CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 mars 2014

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border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     SECOND SECTION           CASE OF GRANDE STEVENS v. ITALY   (Application no. 18640/10)                 JUDGMENT (Merits)     STRASBOURG     4 March 2014     FINAL   07/07/2014         This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Grande Stevens v. Italy, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President,   Guido Raimondi,   Peer Lorenzen,   Dragoljub Popović,   András Sajó,   Paulo Pinto de Albuquerque,   Helen Keller, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 28 January 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in five applications (nos. 18640/10, 18647/10, 18663/10, 18668/10 and 18698/10) against the Republic of Italy lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Italian nationals and two companies registered in Italy, Mr Franzo Grande Stevens, Mr Gianluigi Gabetti, Mr Virgilio Marrone, Exor S.p.a. and Giovanni Agnelli & C. S.a.s. (“the applicants”), on 27   March 2010. 2.     The applicants were represented by Mr A. Bozzo and Mr G. Bozzi, lawyers practising in Milan and Rome respectively. Mr Grande Stevens was also represented by Mr N. Irti, a lawyer practising in Milan. The Italian Government (“the Government”) were represented by their Agent, Ms   E.   Spatafora, and their co-Agent, Ms P. Accardo. 3.     The applicants alleged, in particular, that the judicial proceedings brought against them had not been fair and had not been conducted before an independent and impartial “tribunal”, that there had been a breach of their right to peaceful enjoyment of their possessions and that there had been a violation of the ne bis in idem principle in their respect. 4.     On 15 January 2013 the applications were declared partly inadmissible and the complaints under Article 6 of the Convention, Article   1 of Protocol No. 1 and Article 4 of Protocol No. 7 were communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     A list of the applicant parties is appended. A.     The context of the case 6.     At the relevant time Mr Gianluigi Gabetti was the chairman of the two applicant companies and Mr Virgilio Marrone was the authorised representative ( procuratore ) of the applicant company Giovanni Agnelli &   C. s.a.a. 7 .     On 26 July 2002 the public limited company FIAT ( Fabbrica Italiana Automobili Torino ) signed a financing agreement ( prestito convertendo ) with eight banks. That contract was due to expire on 20 September 2005 and stipulated that, should FIAT fail to reimburse the loan, the banks could offset their claim by subscribing to an increase in the company’s capital. Thus, the banks would have obtained 28% of FIAT’s share capital, while the holdings of the public limited company IFIL Investments (which subsequently, on 20 February 2009, became Exor s.p.a., the name by which it will be referred to hereafter) would have decreased from 30.06% to about 22%. 8.     Mr Gabetti wished to obtain legal advice on the best way to ensure that Exor remained the controlling shareholder in FIAT, and to this end he contacted a lawyer specialising in company law, Mr Grande Stevens. He considered that one possibility would be to renegotiate an equity swap (that is, a contract allowing a share’s performance to be exchanged against an interest rate, without having to advance money), dated 26 April 2005 and based on approximately 90 million FIAT shares, concluded by Exor with an English merchant bank, Merrill Lynch International Ltd, which was due to expire on 26   December 2006. In Mr   Grande Stevens’s opinion, this would be one way to prevent the launch of a takeover bid with regard to the FIAT shares. 9 .     Without mentioning Merrill Lynch International Ltd for fear of breaching his duty of confidentiality, on 12 August 2005 Mr Grande Stevens asked the National Companies and Stock Exchange Commission ( Commissione Nazionale per le Società e la Borsa – “the CONSOB”, which in the Italian legal system, has the task, inter alia , of protecting investors and ensuring the transparency and development of the stock markets) whether, in the scenario he envisaged, a takeover bid could be avoided. At the same time Mr Grande Stevens began making enquires with Merrill Lynch International Ltd about the possibility of amending the equity swap contract. 10.     On 23 August 2005 the CONSOB asked Exor and Giovanni Agnelli to issue a press release providing information on any initiative taken in the light of the forthcoming expiry of the financing agreement with the banks, any new fact concerning FIAT and anything that might explain the market fluctuations in FIAT shares. 