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CJEU Case C-537/16 / Opinion

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:
Advocate General
Type:
Opinion
Decision date:
12/09/2017

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

 

In the light of the arguments set out, I propose that the Court reply as follows to the questions submitted by the Corte suprema di cassazione (Supreme Court of Cassation, Italy):

Article 50 of the Charter of Fundamental Rights of the European Union:

(1) does not permit double administrative and criminal punishment of the same unlawful conduct consisting of market abuse, when the administrative penalty which, in accordance with national legislation, is applicable to that conduct is of a substantively criminal nature and the duplication of proceedings against the same person in respect of the same acts is provided for without establishing a procedural mechanism which prevents such duplication;

(2) may be relied on directly by an individual before a national court, which is obliged to give full effect to the right of ne bis in idem and, if necessary, to refuse of its own motion to apply any conflicting provision of national legislation.