25) Against that background, the Cour administrative (Administrative Court of Appeal) has referred the following questions under Article 267 TFEU to the Court for a preliminary ruling:

1. Against the background in particular of Article 41 of the Charter of Fundamental Rights of the European Union (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/EC 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 European Convention for the Protection of Human Rights and Fundamental Freedoms (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/EC, 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, which together constitute 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?’

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56) The extent to which the general principle of good administration ( 26 ) enshrined in Article 41 of the Charter, and the right of access to the file ( 27 ) guaranteed thereby are in keeping with Article 54 of the directive, must be considered in the context of the second question referred.

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60) The term ‘cases covered by criminal law’ can be interpreted independently by drawing on the case-law of the Court in connection with the principle of non bis in idem laid down in Article 50 of the Charter. With reference to the ‘Engel criteria’ ( 28 ) of the European Court of Human Rights (‘the ECtHR’) the Court ruled that three criteria are relevant for the purpose of assessing whether a measure is criminal in nature. The first criterion is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the nature and degree of severity of the penalty that the person concerned is liable to incur.

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74) 

By its second question the national court essentially wishes to ascertain whether the form of the professional secrecy in Article 54 of the directive complies with the guarantees of a fair trial and an effective remedy under Articles 47 and 48 of the Charter and Articles 6 and 13 of the ECHR in relation to the right of the addressee of a measure such as that at issue to have access to the file.

75) First of all, it should be pointed out that the ECHR does not constitute a legal instrument which has been formally incorporated into EU law and therefore Article 54 of the directive must be interpreted solely in the light of Articles 47 and 48 of the Charter. ( 36 ) 

76) The first paragraph of Article 47 of the Charter lays down the right to an effective remedy before a court and the second the right to a fair hearing

77) The directive ensures that the requirements for an effective remedy under the first paragraph of Article 47 of the Charter are complied with. Article 52(1) of the directive provides that decisions of the competent authority are to be properly reasoned and there must be a right to apply to the courts. As regards the effectiveness of the remedy, the guarantee provided by the first paragraph of Article 47 of the Charter merely ensures that there is a right to apply to a court which is independent of the authority responsible for the detrimental decision and has jurisdiction to review the decision. The fact that these requirements are also satisfied in the present case is demonstrated by the grounds for the decision of the CSSF of 4 January 2010 and the main proceedings.

78) First, the right to a fair trial referred to in the second paragraph of Article 47 of the Charter covers the adversarial principle. It means that the parties have a right to a process of inspecting and commenting on all the evidence and observations submitted to the court. ( 37 ) However, this right is not affected in cases such as the present. The parties are not arguing about information which has been entered into the judicial proceedings. There is thus no reason to fear that the judicial decision was founded on facts and documents which one of the parties has not had an opportunity to examine. ( 38 )

79) Second, the right to a fair trial under the second paragraph of Article 47 of the Charter covers protection of the rights of defence. This expression of the general principle of EU law has its equivalent in terms of administrative proceedings in Article 41, and in terms of criminal proceedings in Article 48(2) of the Charter. The protection of the rights of defence also covers the right of access to the file.

80) As shown by Article 41(1)(b) of the Charter, for example, this right extends to a person having access to ‘his or her’ file person. Firstly, it includes all the incriminating information and documents on which the authority based its decision. ( 39 ) Secondly, the right of access to the file also includes exculpatory documents ( 40 ) and those which were not used as grounds for the decision but have an objective link with them. ( 41 ) This does not depend on the file in which the information is physically placed.

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82) However, the CSSF obtained these documents in connection with its activities supervising UBS and Luxalpha. The fact that the information concerns third parties does not rule out the right of access to the file. Their fundamental rights still have to be taken into account. The right of access to the file does not apply absolutely but rather, as demonstrated by Article 41(2)(b) of the Charter, for example, is subject to respect for the legitimate interests of confidentiality and of professional and business secrecy.

83) Consequently, a balance must be struck between the right of access to the file and professional secrecy. In the case of Directive 2004/39 Article 54 is the result of the process of such a balance being struck by the European legislature. It is necessary to ascertain whether a proportionate balance between conflicting interests has been struck for the purposes of Article 52(1) of the Charter.

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94) As regards Article 48 of the Charter, it should be noted that it protects the presumption of innocence and rights of the defence which must be enjoyed by a person ‘who has been charged’, ( 46 ) that is to say it is aimed at genuine criminal proceedings.

95) Consequently, the basic right is irrelevant to the present case. Neither the supervisory proceedings which led to the adoption of the administrative decision of the CSSF of a preventative nature, nor the administrative proceedings to review that decision, can be classified as criminal proceedings.

96) Even if there were such proceedings, Article 48 of the Charter does not preclude the form of professional secrecy in Article 54 of the directive. My proposal of a ‘procedural’ interpretation of ‘cases covered by criminal law’ within the meaning of Article 54(1) and (3) of the directive allows confidential information to be divulged to the criminal prosecution authorities. It is then for the criminal prosecution authorities to divulge to the person who has been charged the information necessary to protect his rights, in accordance with national law on criminal procedure.