11.     Mr Marrone alleges that he was on leave on that date. He had informed Mr Grande Stevens of the CONSOB’s request and had sent him a copy of it. Mr Marrone submits that he was not involved in drafting the press releases described in paragraphs 13 and 14 below. 12.     Mr Gabetti submits that on 23 August 2005 he was in hospital in the United States. He had received a draft press release and had contacted Mr   Grande Stevens by telephone; the lawyer had confirmed to him that, given the significant number of elements that remained uncertain, renegotiation of the equity swap contract could not be considered as a relevant and currently available option. In those circumstances, Mr Gabetti approved the draft press release. 13 .     The press release issued in response [to the CONSOB’s query], approved by Mr   Grande Stevens, merely indicated that Exor had “neither instituted nor examined initiatives with regard to the expiry of the financing contract” and that it wished “to remain FIAT’s reference shareholder”. No mention was made of the possible renegotiation of the equity swap contract with Merrill Lynch International Ltd, which, in the absence of a clear factual and legal basis, the applicants considered merely as one possible future scenario. 14 .     The Giovanni Agnelli Company confirmed Exor’s press release. 15.     From 30 August to 15 September 2005 Mr Grande Stevens continued his negotiations with Merrill Lynch International Ltd, exploring the options for amending the equity swap contract. 16.     On 14 September 2005, in the course of an Agnelli family meeting, it was decided that the draft text being studied by Mr Grande Stevens ought to be submitted for approval by the Exor board of management. On the same day, the CONSOB received a copy of the equity swap contract and was informed of the negotiations under way with a view to using that contract to enable Exor to acquire FIAT shares. 17.     On 15 September 2005, in execution of the decisions taken by their respective boards of management, Exor and Merrill Lynch International Ltd concluded the agreement on amending the equity swap contract. 18.     On 17 September 2005, in response to the question posed to it by Mr   Grande Stevens on 12 August 2005 (see paragraph 9 above), the CONSOB indicated that, in the scenario envisaged, there was no obligation to launch a takeover bid. 19 .     On 20 September 2005 FIAT increased its share capital; the new shares were acquired by the eight banks in compensation for the sums owed to them. On the same date the agreement amending the equity swap contract took effect. In consequence, Exor continued to hold a 30% stake in FIAT. B.     The proceedings before the CONSOB 20 .     On 20 February 2006 the CONSOB’s Markets and Economic Opinions Division – Insider Trading Office ( Divisione mercati e consulenza economica – ufficio Insider Trading – hereafter the “IT Office”) accused the applicants of breaching Article 187 ter § 1 of Legislative Decree no. 58 of 24 February 1998. That article, entitled “Market Manipulation”, provides: “Without prejudice to criminal penalties where the conduct amounts to an offence, any person who, through means of information, including Internet or any other means, disseminates false or misleading information, news or rumours of a kind to provide false or misleading indications concerning financial instruments shall be liable to an administrative penalty ranging from 20,000 to 5,000,000 euros (EUR).” [1] 21 .     According to the IT Office, the agreement to amend the equity swap had been concluded or was in the process of being concluded before the press releases of 24   August 2005 were issued, and accordingly it was abnormal that they had contained no mention of it. The applicants were invited to submit their defence. 22.     The IT Office then transmitted the file to the CONSOB’s Administrative Sanctions Directorate ( ufficio sanzioni amministrative – hereafter, “the Directorate”), accompanied by a report ( relazione istruttoria ) dated 13   September 2006, which set out the evidence against the accused and their arguments in reply. According to that report, the arguments submitted in their defence by the applicants were not such as to enable the file to be closed. 23 .     The Directorate communicated this report to the applicants and invited them to submit in writing, within a thirty-day period that would expire on 23 October 2006, those arguments that they considered necessary for their defence. In the meantime, the IT Office continued to examine the applicants’ case, by obtaining oral statements and analysing the documents received on 7   July 2006 from Merrill Lynch International Ltd. On 19   October 2006 it transmitted a “supplementary note” to the Directorate in which it stated that the new documents examined by it were not such as to alter its conclusions. On 26 October 2006 the applicants received a copy of the supplementary note of 19   October 2006 and its appendices; they were given a further thirty-day deadline within which to submit any comments. 