financial instrument to which that information relates, or induces that person to make such a cancellation or amendment.
3. The use of the recommendations or inducements referred to in paragraph 2 amounts to insider dealing within the meaning of this Article where the person using the recommendation or inducement knows or ought to know that it is based upon inside information.
…’
16. In relation to the unlawful disclosure of inside information, Article 10 stipulates:
‘1. For the purposes of this Regulation, unlawful disclosure of inside information arises where a person possesses inside information and discloses that information to any other person, except where the disclosure is made in the normal exercise of an employment, a profession or duties.
…’
17. Article 30 governs administrative sanctions and other administrative measures as follows:
‘1. Without prejudice to any criminal sanctions and without prejudice to the supervisory powers of competent authorities under Article 23, Member States shall, in accordance with national law, provide for competent authorities to have the power to take appropriate administrative sanctions and other administrative measures in relation to at least the following infringements:
(a) infringements of Articles 14 and 15, Article 16(1) and (2), Article 17(1), (2), (4) and (5), and (8), Article 18(1) to (6), Article 19(1), (2), (3), (5), (6), (7) and (11) and Article 20(1); and
(b) failure to cooperate or to comply with an investigation, with an inspection or with a request as referred to in Article 23(2).
Member States may decide not to lay down rules for administrative sanctions as referred to in the first subparagraph where the infringements referred to in point (a) or point (b) of that subparagraph are already subject to criminal sanctions in their national law by 3 July 2016. Where they so decide, Member States shall notify, in detail, to the Commission and to ESMA, the relevant parts of their criminal law.
By 3 July 2016, Member States shall notify, in detail, the rules referred to in the first and second subparagraph to the Commission and to ESMA. They shall notify the Commission and ESMA without delay of any subsequent amendment thereto.
2. Member States shall, in accordance with national law, ensure that competent authorities have the power to impose at least the following administrative sanctions and to take at least the following administrative measures in the event of the infringements referred to in point (a) of the first subparagraph of paragraph 1: …’
(c) Directive 2014/57
18. In accordance with recitals 22, 23 and 27:
‘(22) The obligations in this Directive to provide for penalties on natural persons and sanctions on legal persons in their national law do not exempt Member States from the obligation to provide in national law for administrative sanctions and other measures for breaches provided for in Regulation (EU) No 596/2014 unless Member States have decided, in accordance with Regulation (EU) No 596/2014, to provide only for criminal sanctions for such breaches in their national law.
(23) The scope of this Directive is determined in such a way as to complement, and ensure the effective implementation of, Regulation (EU) No 596/2014. Whereas offences should be punishable under this Directive when committed intentionally and at least in serious cases, sanctions for breaches of Regulation (EU) No 596/2014 do not require that intent is proven or that they are qualified as serious. In the application of national law transposing this Directive, Member States should ensure that the imposition of criminal sanctions for offences in accordance with this Directive and of administrative sanctions in accordance with the Regulation (EU) No 596/2014 does not lead to a breach of the principle of non bis in idem.
…
(27) This Directive respects the fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union (the Charter) as recognised in the TEU. Specifically, it should be applied with due respect for the right … not to be tried or punished twice in criminal proceedings for the same offence (Article 50).’
19. In relation to insider dealing and recommending or inducing another person to engage in insider dealing, Article 3 provides:
‘1. Member States shall take the necessary measures to ensure that insider dealing, recommending or inducing another person to engage in insider dealing as referred to in paragraphs 2 to 8, constitute criminal offences at least in serious cases and when committed intentionally.
2. For the purposes of this Directive, insider dealing arises where a person possesses inside information and uses that information by acquiring or disposing of, for its own account or for the account of a third party, directly or indirectly, financial instruments to which that information relates.
3. This Article applies to any person who possesses inside information as a result of:
…
(c) having access to the information through the exercise of an employment, profession or duties; or
…
This Article also applies to any person who has obtained inside information under circumstances other than those referred to in the first subparagraph where that person knows that it is inside information.’
20. Article 4(1) states:
‘Member States shall take the necessary measures to ensure that unlawful disclosure of inside information as referred to in paragraphs 2 to 5 constitutes a criminal offence at least in serious cases and when committed intentionally.’
