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Luxembourg / Administrative Court / 37084C et 37602C

1. la société anonyme ... S.A., ..., et 2. Monsieur ... ..., ..., et consorts contre un arrêt de la Cour administrative

Deciding Body type:
National Court/Tribunal
Deciding Body:
Luxembourg Administrative Court
Decision date:

Key facts of the case: 

In 2010, the national supervisory commission of the financial sector (Commission de surveillance du secteur financier, CSSF) informed an individual working for one of the entities supervised by the CSSF that he was no longer considered worthy of the trust indispensable to the position he held, and he was ordered to resign from his position. The person, who was a member of the Luxembourg Bar, filed a complaint against the decision, asking the Administrative Tribunal (first instance) to reverse or annul the decision. Moreover, the legal council of the complainant requested that the CSSF hand over certain documentation, including certain pieces of correspondence, which was supposed to lie as a ground for the complainant’s dismissal. The CSSF refused to hand over the requested documentation based on the argument that it was covered by the professional secrecy under which supervisory authorities operate. The Administrative tribunal (first instance) considered that part of the case was inadmissible, but ordered that the CSSF hand over a part of the relevant documentation.

The case went to the Luxembourg Administrative Court (appeals), which decided, in its decision of 16 December 2014, that the sanction to which the initial complainant had been subjected (i.e. the withdrawal of his authorisation to exercise, and his dismissal from, the function he had occupied) was severe and that, although the sanction had been pronounced as an administrative measure, it could, in accordance with established case law of the European Court of Human Rights (ECtHR), be considered equal to a measure covered by criminal law. In criminal law cases, professional secrecy cannot be invoked as a reason for refusing to disclose relevant information to the defendant, who is entitled to an effective remedy and a fair trial, including access to information which is relevant to his defence.

Following this decision, two different third parties requested third party proceedings on the basis that they would be negatively affected by the decision of the Administrative Court, inasmuch as part of the documentation that the latter had order to be disclosed by the CSSF referred to them directly. During this additional phase of the proceedings, the Administrative Court decided to request a preliminary ruling by the CJEU with regard to the applicability of EU law and, in particular, the Charter. 

The relevant legal norms in the present case are:

Amended Act of 21 June 1999 regarding rules of procedure before administrative jurisdictions (Loi modifiée du 21 juin 1999 portant règlement de procédure devant les juridictions administratives); Grand-ducal regulation of 8 June 1979 (Règlement grand-ducal du 8 juin 1979); Amended Act of 23 December 1998 regarding the creation of the CSSF (Loi modifiée du 23 décembre 1998 portant création de la CSSF); Directive 2004/39/CE on markets in financial instruments; Act of 13 July 2007 regarding markets in financial instruments and transposing Directive 2004/39/CE on markets in financial instruments (Loi du 13 juillet 2007 relative aux marchés d'instruments financiers et portant transposition de la directive 2004/39/CE du Parlement européen et du Conseil du 21 avril 2004 concernant les marchés d'instruments financiers); ECHR; Charter.

Outcome of the case: 

The Luxembourg Administrative Court decided to refer a request for a preliminary ruling to the CJEU.