A natural person subject to an administrative investigation for insider trading has the right to remain silent when his or her answers could point to criminal responsibility, but this right to silence does not justify any failure to cooperate with the competent authorities, the Court of Justice of the European Union ruled on Tuesday 2 February (case C-481/19).
Sentenced to a fine of €300,000 for insider trading by the Italian Stock Exchange Commission (Consob), DB contests the fine of €50,000 that the Consob also imposed on him for failure to cooperate, as DB requested several times that his hearing be postponed and remained silent when he appeared at the hearing.
Referred by the Italian Constitutional Court, the Court of Justice examines whether the Market Abuse Directive (2003/6) and the Market Abuse Regulation (596/2014) are compatible with the Charter of Fundamental Rights of the European Union (Articles 47 and 48) and, in particular, with the right to remain silent.
In the light of the case-law of the European Court of Human Rights, the European judge emphasises that the right to silence, which is at the heart of the concept of ‘fair trial’ enshrined in the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6), precludes an ‘accused’ natural person from being punished for his refusal to provide the competent authority under EU law with answers which could point to his responsibility for an offence punishable by administrative penalties of a criminal nature, or his criminal liability.
The Court clarifies, in this respect, that the obligation for companies to provide information in similar cases does not apply by analogy to establish the scope of the right to silence of a natural person accused of insider trading. Nevertheless, the Court added, the right to silence does not justify any failure to cooperate with the competent authorities, such as a refusal to appear at a hearing.
Finally, the EU judge considers that Directive 2003/6 and Regulation 596/2014 lend themselves to an interpretation consistent with the right to silence because they do not require that a natural person be sanctioned for exercising his or her right to silence.
See the judgment of the Court: http://bit.ly/2MN5uQC (Original version in French by Mathieu Bion)