21. Article 7, concerning criminal penalties for natural persons, reads:
‘1. Member States shall take the necessary measures to ensure that the offences referred to in Articles 3 to 6 are punishable by effective, proportionate and dissuasive criminal penalties.
2. Member States shall take the necessary measures to ensure that the offences referred to in Articles 3 and 5 are punishable by a maximum term of imprisonment of at least four years.
3. Member States shall take the necessary measures to ensure that the offence referred to in Article 4 is punishable by a maximum term of imprisonment of at least two years.’
22. In accordance with Article 13(1), Member States must adopt and publish, by 3 July 2016, the laws, regulations and administrative provisions necessary to comply with the directive.
C. Italian law
23. The version of Article 184 of Legislative Decree No 58/1998 consolidating all provisions in the field of financial intermediation (Testo unico delle disposizioni in materia di intermediazione finanziaria; ‘TUF’) applicable at the material time provided as follows:
‘1. A term of imprisonment of between one and six years and a fine of between twenty thousand and three million euros shall be imposed on any person who, being in possession of inside information by virtue of his membership of the administrative, management or supervisory bodies of an issuer, his holding in the capital of an issuer or the exercise of his employment, profession or duties, including public duties, or his position:
(a) buys, sells or carries out other transactions involving, directly or indirectly, for his own account or on behalf of a third party, financial instruments using such information;
(b) discloses such information to others outside the normal exercise of his employment, profession, duties or position;
(c) recommends or induces others, on the basis of such information, to carry out any of the transactions referred to in subparagraph (a).
2. The sanction referred to in paragraph 1 shall apply to any person who, being in possession of inside information by virtue of the preparation or carrying out of criminal activities, carries out any of the actions referred to in paragraph 1. ...’
24. The TUF was amended by legge 18 aprile 2005, n. 62, disposizioni per l’adempimento di obblighi derivanti dall’appartenenza dell’Italia alle Comunità europee, legge comunitaria 2004 (Law No 62/2005 of 18 April, provisions aimed at discharging the obligations derived from Italy’s membership of the European Community, Community law of 2004), in order to enhance Consob’s powers by granting it, inter alia, an autonomous power to impose administrative sanctions in respect of insider dealing. In particular, that law inserted into the TUF Article 187a, which is worded as follows:
‘1. Without prejudice to the penal sanctions which apply where the action constitutes a criminal offence, an administrative fine of between one hundred thousand and fifteen million euros shall be imposed on any person who, being in possession of inside information by virtue of his membership of the administrative, management or supervisory bodies of an issuer, his holding in the capital of an issuer or the exercise of his employment, profession or duties, including public duties, or his position:
(a) buys, sells or carries out other transactions involving, directly or indirectly, for his own account or on behalf of a third party, financial instruments using such information;
(b) discloses such information to others outside the normal exercise of his employment, profession, duties or position;
(c) recommends or induces others, on the basis of such information, to carry out any of the transactions referred to in subparagraph (a).
2. The sanction referred to in paragraph 1 shall apply to any person who, being in possession of inside information by virtue of the preparation or carrying out of criminal activities, carries out any of the actions referred to in paragraph 1.
…
4. The sanction referred to in paragraph 1 shall also apply to any person who, being in possession of inside information and being aware of, or able, through the exercise of ordinary diligence, to learn of the privileged nature of that information, carries out any of the actions referred to therein. ...’
25. In accordance with Article 187k(1) of the TUF:
‘Administrative investigation proceedings and proceedings to have a decision set aside under Article 187f may not be stayed during the criminal proceedings covering the same facts or facts on the determination of which the outcome of the case depends.’
26. Article 187l(1) of the TUF states:
‘When, in relation to the same act, a pecuniary administrative sanction under Article 187f is imposed on the convicted person or entity … the pecuniary penalty and the pecuniary sanction that may be imposed in relation to the criminal offence shall be limited to the part in excess of the penalty or sanction imposed by the administrative authorities.’
27. In accordance with Article 654 of the Codice di procedura penale (Code of Criminal Procedure), with regard to any accused person and to any party in civil proceedings or party liable under civil law who has entered an appearance or has intervened in criminal proceedings, a final judgment in criminal proceedings of conviction or acquittal shall have the force of res judicata in civil or administrative proceedings.