24.     Without communicating it to the applicants, the Directorate presented its report (dated 19 January 2007 and containing its conclusions) to the Commission – the CONSOB proper –, that is, to the body responsible for deciding on possible penalties. At the relevant time the Commission was made up of a chairman and four members, appointed by the President of the Republic on a proposal ( su proposta ) from the President of the Council of Ministers. Their term of office was for five years and could be renewed only once. 25 .     By resolution no. 15760 of 9 February 2007, the CONSOB imposed the following administrative fines on the applicants: -           EUR 5,000,000   in respect of Mr   Gabetti, -           EUR 3,000,000   in respect of Mr Grande Stevens, -           EUR 500,000   in respect of Mr   Marrone, -           EUR 4,500,000   in respect of the company Exor, -           EUR 3,000,000   in respect of the company Giovanni Agnelli. 26 .     Mr Gabetti, Mr Grande Stevens and Mr Marrone were banned from administering, managing or supervising listed companies for periods of six, four and two months respectively. 27 .     The CONSOB held, in particular, that the file showed that on 24   August 2005, date of the impugned press releases, the plans to maintain a 30% stake in FIAT’s capital on the basis of renegotiation of the equity swap contract with Merrill Lynch International Ltd had already been studied and were being put in place. It followed that the press releases falsely represented ( rappresentazione falsa ) the situation at the time. The CONSOB also emphasised the positions held by the persons concerned, the “objective gravity” of the offence and the existence of malicious intent. C.     Application to the appeal court to have the penalties set aside 28 .     The applicants applied to the Turin Court of Appeal seeking to have these penalties set aside. They alleged, inter alia , that the CONSOB’s rules were illegal, since, contrary to the requirements of Article   187 septies of Legislative Decree no. 58 of 1998 (see paragraph 57 below), they did not comply with the principle of an adversarial examination of the case. 29 .     Mr Grande Stevens further noted that the CONSOB had accused and punished him for being involved in publication of the press release of 24   August 2005 as the executive director of Exor. Before the CONSOB, he had argued unsuccessfully that he did not have that role and that he was merely a lawyer and consultant for the Agnelli group. Before the appeal court, Mr Grande Stevens maintained that, since he was not an executive director, he could not have taken part in the decision to publish the impugned press release. In pleadings of 25 September 2007, Mr   Grande Stevens requested that, should the appeal court consider the documents placed in the case file to be insufficient or unusable, it summon witnesses for questioning “on the facts set out in the above-mentioned documents”. He did not indicate clearly in those pleadings either the names of those witnesses or the circumstances in respect of which they were to give evidence. In pleadings of the same date, Mr Marrone named two witnesses whose statements would prove that he had not taken part in drafting the press releases, and stated that the appeal court could, if necessary ( ove   occorresse ), question them. 30 .     In judgments deposited with the registry on 23   January 2008, the Turin Court of Appeal reduced the administrative fines imposed by the CONSOB in respect of certain of the applicants, as follows: -   EUR 600,000   in respect of Giovanni Agnelli s.a.a.; - EUR 1,000,000   in respect of Exor s.p.a.; - EUR 1,200,000   in respect of Mr Gabetti. The heading of the judgments delivered in respect of Mr Gabetti, Mr   Marrone and Exor S.p.a. indicated that the court of appeal had met in private ( riunita in camera di consiglio ). The “procedure” part of the judgments issued in respect of Mr Grande Stevens and Giovanni Agnelli & C. S.a.s. mentioned that the parties had been summoned to the deliberations ( disposta la comparizione delle parti in camera di consiglio ). 31 .     The length of the ban on assuming responsibility for the administration, management or supervision of companies listed on the stock exchange was reduced from six to four months in respect of Mr Gabetti. 32.     