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Menci & Garlsson Real Estate SA and Others v. Commissione Nazionale per le Società e la Borsa (Consob) & Joined Cases Di Puma v. Consob and Consob v. Zecca (CJEU)

Published online by Cambridge University Press:  25 September 2018

Anita Clifford*
Affiliation:
Anita Clifford is barrister at Bright Line Law in London, specializing in financial and corporate crime cases. She is also an Australian solicitor and has worked in private practice as well as in-house at a law enforcement authority. She holds a Master of Laws (Distinction) from the London School of Economics and BA / LLB (First Class Honours) from the University of Queensland.

Extract

On March 20, 2018, the Grand Chamber of the Court of Justice of the European Union delivered a trio of judgments that substantially clarify the application of the ne bis in idem principle where both criminal and administrative proceedings are pursued. Both the Charter of Fundamental Rights of the European Union (the Charter) and the European Convention on Human Rights (ECHR) recognize the principle, but it will be more familiar to common law practitioners as the protection against double jeopardy. Increasingly, dual investigations are common in cases where the underlying activity is essentially financial crime, but tender areas continue to be information sharing and the risk of duplicate punishment where both investigations end in enforcement action. Concerning four cases, Case C-524/15 Menci, Case C-537/16 Garlsson Real Estate and Others, and joined Cases C-596/16 Di Puma and C-597/16 Zecca, each of the judgments addresses preliminary questions referred by the Italian courts; they are significant because they emphasize that ne bis in idem will not serve as a bar to a dual response. The interest in protecting the financial markets justifies limits to the principle but great care must be taken to coordinate the approaches and identify whether a further criminal sanction is masquerading as an administrative penalty.

Type
International Legal Documents
Copyright
Copyright © 2018 by The American Society of International Law 

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References

ENDNOTES

1 Case C-617/10, Åklagaren v. Åkerberg Fransson, 2013 ECR 105 [hereinafter Åklagaren].

2 Case C-524/15, Menci, 2018 ECR 197 [hereinafter Menci], ¶ 20.

3 Id. ¶ 44.

4 Åklagaren, supra note 1.

5 Menci, supra note 2, ¶ 31.

6 Id. ¶ 33.

7 Id. ¶ 49.

8 Id. ¶¶ 57–58.

9 Garlsson Real Estate SA and Others v. Commissione Nazionale per le Società e la Borsa (Consob), 2018 ECR 193 [hereinafter Garlsson], ¶ 46.

10 Id. ¶ 56.

11 Id. ¶ 64.

12 Id. ¶ 7.

13 Id. ¶ 57.

14 Id. ¶ 63.

15 Joined cases 596/16 & 597/16, Di Puma v. Commissione Nazionale per le Società e la Borsa (Consob) & Commissione Nazionale per le Società e la Borsa (Consob) v. Zecca, 2018 ECR 192, ¶ 44.

16 Id. ¶ 46.

17 Garlsson, supra note 9, ¶ 53.

18 Id. ¶ 57.

19 A and B v. Norway, 2016 ECHR 987.