On 20 March 2018, in the 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) [References for a preliminary ruling — Directive 2003/6/EC — Insider dealing — Penalties — National legislation which provides for an administrative penalty and a criminal penalty for the same acts — Res judicata attached to a final criminal judgment relating to administrative proceedings — Final criminal judgment ordering acquittal in respect of insider dealing — Effectiveness of the penalties — Charter of Fundamental Rights of the European Union — Article 50 — Ne bis in idem principle — Criminal nature of the administrative sanction — Existence of the same offence — Article 52(1) — Limitations to the ne bis in idem principle — Conditions], the Grand Chamber stated that:
- “Article 14(1) of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse), read in the light of Article 50 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding national legislation in accordance with which proceedings for an administrative fine of a criminal nature may not be brought following a final criminal judgment of acquittal ruling that the acts capable of constituting a violation of the legislation relating to insider dealing, on the basis of which those proceedings had also been initiated, were not established”.
On 20 March 2018, in the case C‑537/16, Garlsson Real Estate SA, in liquidation, Stefano Ricucci, Magiste International SA v. Commissione Nazionale per le Società e la Borsa (Consob) [Reference for a preliminary ruling — Directive 2003/6/EC — Market manipulation — Penalties — National legislation which provides 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 penalties — Existence of the same offence– Article 52(1) — Limitations to the ne bis in idem principle — Conditions], the Grand Chamber stated: that:
- “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.
- 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”
On 20 March 2018, in the case C‑524/15, criminal proceedings against Luca Menci, intervening parties Procura della Repubblica [Reference for a preliminary ruling — Value added tax (VAT) — Directive 2006/112/EC — Failure to pay VAT due — Penalties — National legislation which provides 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], the Grand Chamber stated:
- Article 50 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding national legislation in accordance with which criminal proceedings may be brought against a person for failing to pay value added tax due within the time limits stipulated by law, although that person has already been made subject, in relation to the same acts, to a final administrative penalty of criminal nature for the purposes of Article 50 of the Charter, on condition that that legislation
- pursues an objective of general interest which is such as to justify such a duplication of proceedings and penalties, namely combating value added tax offences, it being necessary for those proceedings and penalties to pursue additional objectives,
- contains rules ensuring coordination which limits to what is strictly necessary the additional disadvantage which results, for the persons concerned, from a duplication of proceedings, and
- provides for rules making it possible to ensure that the severity of all of the penalties imposed is limited to what is strictly necessary in relation to the seriousness of the offence concerned.
It is for the referring court to ensure, taking into account all of the circumstances in the main proceedings, that the actual disadvantage resulting for the person concerned from the application of the national legislation at issue in the main proceedings and from the duplication of the proceedings and penalties that that legislation authorises is not excessive in relation to the seriousness of the offence committed”