II. The dispute in the main proceedings and the questions referred for a preliminary ruling
28. According to the account of the facts in respect of which Consob imposed penalties on Mr Zecca and Mr Di Puma, (7) the latter purchased certain shares using inside information. Specifically, Mr Zecca, in his capacity as the director of the Transaction Services section of Deloitte Financial Advisory Services S.p.a., had inside information concerning a plan to make a public offer to purchase shares in Guala Closures S.p.a. He also had confidential information concerning a plan to take control of Permasteelisa S.p.a.
29. In 2008, Mr Zecca disclosed that information to Mr Di Puma, inducing him to purchase shares in those two companies. On 30 September 2008, Mr Di Puma purchased 4 000 shares in Guala Closures and, on 14 and 17 October 2008, with the assistance of Mr Zecca, 2 375 shares in Permasteelisa.
30. Consob commenced administrative proceedings on 17 September 2009, following which, by decision of 7 November 2012, it penalised Mr Zecca for committing offences contrary to Article 187a(1)(a) and (c) of the TUF, imposing on him: (i) a fine of EUR 100 000 for having induced Mr Di Puma to purchase shares in Guala Closures; (ii) a further fine of EUR 100 000 for having disclosed to Mr Di Puma inside information concerning the plan to take control of Permasteelisa; (iii) a third fine of EUR 100 000 for the purchase of 2 375 shares in Permaasteelisa; and (iv) a temporary ban of six months on holding certain posts in companies listed on a stock exchange. (8)
31. In the same decision, Consob imposed on Mr Di Puma, under Article 187a(4) and (1)(a) of the TUF: (i) a fine of EUR 100 000 for the purchase of the shares in Guala Closures; (ii) a further fine of EUR 100 000 for the purchase of the shares in Permaasteelisa; and (iii) a temporary ban of three months on holding certain posts in companies listed on a stock exchange.
32. The defendants appealed against the decision of Consob before the Corte di appello di Milano — Sezione Civile (Court of Appeal, Milan, Civil Division), with different outcomes. Mr Di Puma’s appeal was dismissed (judgment of 4 April 2013), whereas Mr Zecca’s was upheld (judgment of 23 August 2013) as the appellate court found that there had been a procedural defect in the service of the indictments and it therefore annulled the penalties imposed on Mr Zecca.
33. Appeals in cassation were brought against both judgments: against the former by Mr Di Puma and against the latter by Consob. Before ruling on the appeals, the Corte suprema di cassazione (Supreme Court of Cassation, Italy) has made two references to the Court of Justice for a preliminary ruling.
34. In addition, on 2 December 2011, Consob sent to the Milan Prosecutor’s Office a report containing the results of its investigations into the actions of Mr Zecca and Mr Di Puma. In the criminal proceedings commenced as a result of that communication, the Tribunale di Milano — Sezione penale (District Court, Milan, Criminal Division), acquitted the defendants of the offence referred to in Article 184 of the TUF, on the ground that the relevant facts had not been made out. The Prosecutor’s Office did not appeal against the judgment (No 6625 of 2014) and it therefore became final. (9)
35. Mr Zecca and Mr Di Puma relied on that judgment of acquittal in criminal proceedings in the appeals in cassation against the penalties imposed by Consob. They submit, inter alia, that the Tribunale di Milano — Sezione penale (District Court, Milan, Criminal Division) acquitted them of the offence referred to in Article 184 of the TUF, on the ground that the relevant facts had not been made out, and that that judgment has become final. Since the conduct referred to in that article is identical to the conduct classified as an administrative offence by Article 187a of the TUF, (10) on the basis of which Consob imposed the penalties on them, the defendants argue that they have been subject to two sets of proceedings in respect of the same facts, resulting in the infringement of the principle of ne bis in idem enshrined in Article 4 of Protocol No 7 and Article 50 of the Charter.
36. After accepting that the judgment of acquittal in the criminal proceedings may be relied on for the purpose of adjudicating on whether it has the force of res judicata in relation to the penalties imposed by Consob, the Corte suprema di cassazione (Supreme Court of Cassation) observes that, in the judgment of 4 March 2014, Grande Stevens and Others v. Italy, (11) the ECtHR held that the provisions of Italian law which punish market manipulation as an administrative offence conflict with the right not to be punished a second time in respect of conduct which is materially identical.
