1) This request for a preliminary ruling concerns the interpretation of Article 54(1) and (3) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1), read in conjunction with Articles 41, 47 and 48 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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25) In that regard, the referring court considers that it is faced with two types of questions concerning the interpretation of Article 54 of Directive 2004/39. In the first place, it is uncertain as to the scope, in the light of Article 41 of the Charter, of the exception of ‘cases covered by criminal law’ referred to in Article 54(1) and (3). In the second place, it asks how the requirements and guarantees deriving from Articles 47 and 48 of the Charter and from Articles 6 and 13 ECHR should be reconciled with the obligation to maintain professional secrecy enshrined in Article 54 of the directive.

26) In those circumstances, the Cour administrative (Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

1. Against the background in particular of Article 41 of the Charter enshrining the principle of good administration, does the exception of ‘cases covered by criminal law’ found at the end of Article 54(1) of Directive 2004/39 and at the beginning of Article 54(3) — cover a situation concerning, according to national law, an administrative sanction, but considered from the point of view of the ECHR to be part of criminal law, such as the sanction at issue in the main proceedings, imposed by the national regulator, the national supervisory authority, and consisting in ordering a member of the national bar association to cease holding a post as director or any other post subject to accreditation in an entity supervised by that regulator and ordering him to resign from all his posts at the earliest opportunity?
2. Inasmuch as the aforementioned administrative sanction, regarded as such under national law, stems from administrative proceedings, to what extent is the obligation of professional secrecy, which a national supervisory authority may invoke under Article 54 of Directive 2004/39, subject to the requirements for a fair trial including an effective remedy as laid down in Article 47 of the Charter, examined in relation to the parallel requirements of Articles 6 and 13 ECHR relating to a fair trial and an effective remedy, [as well as] the safeguards provided for by Article 48 of the Charter, in particular as regards full access for the person on whom the administrative sanction has been imposed to the administrative file of the author of the sanction, which is also the national supervisory authority, for the purpose of protecting the interests and civil rights of the person on whom the sanction has been imposed?’

27) By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 54(1) and (3) of Directive 2004/39, read in conjunction with Article 41 of the Charter, should be interpreted as meaning that the exception to the obligation of professional secrecy laid down in that provision and relating to ‘cases covered by criminal law’ applies to a situation in which the authorities established by the Member States for the purpose of fulfilling the functions set out in that directive (‘the competent authorities’) adopt a measure or a sanction covered by national administrative law. If this should not be the case, it seeks to ascertain to what extent that obligation of professional secrecy is in any event restricted by the right to an effective remedy and a fair trial and by the respect for the rights of the defence enshrined in Articles 47 and 48 of the Charter, read in the light of Articles 6 and 13 ECHR.

28) In the first place, with regard to the situations referred to by the phrase ‘cases covered by criminal law’ within the meaning of Article 54(1) and (3) of Directive 2004/39, read in conjunction with Article 41 of the Charter, it should be noted that it is clear from the wording of Article 41 of the Charter that it is addressed not to the Member States but solely to the institutions, bodies, offices and agencies of the European Union (judgments of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 83 and of 9 March 2017, Doux, C‑141/15, EU:C:2017:188, paragraph 60). It follows that Article 41 of the Charter is irrelevant to the case in the main proceedings.

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48) It is nonetheless appropriate to examine, in the second place, to what extent the obligation of professional secrecy provided for in Article 54(1) of Directive 2004/39 is in any event restricted by the right to an effective remedy and a fair trial and by the respect for the rights of the defence enshrined in Articles 47 and 48 of the Charter, read in the light of Articles 6 and 13 ECHR.

49) As a preliminary point, in so far as the referring court also refers to Articles 6 and 13 ECHR, it should be recalled that, 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, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into EU law (judgment of 20 March 2018, Garlsson Real Estate and Others, C‑537/16, EU:C:2018:193, paragraph 24 and the case-law cited).

50) The explanations relating to the Charter, which, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, have to be taken into consideration for the purpose of interpreting it (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 47), make clear that Articles 47 and 48 of the Charter ensure that the protection conferred by Articles 6 and 13 ECHR is safeguarded under EU law. It is therefore appropriate to refer to those articles of the Charter alone.

51) Furthermore, it should be borne in mind that the Court has consistently held that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law and that the applicability of EU law entails applicability of the fundamental rights guaranteed by the Charter (judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 49 and the case-law cited).

52) In the case in the main proceedings, it appears from the evidence submitted to the Court that the decisions of the CSSF at issue are based on national provisions designed to implement EU law within the meaning of Article 51(1) of the Charter. It follows that the provisions of the Charter are applicable in this case.

53) What is more, it should also be borne in mind that, in accordance with a general principle of interpretation, an EU measure must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole and, in particular, with the provisions of the Charter (judgment of 15 February 2016, N., C‑601/15 PPU, EU:C:2016:84, paragraph 48).

54) In that regard, as concerns, first, the right to an effective remedy, the first paragraph of Article 47 of the Charter provides that everyone whose rights and freedoms guaranteed by EU law are infringed has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.

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56) As regards, specifically, the existence of a right guaranteed by EU law within the meaning of the first paragraph of Article 47 of the Charter, it should be borne in mind that, according to settled case-law, protection against arbitrary or disproportionate intervention by public authorities in the sphere of the private activities of any natural or legal person constitutes a general principle of EU law. That protection may be invoked by a relevant person in respect of a measure adversely affecting him (see, to that effect, judgment of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraphs 51 and 52).

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59) Secondly, as regards the right to a fair trial, guaranteed by the second paragraph of Article 47 of the Charter, it is important to note that respect for the rights of the defence is a particular aspect of the right to a fair trial (see, to that effect, ECtHR, 1 June 2010, Gäfgen v. Germany, ECLI:CE:ECHR:2010:0601JUD002297805, § 169, and judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 48). Respect for the rights of the defence is also enshrined in Article 48(2) of the Charter.

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71) In the light of all the foregoing, the answer to the questions referred is that Article 54 of Directive 2004/39 must be interpreted as meaning that:

• the phrase ‘cases covered by criminal law’ in paragraphs 1 and 3 of that article do not cover the situation in which the competent authorities adopt a measure, such as that at issue in the main proceedings, consisting in prohibiting a person from holding a post as director or any other post subject to accreditation in an undertaking supervised by that regulator and ordering him to resign from all related posts at the earliest opportunity, on the ground that that person no longer fulfils the requirement of good repute provided for in Article 9 of that directive, which is part of the measures that the competent authorities are required to take when exercising the powers attributed to them under Title II of that directive. That provision, in providing that the obligation of professional secrecy may exceptionally be disregarded in such cases, covers the communication or use of confidential information for the purpose of conducting proceedings or imposing sanctions in accordance with national criminal law;
• the obligation of professional secrecy provided for in paragraph 1 of that article, read in conjunction with Articles 47 and 48 of the Charter, must be guaranteed and implemented in such a way as to reconcile it with the rights of the defence. Accordingly, it is for the competent national court, when a competent authority invokes that obligation in order to refuse to disclose documents in its possession that are not in the file concerning the person who is the subject of a measure adversely affecting him, to ascertain whether that information is objectively connected to the complaints upheld against him and, if this should be the case, to weigh up the interest of the person in question in having access to the information necessary for him to be in a position to exercise fully his rights of defence and the interests in connection with maintaining the confidentiality of the information covered by the obligation of professional secrecy, before taking a decision whether to communicate each of the requested pieces of information.