CJEU Case C-481/19 | DB v Commissione Nazionale per le Società e la Borsa (Consob)

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Publication Date 2019-2021
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Information Guide concerning Case C-481/19 from the Court of Justice of the European Union (CJEU), which relates to market abuse, insider dealing and the right to remain silent.

Further information:

In May 2012, the Italy's National Companies and Stock Exchange Commission (Commissione Nazionale per le Società e la Borsa - Consob) imposed penalties on an individual for an administrative offence of insider dealing committed in 2009. It also imposed a penalty on the same individual for failure to cooperate.

Following the dismissal of his appeal against those penalties, the individual brought an appeal before the Italian Supreme Court of Cassation (Corte suprema di Cassazione). In February 2018, the Court referred an interlocutory question of constitutionality to the Italian Constitutional Court (Corte Costituzionale) concerning the provision of Italian law on the basis of which the penalty for failure to cooperate was imposed. That provision penalises anyone who fails to comply with Consob’s requests in a timely manner or delays the performance of that body’s supervisory functions, including with regard to the person in respect of whom Consob alleges an offence of insider dealing.

The Constitutional Court pointed out that, under Italian law, insider dealing constitutes both an administrative offence and a criminal offence. Moreover, the provision at stake was implemented under Directive 2003/6 and Regulation No 564/2014. It therefore requested a preliminary ruling from the CJEU on whether those measures are compatible the Charter of Fundamental Rights of the European Union and, in particular, the right to remain silent.

On 2 February 2021, the Court ruled that natural persons who are subject to an administrative investigation for insider dealing have the right to remain silent when their answers might establish their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability. However, the CJEU adds that the right to silence cannot justify every failure to cooperate with the competent authorities, such as refusing to appear at a hearing or using delay.

Related Links
Commentary and Analysis
European Papers: Insights, 14/01/2021: Halcyon Days for the Right to Silence: AG Pikamäe’s Opinion in Case DB v. Consob https://www.europeanpapers.eu/en/europeanforum/halcyon-days-right-silence-ag-pikamae-opinion-db-consob
White & Case: Alerts, 09/02/2021: The European Court of Justice affirms the right to silence https://www.whitecase.com/publications/alert/european-court-justice-affirms-right-silence
Allen & Overy: Publications, 11/02/2021: Consob sanction proceedings – The Court of Justice on the right to remain silent https://www.allenovery.com/en-gb/global/news-and-insights/publications/consob-sanction-proceedings-the-court-of-justice-on-the-right-to-remain-silent

CJEU CURIA: Case C-481/19 | Consob http://curia.europa.eu/juris/documents.jsf?num=C-481/19
CJEU: Press Release No 11/21, 02/02/2021: Judgment in Case C-481/19 DB v Commissione Nazionale per le Società e la Borsa (Consob) https://curia.europa.eu/jcms/upload/docs/application/pdf/2021-02/cp210011en.pdf

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