37. However, the referring court is uncertain whether that case-law of the ECtHR can be applied to Article 50 of the Charter, in the light of the judgment of the Court of Justice of 26 February 2013, Åkerberg Fransson. (12)
38. Against that background, the Corte suprema di cassazione (Supreme Court of Cassation, Italy) has referred to the Court for a preliminary ruling the following two questions, which are identical in both sets of proceedings:
‘(1) Is Article 50 of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that, where a court has delivered a final judgment finding a defendant not to have committed the criminal offence alleged, it precludes the initiation or prosecution of further proceedings based on the same facts with a view to the imposition of penalties which, on account of their nature and severity, may be regarded as criminal penalties, without it being necessary for the national court to make any further assessment?
(2) In assessing the effectiveness, proportionality and dissuasiveness of penalties, in the context of determining whether there has been a breach of the ne bis in idem principle referred to in Article 50 of the Charter of Fundamental Rights of the European Union, must a national court take into account the thresholds for sanctions laid down in Directive 2014/57/EU?’
39. Written observations were lodged by Mr Zecca, Mr Di Puma, the Italian, German and Portuguese Governments, and the Commission. The two cases were joined and allocated to the Grand Chamber of the Court and the hearing was held on 30 May 2017, jointly with the hearings in Menci (C‑524/15) and Garlsson Real Estate and Others (C‑537/16). At the hearing, oral argument was presented in relation to the present joined cases by the representatives of Mr Zecca and Mr Di Puma, Consob, the Italian and German Governments, and the Commission.
III. Analysis of the questions referred for a preliminary ruling
40. By its first question, the referring court asks whether, in accordance with Article 50 of the Charter, the final judgments finding that the defendants had not committed the criminal offence of market abuse simply preclude the opening or prosecution of any other proceedings based on the same facts, where those proceedings may result in penalties which, on account of their nature and severity, may be regarded as criminal penalties.
41. In the second question, the referring court asks whether, for the purpose of assessing the effectiveness, proportionality and dissuasiveness of the penalties, a national court must take into account the thresholds laid down in Directive 2014/57.
42. Before suggesting an answer to those questions, I believe it is useful to make three observations. The first is that there is no doubt that Article 50 of the Charter is applicable to this case, since the national legislation on market abuse, pursuant to which the penalties at issue were imposed, was adopted by the Italian State in order to transpose Directive 2003/6 into national law.
43. The scope of the Charter, as far as the actions of the Member States are concerned, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing Union law. The fundamental rights guaranteed by the Charter must be respected when applying national provisions which, in turn, reflect or derive from provisions of EU law. (13) However, the Court does not have jurisdiction to rule on a legal situation not included in the scope of the Charter and the provisions of the Charter cannot by themselves be the basis for that jurisdiction. (14)
44. The second observation concerns the decision of the Italian legislature to introduce, in 2005, a system involving duplication of proceedings and of (administrative and criminal) penalties to punish market abuse, for the purpose of implementing Directive 2003/6.
45. That dual-track administrative and criminal system (doppio binario sanzionatorio) displays characteristics which make it difficult to reconcile with the principle of ne bis in idem in Article 50 of the Charter, as the referring court explains. If such a system had been established by Directive 2003/6, it would be necessary to consider whether it is invalid on the ground that it might infringe Article 50 of the Charter.
46. In my view, however, Directive 2003/6 does not compel Member States to implement a dual-track administrative and criminal system to punish the kind of unlawful conduct concerned. Therefore, I do not consider that directive to be incompatible with Article 50 of the Charter.
47. In my Opinion in Garlsson Real Estate and Others, (15) I analyse the compatibility of Directive 2003/6 with Article 50 of the Charter. I also refer to the new system of sanctions applicable to market abuse, introduced by Regulation 596/2014 and Directive 2014/57, which do not oblige Member States to adopt a dual-track system for the punishment of market abuse either and are, therefore, compatible with the right of ne bis in idem.