The court of appeal dismissed the applicants’ other complaints in their entirety. It noted, inter alia , that even after the file had been transmitted to the Directorate, the IT Office had been entitled to continue its investigative activities, as the 210-day deadline provided for the CONSOB’s deliberations had not been binding. Furthermore, the adversarial principle was complied with if, as in the present case, those charged had been informed of the new evidence obtained by the IT Office and had had an opportunity to submit their replies. 33 .     The court of appeal also noted that it was true that the CONSOB had both imposed the penalties provided for by Article 187 ter of Legislative Decree no. 58 of 1998 and reported the case to the prosecuting authorities, alleging that the criminal offence described in Article 185 § 1 of the same decree had been committed. Under the terms of this provision, “Anyone who disseminates false information, carries out simulated transactions or uses other ploys ( artifizi ) which are objectively capable of triggering a significant change in the value of financial instruments shall be punishable by between one and six years’ imprisonment and a fine of 20,000 to 5,000,000 euros.” 34 .     According to the court of appeal, those two provisions had as their subject-matter the same conduct (the “dissemination of false information”) and pursued the same aim (to prevent market manipulation), but differed with regard to the situation of risk alleged to have been generated by this conduct: in respect of Article   187 ter , it was sufficient in itself to have given false or misleading indications concerning financial instruments, while Article 185 further required that that information had been such as to trigger a significant change in the price of the instruments in question. As the Constitutional Court had indicated in its order no.   409 of 12   November 1991, it was open to the legislature to punish illegal conduct both by a pecuniary administrative sanction and by criminal penalties. In addition, Article 14 of Directive 2003/6/EC (see paragraph 60 below), which invited the member States of the European Union to apply administrative sanctions against persons responsible for manipulating the market, contained in turn the phrase “without prejudice to the right of Member States to impose criminal sanctions”. 35 .     On the merits, the court of appeal observed that it was clear from the case file that the renegotiation of the equity swap had been examined in minute detail at the relevant date and that the conclusion reached by the CONSOB (namely, that this plan already existed one month prior to 24   August 2005) had been reasonable in the light of the established facts and the conduct of the persons concerned. 36 .     As to Mr Grande Stevens, it was true that he was not an executive director of Exor s.p.a. Nonetheless, the administrative offence punishable under Article 187 ter of Legislative Decree no.   58 of 1998 could be committed by “anyone”, and therefore by a person in any capacity whatsoever; Mr Grande Stevens had indeed participated in the decision-making process which had led to publication of the press release in his capacity as a lawyer consulted by the applicant companies. D.     Appeal on points of law 37 .     The applicants appealed on points of law. In the third and fourth grounds of their points of appeal, they alleged, inter alia , that there had been a breach of the principles of a fair hearing, enshrined in Article 111 of the Constitution, because, in particular: the investigative phase of the CONSOB   proceedings had not been adversarial in nature; there had been a failure to transmit the Directorate’s report to the accused; in the applicants’ view, it had been impossible to file pleadings with or be heard in person by the Commission; the IT Office had continued its investigation and transmitted a supplementary note after expiry of the time-limit set for that purpose. 38 .     By judgments of 23 June 2009, the text of which was deposited with the registry on 30   September 2009, the Court of Cassation dismissed their appeals on points of law. It considered, in particular, that the principle of an adversarial examination of the case had been complied with in the proceedings before the CONSOB, noting that the latter had indicated to the applicants the acts with which they were charged and taken account of their respective defence submissions. The fact that the applicants had not been questioned and that they had not received the Directorate’s conclusions had not been in breach of that principle, since the constitutional provisions regarding a fair hearing and the right of defence were applicable only to judicial proceedings, and not to proceedings to impose administrative sanctions. E.     