1) These requests for a preliminary ruling concern the interpretation of Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and of Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) (OJ 2014 L 173, p. 179).

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17) 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 referring court notes that, under Article 654 of the CPP, the findings contained in that judgment of acquittal as regards the lack of an offence have res judicata effect with regard to administrative proceedings. It considers however that the disputes before it cannot be resolved solely on the basis of national legislation, in view of the primacy of Article 4 of Protocol No 7 to the ECHR and of Article 50 of the Charter over that legislation.

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19) The referring court is unsure whether Article 50 of the Charter precludes also such a duplication of proceedings and penalties. Under Article 14(1) of Directive 2003/6, Member States are required to punish insider dealing with effective, proportionate and dissuasive administrative penalties. Therefore, according to that provision, the competent national authorities should assess the effectiveness, proportionality and dissuasiveness of an administrative penalty together with a criminal penalty.

20) In its judgment of 26 February 2013, Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 34 and 36), the Court held, first, that Article 50 of the Charter precludes that, after the imposition of a final administrative penalty having a criminal nature for the purposes of that article, criminal proceedings in relation to the same acts be brought against the same person, but, secondly, that it is for a national court to determine whether the remaining penalties are effective, proportionate and dissuasive. In view of that case-law, the referring court asks whether Article 50 of the Charter must be interpreted as authorising proceedings for an administrative fine following a final criminal judgment, which has res judicata effect, holding that there was no offence, where those proceedings may appear necessary in order to comply with the obligation to provide for effective, proportionate and dissuasive penalties.

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22) In those circumstances, the Corte suprema di cassazione (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Is Article 50 of the Charter … to be interpreted as meaning that, where a court has delivered a final judgment finding a defendant not to have committed the criminal offence alleged, it precludes the initiation or prosecution of further proceedings based on the same facts with a view to the imposition of penalties which, on account of their nature and severity, may be regarded as criminal penalties, without it being necessary for the national court to make any further assessment?

(2) In assessing the effectiveness, proportionality and dissuasiveness of penalties, in the context of determining whether there has been a breach of the ne bis in idem principle referred to in Article 50 of the Charter …, must a national court take into account the thresholds for sanctions laid down in Directive 2015/57 …?’

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24) First of all, it should be noted that, although the first question concerns the interpretation of Article 50 of the Charter, the referring court asks, in particular, about the compatibility of Article 654 of the CPP with Article 14(1) of Directive 2003/6 and the fundamental right guaranteed by Article 50 of the Charter. According to that court, an interpretation according to which Article 14(1) of that directive requires, irrespective of the ne bis in idem principle, proceedings for an administrative fine to be brought even following a final criminal conviction which has res judicata effect, would be liable to call into question the principle of res judicata, contrary to what is provided for by Article 654 of the CPP.

25) In those circumstances, it is necessary to understand that, by its first question, the referring court asks, 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.

26) In that regard, it must be noted that Article 14(1) of Directive 2003/6, read in conjunction with Articles 2 and 3 thereof, requires Member States to have rules on effective, proportionate and dissuasive penalties for violations of the prohibition on insider dealing. Although the Court has held that Article 14(1) of that directive merely requires Member States to provide administrative penalties presenting those characteristics, without requiring Member States also to lay down criminal sanctions against authors of insider dealing (see, to that effect, judgment of 23 December 2009, Spector Photo Group and Van Raemdonck, C‑45/08, EU:C:2009:806, paragraph 42), the fact remains that Member States are also entitled to provide for a duplication of criminal and administrative sanctions, complying, however, with the limits imposed by EU law and, in particular, those resulting from the ne bis in idem principle guaranteed by Article 50 of the Charter, the latter applying, in accordance with Article 51(1) thereof, when implementing that law.

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37) That interpretation is confirmed by Article 50 of the Charter.

38) In that regard, it is apparent from the order for reference that the acts of which Mr Di Puma and Mr Zecca are accused in the context of the proceedings for an administrative fine at issue in the main proceedings are the same as those on the basis of which criminal proceedings were brought against them before the Tribunale di Milano (District Court, Milan). Moreover, the administrative fines at issue in the main proceedings can, according to the information in the case file before the Court, reach, in accordance with Article 187a of the TUF, an amount 10 times greater than the proceeds or profit derived from the offence. It thus appears that they are punitive in character and present a high degree of severity and, therefore, are criminal in nature for the purposes of Article 50 of the Charter (see, to that effect, judgment of 20 March 2018, Garlsson Real Estate, C‑537/16, EU:C:2018:193, paragraphs 34 and 35), which it is however for the referring court to determine.

39) It must be added that, according to the wording itself of Article 50 of the Charter, the protection conferred by the ne bis in idem principle is not limited to situations in which the person concerned has been subject to a criminal conviction, but extends also to those in which that person is finally acquitted.

40) It appears therefore that the bringing of proceedings for an administrative fine of a criminal nature, based on the same facts, constitutes a limitation of the fundamental right guaranteed by Article 50 of the Charter (see, by analogy, judgments of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 39, and of 20 March 2018, Garlsson Real Estate, C‑537/16, EU:C:2018:193, paragraph 41).

41) Such a limitation of the ne bis in idem principle may however be justified on the basis of Article 52(1) of the Charter (see, to that effect, judgments of 27 May 2014, Spasic, C‑129/14 PPU, EU:C:2014:586, paragraphs 55 and 56; of 20 March 2018, Menci, C‑524/15, EU:C:2018:197, paragraph 40, and of 20 March 2018, Garlsson Real Estate, C‑537/16, EU:C:2018:193, paragraph 42).

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45) In light of such a conclusion, which has res judicata effect also in relation to such proceedings, the bringing of those proceedings seems to be devoid of any basis. Article 50 of the Charter thus precludes, in such a situation, the bringing of proceedings for an administrative fine of a criminal nature, such as that at issue in the main proceedings, without prejudice to the possibility, referred to in paragraph 35 of the present judgment, of reopening, where appropriate, criminal proceedings where there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the criminal judgment.

46) In view the foregoing considerations, the answer to the first question is 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.

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48 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Grand Chamber) hereby rules:

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. [Signatures]