48. The third observation concerns the reliance on Directive 2014/57 and the possible inadmissibility of the second question. The Italian Government submits that that directive is not applicable ratione temporis to the proceedings, and that is the case because the offences occurred in 2008 while the period for transposition of Directive 2014/57 into national law ended on 3 July 2016.
49. The referring court is, of course, aware that Directive 2014/57 is not applicable to these cases for reasons of time. That is why its (second) question to the Court does not concern the interpretation of that directive but rather the possibility of drawing from the new legislative framework (Directive 2014/57 and Regulation No 596/2014) information which is useful for examination of the effectiveness, proportionality and dissuasiveness of the penalties, when assessing the breach of the principle of ne bis in idem. (16) Explained in those terms, I believe that the second question is admissible.
A. The first question: application of the ne bis in idem principle in Article 50 of the Charter to the duplication of criminal and administrative proceedings for insider dealing
50. In the Opinion in Menci I set out at length my considerations on:
– The application of Article 50 of the Charter to the joint imposition of tax and criminal penalties in the light of the case-law of the Court, in particular the Åkerberg Fransson judgment and other earlier judgments. (17)
– The case-law of the ECtHR on the concept of ne bis in idem, in relation to the existence of the same acts and to the duplication of proceedings in which a penalty is imposed. (18)
– The effect of the judgment of the ECtHR of 15 November 2016, A and B v. Norway, (19) on EU law. (20)
– The possibility of exploring the use of the first sentence of Article 52(1) of the Charter to limit the right not to be tried or punished twice in criminal proceedings for the same criminal offence. (21)
51. I believe that those considerations are applicable mutatis mutandis to the interpretation of the scope of the protection granted by Article 50 of the Charter against the duplication of proceedings and of criminal and administrative penalties in respect of the same act which can be classified as insider dealing. I therefore refer to those considerations.
52. By its first question, the referring court seeks to ascertain whether Article 50 of the Charter permits the bringing of administrative proceedings to penalise the perpetrators of unlawful conduct consisting of insider dealing, where a final judgment has previously held that that conduct has not been established.
53. For the purposes of application of the ne bis in idem principle, protected by Article 50 of the Charter, four conditions must be satisfied: (1) the person prosecuted or on whom the penalty is imposed is the same, (2) the acts being judged are the same (idem), (3) there are two sets of proceedings in which a penalty is imposed (bis) and (4) one of the two decisions is final.
54. In the present proceedings, the referring court appears to harbour no uncertainties regarding the fact that the two persons prosecuted or penalised for insider dealing — Mr Zecca and Mr Di Puma — are the same (identical). The criminal proceedings which concluded with the acquittal were brought against Mr Zecca and Mr Di Puma, as were the administrative proceedings at the end of which Consob imposed on them the penalties consisting of fines and bans as described above.
55. Nor is there any doubt that one of the decisions bringing to an end one set of proceedings (in this case, the criminal proceedings) is final. In the criminal proceedings initiated against Mr Zecca and Mr Di Puma by the Prosecutor’s Office, the Tribunale di Milano — Sezione penale (District Court, Milan, Criminal Division) acquitted them of the offence referred to in Article 184 of the TUF, on the ground that the alleged facts had not been made out. The judgment has acquired the force of res judicata. (22)
56. Nor does the material identity of the facts adjudicated on (idem) appear to be at issue or create difficulties for the referring court. The acts in respect of which Mr Zecca and Mr Di Puma were prosecuted and acquitted in criminal proceedings are the same (insider dealing) as those in respect of which administrative penalties were imposed on them by Consob.
57. The referring court’s uncertainties therefore concern the duplication or repetition of proceedings in which a penalty is imposed (bis). It is a matter of determining whether Article 50 of the Charter is breached when, following a final acquittal in criminal proceedings on the ground that the offence has not been made out, the acquitted person may, in respect of the same acts, still be subject to proceedings brought by Consob (or proceedings which have already been commenced may continue), which may conclude with the imposition of penalties which are formally of an administrative nature but are in fact really criminal penalties.