The criminal proceedings against the applicants 39 .     Under Legislative Decree no. 58 of 1998, the applicants’ impugned conduct could be the subject-matter not only of an administrative sanction, imposed by the CONSOB, but also of the criminal penalties provided for in Article   185 § 1, cited in paragraph 33 above. 40 .     On 7 November 2008 the applicants were committed for trial before the Turin District Court. They were accused of having stated, in the press releases of 24 August 2005, that Exor wished to remain FIAT’s reference shareholder and that it had neither initiated nor examined initiatives with regard to the expiry of the financing contract, although the agreement amending the equity swap had already been examined and concluded, information that had been withheld in order to avoid a probable fall in the FIAT share price. 41.     CONSOB applied to be joined to the proceedings as a civil party, a possibility open to it under Article 187 undecies of Legislative Decree no.   58 of 1998. 42 .     After 30 September 2009, the date on which the judgment dismissing the applicants’ appeal on points of law against the penalties imposed by the CONSOB was deposited with the registry (see paragraph 38 above), the applicants requested that the criminal proceedings against them be discontinued, by virtue of the non bis in idem rule. In particular, at the hearing of 7 January 2010, they argued that the relevant provisions of Legislative Decree no.   58 of 1998 and Article 649 of the Code of Criminal Procedure (“the CCP” - see paragraph 59 below) were unconstitutional, on account of their alleged incompatibility with Article 4 of Protocol No. 7. 43.     The representative of the prosecuting authorities opposed this objection, alleging that “double proceedings” (administrative and criminal) were imposed by Article 14 of Directive 2003/6/EC of 28 January 2003 (see paragraph 60 below), which the Italian legislature had transposed by enacting Articles 185 and 187 ter of Legislative Decree no. 58 of 1998. 44.     The Turin District Court did not immediately rule on the ancillary question of constitutionality raised by the defence. It ordered an expert report describing the fluctuations in FIAT shares between December 2004 and April 2005 and evaluating the effects of the press releases of 24   August 2005 and the information made public on 15 September 2005. 45.     By a judgment of 21 December 2010, the text of which was deposited with the registry on 18 March 2011, the Turin District Court acquitted Mr Marrone on the ground that he had not been involved in the publication of the press releases, and also acquitted the other applicants on the ground that it had not been proven that their conduct had been such as to trigger a significant change in the financial markets. It noted that the fact that the press releases contained false information had already been punished by the administrative body. In the court’s view, the applicants’ impugned conduct had, probably, been aimed at concealing the renegotiation of the equity swap contract from the CONSOB, and not at increasing FIAT’s share price. 46.     The court held that the ancillary question of constitutionality raised by the applicants was manifestly ill-founded. It noted that Italian law (section   9 of Law no. 689 of 1981) prohibited “double proceedings” ( doppio giudizio ), criminal and administrative, in respect of the “same act”. However, Articles   185 and 187 ter of Legislative Decree no. 58 of 1998 did not punish the same act: only the criminal provision (Article 185) required that the conduct be such as to cause a significant change in the value of financial instruments (it referred to judgment no.   15199 of the Court of Cassation (Sixth Section), of 16   March 2006). In addition, application of the criminal provision required the existence of malicious intent, while the administrative provision was applicable as soon as culpable conduct was established. Moreover, the criminal proceedings which had followed the imposition of the financial penalty provided for by Article 187 ter of Legislative Decree no.   58 of 1998 were authorised by Article 14 of Directive   2003/6/EC. 47.     As to the case-law of the Court cited by the applicants ( Gradinger v.   Austria (23 October 1995, Series A no. 328-C), Sergey Zolotukhin v.   Russia [GC], no. 14939/03, ECHR 2009), Maresti v.   Croatia (no.   55759/07, 25   June 2009) and Ruotsalainen v.   Finland (no.   13079/03, 16   June 2009)), it was not relevant to this case, since it concerned cases where a single act had been punished by criminal and administrative penalties and where the latter had a punitive element and could include a custodial sentence or (as in the Ruotsalainen case) were for a sum higher than the criminal fine. 48.     