Enzo Di Puma and Consob

On 20 March 2018, the Court (Grand Chamber) delivered its judgment in joined cases C-596/16 and C-597/16 on the interpretation of Article 50 of the Charter on the ne bis in idem principle in the context of a national legislation which provides for an administrative penalty and a criminal penalty for the same acts, relating to insider dealing.

Consob imposed penalties on Mr Zecca and Mr Di Puma, who purchased certain shares using inside information. More 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. Mr Zecca disclosed that information to Mr Di Puma, inducing him to purchase shares in those two companies. Mr Di Puma purchased shares in Guala Closures and, with the assistance of Mr Zecca, shares in Permasteelisa.

Consob imposed a financial penalty on Mr Zecca for having induced Mr Di Puma to purchase shares in Guala Closures, for having disclosed to Mr Di Puma inside information concerning the plan to take control of Permasteelisa, and for the purchase shares in Permaasteelisa. In the same decision, Consob imposed a financial penalty on Mr Di Puma for the purchase of the shares in Guala Closures and for the purchase of the shares in Permaasteelisa. Mr Zecca and Mr Di Puma appealed against the administrative penalty to the Corte di appello di Milano and subsequently lodged an appeal against that judgment with the Corte suprema di cassazione. They submit that the Criminal Division of the Tribunale di Milano acquitted them in relation to the conduct for which Consob imposed the administrative penalties on them, on the ground that the relevant facts had not been made out, and that that judgment has become final.

After observing that that judgment of acquittal indeed related to the same acts as those in respect of which Consob imposed, by decision of 7 November 2012, the administrative fines at issue in the main proceedings, the Cassation Court noted that, under the Italian Code of Criminal Procedure, the findings contained in that judgment of acquittal as regards the lack of an offence have res judicata effect with regard to administrative proceedings.

By its questions, the Italian Cassation Court asked, in essence, whether Article 14(1) of Directive 2003/6, read in the light of Article 50 of the Charter, must be interpreted as 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.

In its judgment, the Court first stressed that, in light of the importance of the principle of res judicata both in the legal order of the EU and in national legal orders, it has held that EU law does not preclude the application of national procedural rules conferring res judicata effects on a judicial decision. In the cases in the main proceedings, it found no particular circumstances which may justify a different approach.

It noted that the res judicata effects which a national provision confers on the factual conclusions of such a criminal judgment in relation to proceedings for an administrative fine do not prevent the finding of violations of the legislation on insider dealing and that they be effectively punished, where, according to the terms of that judgment, the facts at issue are established.

It found that Article 14(1) of Directive 2003/6 does not preclude national legislation, such as that at issue in the main proceedings and that such interpretation is confirmed by Article 50 of the Charter.

In particular, it noted that, in a situation such as that at issue in the main proceedings, the bringing of proceedings for an administrative fine of a criminal nature clearly exceeds what is necessary in order to achieve the objective of protecting the integrity of financial markets and public confidence in financial instruments, since there exists a judgment of acquittal holding that there are no factors constituting an offence which Article 14(1) of Directive 2003/6 seeks to punish.

It concluded that Article 14(1) of Directive 2003/6, read in the light of Article 50 of the Charter, 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.