58. As I pointed out in the Opinion in Menci, (23) in the context of Article 50 of the Charter, the Court has used the so-called Engel criteria as parameters for determining when proceedings or a penalty which are in principle administrative are actually criminal in nature. (24)
59. The first Engel criterion (the legal classification of the offence under national law) is of little relevance in this case, since Italian law classifies as administrative the proceedings and penalties dealt with by Consob. However, that should not preclude their subsequent examination in the light of the other two criteria. (25)
60. The second Engel criterion concerns the legal nature of the offence. A nominally administrative offence will, in fact, be criminal in nature where it satisfies a set of factors (including that the penalty for the offence is established for the purposes of punishment and deterrence and is not restricted to compensation for pecuniary damage, and that it protects legal interests whose protection is normally guaranteed by provisions of criminal law) to which I referred in the Opinion in Menci. (26)
61. The referring court takes the view that, in the light of the nature of the unlawful conduct, the administrative offences punished by Consob are of a substantively criminal nature, in accordance with the second Engel criterion, a view with which I concur. The interests protected by those offences (Article 187a of the TUF) are identical to those protected by the criminal offences of the same name (Article 184 of the TUF). Both are intended to guarantee the integrity of the financial markets and maintain public confidence in the security of transactions. Granting Consob the power to punish these types of offences is intended both as a deterrent (deterring future offenders from committing the unlawful conduct of market abuse) and a punishment (penalising those who have committed such acts and preventing reoffending). (27)
62. The third Engel criterion concerns the nature and the degree of severity of the penalty, which may be assessed on the basis of the factors to which I also referred in the Opinion in Menci. (28) Given the range of penalties which Consob may impose and, in particular, the high amount of the fines it may impose, the referring court acknowledges that these are penalties that are clearly criminal in tone.
63. The severity of the penalties must be assessed by reference to the penalty which may be imposed a priori on the person concerned and not the penalty which is finally imposed or enforced: the possible later reduction of the penalty or the non-fulfilment of the penalty as a result of a pardon are irrelevant. (29) Likewise, the application of Article 50 of the Charter is not conditional on a final decision having been given in one set of proceedings, declaring the responsibility of the person concerned for the offence and imposing a sanction. As the referring court itself argues in its order, the effectiveness of rules entailing the imposition of a penalty must always be assessed in light of a finding that the offence has been committed, so that, where the offence has not been made out, the question of the effectiveness of the penalties should not arise.
64. In my view, the application of the right of ne bis in idem laid down in Article 50 of the Charter precludes the commencement or continuation of administrative proceedings leading to the imposition of a penalty in respect of the same acts after the perpetrators have been acquitted by a final judgment in criminal proceedings. The essence of Article 50 of the Charter would be undermined if only decisions imposing a penalty and not decisions to acquit were taken into account for the purpose of adjudicating on infringements of the principle of ne bis in idem.
65. To accept that decisions on acquittal are irrelevant for the purposes of the principle of ne bis in idem would mean that no one would have the legal certainty afforded by that right, which includes the guarantee that an individual will not be prosecuted or punished after they have been acquitted by a final judgment in criminal proceedings. The State cannot activate for a second time, in respect of the same acts, its power to impose punishment on an individual who has been definitively acquitted in criminal proceedings. That prohibition applies to fresh criminal proceedings and to administrative proceedings which lead to substantively criminal penalties.
66. In that connection, the ECtHR has held that the guarantee inherent in the ne bis in idem principleis applicable not only to instances of double punishment but also to those of double prosecution; in other words, to individuals whose prosecutions have ended without punishment. The ECtHR has also held that it is immaterial whether the administrative proceedings precede or follow the criminal proceedings, the first penalty is offset against the penalty applied in the second proceedings, or the person concerned is exonerated at the end of the second or the first proceedings. (30)
67. From a different perspective, the right of ne bis in idem laid down in Article 50 of the Charter protects the legal certainty of individuals, so that final judgments in their favour cannot be contradicted by subsequent actions of the administrative authorities which, in terms of their contents, are penalties. Respect for the quality of res judicata of (final) judgments of acquittal in criminal proceedings would be undermined if an administrative authority, like Consob, were able to disregard such judgments and hold that facts have been established where a criminal court has declared that those same facts have not been made out.