The public prosecutor’s office appealed on points of law, alleging that the offence with which the applicants had been charged was one “of danger” ( reato di pericolo ) and not “of damage” ( reato di danno ). It could therefore be committed even in the absence of damage having been sustained by the shareholders. 49.     On 20 June 2012 the Court of Cassation allowed in part the prosecuting authorities’ appeal on points of law and quashed the acquittal of the companies Giovanni Agnelli and Exor, and those of Mr Grande Stevens and Mr Gabetti. However, it upheld the acquittal of Mr Marrone, given that he had not taken part in the impugned conduct. 50.     By a judgment of 28 February 2013, the Turin Court of Appeal convicted Mr Gabetti and Mr Grande Stevens of the offence set out in Article 185 § 1 of Legislative Decree no. 58 of 1998, considering it highly probable that, had the false information included in the press release of 24   August 2005 not been issued, the value of FIAT’s shares would have fallen much more sharply. However, it acquitted the companies Exor and Giovanni Agnelli, holding that no criminal acts could be imputed to them. 51.     The court of appeal held that there was no appearance of a violation of the ne bis in idem principle, thus endorsing the main thrust of the Turin District Court’s reasoning. 52 .     According to the information provided by the Government on 7 June 2013, Mr Gabetti and Mr Grande Stevens appealed on points of law against that judgment, and the proceedings were still pending at that date. In their appeals, these two applicants relied on a violation of the ne bis in idem principle and asked that an ancillary question of constitutionality be raised in respect of Article 649 of the Code of Criminal Procedure. ... THE LAW ... II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 87.     The applicants alleged that the proceedings before the CONSOB had not been fair, and complained that that body lacked impartiality and independence. They relied on Article 6 of the Convention, the relevant parts of which read: “1.     In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3.     Everyone charged with a criminal offence has the following minimum rights: (a)     to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b)     to have adequate time and facilities for the preparation of his defence; (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...” 88.     The Government contested the applicants’ position. A.     Admissibility 1.     Whether Article 6 of the Convention applies in its criminal head (a)     The parties’ submissions i.     The Government 89.     The Government contended that the proceedings before the CONSOB did not relate to a “criminal charge” against the applicants. They noted that the offence prescribed by Article 187 ter of Legislative Decree no.   58 of 1998 was clearly classified as “administrative” under both domestic and European law; [the corresponding penalty] could be imposed by an administrative body at the close of administrative proceedings. 90 .     As to the nature of the offence, it included any conduct, even that of mere negligence, which was likely to provide erroneous signals or information to investors, without it being necessary that this be likely to trigger a significant change in the financial markets. It protected investors against any potential risk that might influence their choices and thus referred to interests other than those usually protected by criminal law. Finally, the sanctions that could be imposed affected only the assets of the person concerned and/or his ability to exercise managerial functions, and under no circumstances could they lead to a custodial sentence, even in the event of non-payment. They were not mentioned in an individual’s criminal record and usually concerned professional operators in the financial system rather than the population as a whole. 91 .     Moreover, the amount of the fines had been proportionate to the guilty party’s resources and financial strength; the present case concerned a financial operation which was aimed at gaining control of one of the largest vehicle manufactures in the world, and had cost more than EUR   500,000,000. In addition, the fines, the possible confiscation of the assets used to commit the office and the prohibition on exercising managerial functions were essentially intended to restore market confidence and reassure investors, by targeting the elements which had made it possible for the administrative offence to be committed (on this point, they also referred to the aims pursued by Directive 2003/6/EC). They were intended to make reparation and compensate for financial damage, and to prevent the guilty party from benefiting from the illegal activities. Furthermore, in the case of Spector Photo Group ( Spector Photo Group NV v Commissie voor het Bank, Financie-en Assurantiewezen , C-45/08., 23   December 2009), the European Court of Justice (ECJ) had accepted the coexistence, in this sector, of administrative and criminal sanctions. ii.     