CJEU Case C-537/16 / Judgment

Garlsson Real Estate SA and Others v Commissione Nazionale per le Società e la Borsa (Consob)
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Court (Grand Chamber)
Type
Decision
Decision date
20/03/2018
ECLI (European case law identifier)
ECLI:EU:C:2018:193
  • CJEU Case C-537/16 / Judgment

    Key facts of the case

    Request for a preliminary ruling from the Corte suprema di cassazione.

    Reference for a preliminary ruling — Directive 2003/6/EC — Market manipulation — Penalties — National legislation providing for an administrative penalty and a criminal penalty for the same acts — Charter of Fundamental Rights of the European Union — Article 50 — Ne bis in idem principle — Criminal nature of the administrative penalty — Existence of the same offence — Article 52(1) — Limitations to the ne bis in idem principle — Conditions.

    Outcome of the case

    On those grounds, the Court (Grand Chamber) hereby rules:

    1. Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation which permits the possibility of bringing administrative proceedings against a person in respect of unlawful conduct consisting in market manipulation for which the same person has already been finally convicted, in so far as that conviction is, given the harm caused to the company by the offence committed, such as to punish that offence in an effective, proportionate and dissuasive manner.

    2. The ne bis in idem principle guaranteed by Article 50 of the Charter of Fundamental Rights of the European Union confers on individuals a right which is directly applicable in the context of a dispute such as that at issue in the main proceedings.

  • Paragraphs referring to EU Charter

    21) By its first question, the referring court asks, in essence, whether Article 50 of the Charter, read in the light of Article 4 of Protocol No 7 to the ECHR, must be interpreted as precluding national legislation which permits the possibility of bringing administrative proceedings against a person in respect of unlawful conduct consisting in market manipulation for which the same person has already been finally convicted.

    ...

    23) According to the information in the order for reference, Article 187b of the TUF was adopted in order to transpose into Italian law those provisions of Directive 2003/6. Therefore, the administrative procedure at issue in the main proceedings and the administrative fine provided for in Article 187b imposed on Mr Ricucci amount to an implementation of EU law within the meaning of Article 51(1) of the Charter. As a result, they must inter alia respect the fundamental right not to be tried or punished twice in criminal proceedings for the same criminal offence, guaranteed by Article 50 thereof.

    24) Moreover, whilst, as Article 6(3) TEU confirms, fundamental rights recognised by the ECHR constitute general principles of EU law and whilst Article 52(3) of the Charter provides that the rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR, the latter does not constitute, for as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 44, and of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 45 and the case-law cited).

    25) According to the explanations relating to Article 52 of the Charter, Article 52(3) thereof is intended to ensure the necessary consistency between the Charter and the ECHR, ‘without thereby adversely affecting the autonomy of Union law and … that of the Court of Justice of the European Union’ (judgments of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 47, and of 14 September 2017, K., C‑18/16, EU:C:2017:680, paragraph 50 and the case-law cited).

    26) Therefore, the examination of the question referred must be undertaken in the light of the fundamental rights guaranteed by the Charter and, in particular, of Article 50 thereof (see, to that effect, judgment of 5 April 2017, Orsi and Baldetti, C‑217/15 and C‑350/15, EU:C:2017:264, paragraph 15 and the case-law cited).

    27) Article 50 of the Charter provides that ‘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’. Therefore, the ne bis in idem principle prohibits a duplication both of proceedings and of penalties which are criminal in nature for the purposes of that article in respect of the same acts and against the same person (see, to that effect, judgment of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 34).

    ...

    29) Although it is for the referring court to assess, in the light of those criteria, whether the criminal and administrative proceedings and penalties at issue in the main proceedings are criminal in nature for the purposes of Article 50 of the Charter, the Court, when giving a preliminary ruling, may nevertheless provide clarification designed to give the national court guidance in its assessment (see, to that effect, judgment of 5 June 2014, Mahdi, C‑146/14 PPU, EU:C:2014:1320, paragraph 79 and the case-law cited).

    30) In this case, it should be noted at the outset that the classification as criminal, in the light of the criteria noted in paragraph 28 of the present judgment, of the criminal proceedings and the term of imprisonment, referred to in paragraph 14 of the present judgment, imposed on Mr Ricucci, is not at issue. The question arises, on the other hand, whether the administrative fine and the administrative proceedings at issue in the main proceedings are criminal in nature, for the purposes of Article 50 of the Charter.

    ...

    32) Nevertheless, the application of Article 50 of the Charter is not limited to proceedings and penalties which are classified as ‘criminal’ by national law, but extends regardless of such a classification to proceedings and penalties which must be considered to have a criminal nature on the basis of the two other criteria referred to in paragraph 28 of the present judgment.

    33) As regards the second criterion, relating to the very nature of the offence, it must be ascertained whether the purpose of the penalty at issue is punitive (see judgment of 5 June 2012, Bonda, C‑489/10, EU:C:2012:319, paragraph 39). It follows therefrom that a penalty with a punitive purpose is criminal in nature for the purposes of Article 50 of the Charter, and that the mere fact that it also pursues a deterrence purpose does not mean that it cannot be characterised as a criminal penalty. As the Advocate General stated in point 64 of his Opinion, it is of the very nature of criminal penalties that they seek both to punish and to deter unlawful conduct. By contrast, a measure which merely repairs the damage caused by the offence at issue is not criminal in nature.

    ...

    35) As regards the third criterion, it should be noted that an administrative fine which can be of an amount up to 10 times greater than the proceeds or profit obtained from the market manipulation has a high degree of severity which is liable to support the view that that penalty is criminal in nature for the purposes of Article 50 of the Charter, which it is, however, for the referring court to determine.

    ...