68. In its order, the referring court refers to that interaction between the concept of ne bis in idem and the force of res judicata. The referring court points out the risk of conflicting judgments in relation to the acts carried out by Mr Zecca and Mr Di Puma if the final judgment of acquittal delivered by the Italian criminal court did not prevent Consob from imposing administrative penalties on them as a response to the same acts of insider dealing. (31)
69. In relation to that point, it is necessary to recall the settled case-law of the Court relating to the importance of the principle of res judicata in the EU legal order and in the national legal systems. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called in question. (32)
70. EU law does not always require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to remedy a breach of EU law by the decision at issue. (33) In the absence of EU rules in a particular area, the rules implementing the principle of res judicata are a matter for the national legal order, in accordance with the principle of the procedural autonomy of the Member States. (34)
71. That case-law of the Court confirms the above view: the right of ne bis in idem laid down in Article 50 of the Charter enhances respect for the principle of res judicata of judgments in national criminal proceedings by preventing the imposition of further penalties of different content in respect of the same acts. Accordingly, it cannot be concluded that the need to impose effective, proportionate and dissuasive penalties, referred to in Article 14(1) of Directive 2003/6 and in the case-law of the Court, entails for national courts an obligation to disregard the force of res judicata of a final judgment of acquittal.
72. Lastly, I must refer to the possible bearing on these proceedings of the change in its case-law effected by the ECtHR in its judgment in A and B v. Norway, (35) which was delivered after the references for a preliminary ruling were made. According to that judgment, the bringing of both administrative and criminal proceedings does not breach Article 4 of Protocol No 7 if there is a sufficiently close connection in substance and in time between those proceedings. A number of the parties have suggested, in their written and oral observations, that that case-law should be extrapolated to the application of Article 50 of the Charter in order to justify the Italian dual-track system for the punishment of market abuse.
73. I do not concur with that argument, for the reasons I explained in more detail in the Opinion in Menci. (36) I repeat that the Court should not adopt the strict interpretation of the right of ne bis in idem in Article 50 of the Charter, by refusing to follow in the wake of the change in the case-law of the ECtHR concerning Article 4 of Protocol No 7. Rather, the Court should maintain a higher level of protection of that right, in line with the judgments given to date on Article 50 of the Charter.
74. In this case, the referring court, which is best placed to assess whether the administrative sanctions on which it must adjudicate are really criminal in nature, maintains that the sanctions imposed by Consob on Mr Zecca and Mr Di Puma are of such a nature and that the offences which they punish serve the same purpose as the criminal offences of market abuse. If that is the case, application of the Engelcriteria to the main proceedings will result in a finding that Article 50 of the Charter has been breached.
75. On that basis, the most rational conclusion is that legislation such as the Italian legislation on market abuse enables the same unlawful conduct to be punished twice in the form of an administrative (albeit criminal in substance) penalty and a criminal penalty, without establishing a clear procedural mechanism to prevent double prosecution and double punishment of offenders. To that extent, it infringes the right of ne bis in idem protected by Article 50 of the Charter, since it permits administrative proceedings to be brought to punish the perpetrators of acts of insider dealing when a final judgment has previously held that that those acts have not been established.
B. The second question: requirement that sanctions must be effective as a possible limitation of the right of ne bis in idem in Article 50 of the Charter
76. By its second question, the Corte suprema di cassazione (Supreme Court of Cassation) asks whether a national court must take into account the thresholds for sanctions laid down in Directive 2014/57 in order to assess the effectiveness, proportionality and dissuasiveness of sanctions and determine, in accordance with those thresholds, whether there has been a breach of Article 50 of the Charter.
77. The referring court interprets the Åkerberg Fransson judgment as meaning that, in relation to Article 50 of the Charter, a national court is required to assess the effectiveness, proportionality and dissuasiveness of the ‘remaining’ penalties following application of the ne bis in idem principle. For the purpose of that assessment, the referring court asks whether it may use as a reference the thresholds for sanctions laid down in Directive 2014/57. (37)
78. On the basis of that reading of the Åkerberg Fransson judgment, the referring court reasons that, since a judgment of acquittal in criminal proceedings (of the kind relating to Mr Zecca and Mr Di Puma) leads to the non-imposition of penalties in criminal proceedings, it is possible that Article 50 of the Charter may not be relied on against the subsequent imposition of administrative penalties (of a criminal nature), of the kind imposed by Consob. (38)
79. I do not concur with that interpretation of the Åkerberg Fransson judgment. In my view, it cannot be inferred from paragraph 36 (39) of that judgment that the right of ne bis in idem laid down in Article 50 of the Charter is conditional on whether, in the event of an acquittal in criminal proceedings, other effective, proportionate and dissuasive penalties may be imposed in respect of the same acts. Nor does that conditional nature follow from Article 14(1) of Directive 2003/6 or Article 7(1) of Directive 2014/57.
80. Like the Commission, I believe that the requirement that penalties must be effective does not constitute a limitation of the right of ne bis in idem laid down in Article 50 of the Charter. The obligation to apply effective, proportionate and dissuasive penalties is incumbent on Member States in general terms and is independent of whether they adopt a dual-track (criminal and administrative) or a single-track (criminal) system to penalise market abuse. Whatever the mechanism chosen, the system of penalties must be effective and, at all events, must respect the right of ne bis in idem protected by Article 50 of the Charter.
81. As I argued in the Opinions in Menci (40) and Garlsson Real Estate and Others, (41) only the horizontal clause in Article 52(1) of the Charter allows for an examination of whether the effectiveness of the penalties for insider dealing may be classified as an ‘objective of general interest’, capable of justifying derogations from Article 50 of the Charter. (42)
82. In accordance with the horizontal clause in the first sentence of Article 52(1) of the Charter, a limitation of the right of ne bis in idem must be provided for by law and respect the essence of that right. In accordance with the second sentence of that paragraph, subject to the principle of proportionality, limitations may be made to the right of ne bis in idem only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. (43)
83. Of the four essential conditions for legitimising the limitation of a fundamental right, the first and the last do not present any particular difficulties in this case. National law provides for double prosecution and that satisfies an aim of general interest recognised by EU law (that is, the protection of the integrity of the financial markets).
84. However, I doubt whether, in these circumstances, there is respect for the essence of the right not to be tried or punished twice in criminal proceedings for the same criminal offence. At all events — and this is the key factor — I believe that the limitation I am now examining is not necessary within the meaning of Article 52(1) of the Charter.
85. To my mind, the fact that the legislation of the Member States provides for different solutions in this regard itself demonstrates that that limitation is not necessary. If the limitation were really necessary, in accordance with Article 52(1) of the Charter, it would be necessary for all and not only some of the Member States. There are Member States which have established single-track systems for the punishment of market abuse and others which have maintained the dual-track system but have established procedural mechanisms (‘aiguillage’ in France) which prevent the joint imposition of penalties. (44)
86. The dissuasiveness of a penalty depends on its severity: prison sentences (imposed for criminal offences) are undoubtedly more dissuasive than pecuniary penalties (imposed for administrative offences). A system which combines — without duplication — pecuniary penalties for less serious offences and reserves prison sentences for more serious offences will fulfil the aim of preventing the spread of such offences.
87. As regards effectiveness, I do not see why, in the case of penalties which are substantively criminal and therefore subject to the guarantees inherent in criminal law, the proceedings of administrative bodies should have to be more expeditious than those of the courts. It will be for the Member States to establish (legislative, administrative and judicial) measures suitable for tackling market abuse, combining the effectiveness of those measures with respect for the rights protected by the Charter.
88. Accordingly, the effectiveness, proportionality and dissuasiveness of the penalties does not constitute a limitation of the scope of the right of ne bis in idem protected by Article 50 of the Charter.
IV. Conclusion
89. In the light of the foregoing arguments, I propose that the Court reply as follows to the questions referred for a preliminary ruling by the Corte suprema di cassazione (Supreme Court of Cassation, Italy):
Article 50 of the Charter of Fundamental Rights of the European Union:
(1) Precludes national legislation which permits proceedings to be brought with a view to the imposition of administrative penalties of a substantively criminal nature on perpetrators of conduct consisting of market abuse, when a previous final judgment of acquittal in criminal proceedings has declared, in respect of the same facts and the same individuals, that that conduct has not been established;
(2) Cannot be subject to limitation, in circumstances such as those of the main proceedings, as a result of the requirement that the penalties applicable to market abuse must be effective, proportionate and dissuasive.