    36) It follows from the very wording of Article 50 of the Charter that it prohibits the prosecution or the imposition of criminal penalties on the same person more than once for the same offence (see, to that effect, judgment of 5 April 2017, Orsi and Baldetti, C‑217/15 and C‑350/15, EU:C:2017:264, paragraph 18). As is stated by the referring court in its order for reference, the different proceedings and penalties of a criminal nature at issue in the main proceedings are directed against the same person, namely Mr Ricucci.

    37) According to the Court’s case-law, the relevant criterion for the purposes of assessing the existence of the same offence is identity of the material facts, understood as the existence of a set of concrete circumstances which are inextricably linked together and which resulted in the final acquittal or conviction of the person concerned (see, by analogy, judgments of 18 July 2007, Kraaijenbrink, C‑367/05, EU:C:2007:444, paragraph 26 and the case-law cited, and of 16 November 2010, Mantello, C‑261/09, EU:C:2010:683, paragraphs 39 and 40). Therefore, Article 50 of the Charter prohibits the imposition, with respect to identical facts, of several criminal penalties at the conclusionof different proceedings brought for those purposes.

    38) Moreover, the legal classification, under national law, of the facts and the legal interest protected are not relevant for the purposes of establishing the existence of the same offence, in so far as the scope of the protection conferred by Article 50 of the Charter cannot vary from one Member State to another.

    ...

    41) In those circumstances, it appears that the national legislation at issue in the main proceedings permits the possibility of bringing administrative proceedings of a criminal nature for the purposes of Article 50 of the Charter against a person, such as Mr Ricucci, in respect of unlawful conduct consisting in market manipulation for which the same person has already been finally convicted. However, such a duplication of proceedings and penalties constitutes a limitation of the right guaranteed by Article 50 of the Charter.

    ...

    42) It should be noted that, in its judgment of 27 May 2014, Spasic (C‑129/14 PPU, EU:C:2014:586, paragraphs 55 and 56), the Court ruled that a limitation to the ne bis in idem principle guaranteed by Article 50 of the Charter may be justified on the basis of Article 52(1) thereof.

    43) In accordance with the first sentence of Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by that Charter must be provided for by law and must respect the essence of those rights and freedoms. According to the second sentence of Article 52(1) thereof, subject to the principle of proportionality, limitations to those rights and freedoms may be made only if they are necessary and genuinely meet other objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

    ...

    45) Moreover, national legislation, such as that at issue in the main proceedings, respects the essential content of Article 50 of the Charter, since it allows such a duplication of proceedings and penalties only under certain conditions which are exhaustively defined, thereby ensuring that the right guaranteed by Article 50 is not called into question as such.

    ...

    56) Secondly, the duplication of penalties of a criminal nature requires rules allowing it to be guaranteed that the severity of the sum of all of the penalties imposed corresponds with the seriousness of the offence concerned, that requirement resulting not only from Article 52(1) of the Charter, but also from the principle of proportionality of penalties set out in Article 49(3) thereof. Those rules must provide for the obligation for the competent authorities, in the event of the imposition of a second penalty, to ensure that the severity of the sum of all of the penalties imposed does not exceed the seriousness of the offence identified.

    ...

    62) That conclusion is not called into question by the fact that the final sentence pronounced in accordance with Article 185 of the TUF can, where appropriate, subsequently be extinguished as a result of a pardon, as seems to have happened in the case in the main proceedings. It follows from Article 50 of the Charter that the protection conferred by the ne bis in idem principle must benefit persons who have already been finally acquitted or convicted, including, consequently, those who have been made subject, by such a conviction, to a criminal penalty which was subsequently extinguished as a result of a pardon. Therefore, such a circumstance is irrelevant for the purpose of assessing whether national legislation such as that at issue in the main proceedings is strictly necessary.

    63) In the light of the foregoing considerations, the answer to the question referred is that Article 50 of the Charter must be interpreted as precluding national legislation which permits the possibility of bringing administrative proceedings against a person in respect of unlawful conduct consisting in market manipulation for which the same person has already been finally convicted, in so far as that conviction is, given the harm caused to the company by the offence committed, such as to punish that offence in an effective, proportionate and dissuasive manner.

    ...

    64) By its second question, the referring court asks, in essence, whether the ne bis in idem principle provided for in Article 50 of the Charter confers on individuals a directly applicable right in the context of a dispute such as that at issue in the main proceedings.

    ...

    66) The right that Article 50 of the Charter confers on individuals is not subject, according to the very wording of that provision, to any conditions and is therefore directly applicable in the context of the dispute in the main proceedings.

    67) In that regard, it should be noted that the Court has already recognised the direct effect of Article 50 of the Charter by concluding, in paragraph 45 of the judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105), that, in the course of the assessment of the compatibility of provisions of domestic law with the rights guaranteed by the Charter, the national court which is called upon, within the exercise of its jurisdiction, to apply provisions of EU law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.

    68) Therefore, the answer to the second question is that the ne bis in idem principle guaranteed by Article 50 of the Charter confers on individuals a right which is directly applicable in the context of a dispute such as that at issue in the main proceedings.

    ...

    69) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

    On those grounds, the Court (Grand Chamber) hereby rules:

    1. Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as precluding national legislation which permits the possibility of bringing administrative proceedings against a person in respect of unlawful conduct consisting in market manipulation for which the same person has already been finally convicted, in so far as that conviction is, given the harm caused to the company by the offence committed, such as to punish that offence in an effective, proportionate and dissuasive manner.

    2. The ne bis in idem principle guaranteed by Article 50 of the Charter of Fundamental Rights of the European Union confers on individuals a right which is directly applicable in the context of a dispute such as that at issue in the main proceedings.

  • Paragraphs referring to EU Charter (original language)