The applicants 92 .     The applicants considered that although they were classified as “administrative” in domestic law, the sanctions imposed by the CONSOB ought to be considered as “criminal”, in the autonomous meaning of this concept in the Court’s case-law. The ECJ’s judgment in the case of Spector Photo Group , cited by the Government, did not take the opposite line, but merely stated that if a Member State had introduced the possibility of a criminal financial sanction, it was not necessary, for the purposes of assessing whether the administrative sanction was effective, proportionate and dissuasive, to take account of the level of that sanction. Moreover, in its judgment of 26   February 2013 in case C-617/10 ( Åklagaren v.   Hans Åkerberg Fransson ), the ECJ had confirmed the following principles: (a) the applicability of European Union law entails applicability of the fundamental rights guaranteed by the Charter; (b) Article 50 of the Charter (guaranteeing the ne bis in idem principle) presupposes that the measures which are adopted against a defendant are of a criminal nature; (c) for the purpose of assessing whether tax penalties are criminal in nature, it is necessary to consider the legal classification of the offence under national law, the very nature of the offence, and the degree of severity of the penalty that the person concerned is liable to incur. 93.     In the present case, the seriousness of the sanctions was clear, since the maximum sum that could be imposed was EUR 5,000,000. This primary sanction was supplemented by secondary penalties, such as temporary loss of entitlement (of up to three years) to hold administrative, managerial or supervisory roles in listed companies, temporary suspension (of up to three years) from professional bodies, and confiscation of the proceeds of the office and the assets used to commit it. Referring to the Court’s case-law in this area (in particular Dubus   S.A. v. France , no. 5242/04, 11 June 2009; Messier v. France , no.   25041/07, 30   June 2001; and Menarini Diagnostics S.r.l. v. Italy , no.   43509/08, 27   September 2011), the applicants concluded that Article 6 was applicable in its criminal limb. (b)     The Court’s assessment 94.     The Court reiterates its established case-law that, in determining the existence of a “criminal charge”, it is necessary to have regard to three factors: the legal classification of the measure in question in national law, the very nature of the measure, and the nature and degree of severity of the “penalty” (see Engel and Others v. the Netherlands , 8 June 1976, §   82, Series A no.   22). Furthermore, these criteria are alternative and not cumulative ones: for Article 6 to apply in respect of the words “criminal charge”, it suffices that the offence in question should by its nature be “criminal” from the point of view of the Convention, or should have made the person concerned liable to a sanction which, by virtue of its nature and degree of severity, belongs in general to the “criminal” sphere. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a “criminal charge” ( see Jussila v. Finland   [GC], no.   73053/01, §§ 30 and 31, ECHR 2006-XIII, and Zaicevs v.   Latvia , no.   65022/01, § 31, ECHR 2007-IX (extracts)). 95.     In the present case, the Court first observes that the market manipulations with which the applicants were accused did not constitute a criminal offence in Italian law. Such conduct was in effect punished by a penalty which was classified as “administrative” by Article   187 ter § 1 of Legislative Decree no. 58 of 1998 (see paragraph 20 above). However, this was not decisive for the purposes of the applicability of Article 6 of the Convention in its criminal head, as the indications furnished by the domestic law have only a relative value (see Öztürk v. Germany , 21   February 1984, §   52, Series A no. 73, and Menarini Diagnostics S.r.l. , cited above, § 39). 96.     As to the nature of the offence, it appears that the provisions which the applicants were accused of breaching were intended to guarantee the integrity of the financial markets and to maintain public confidence in the security of transactions. The Court reiterates that the CONSOB, an independent administrative body, has the task of protecting investors and ensuring the effectiveness, transparency and development of the stock markets (see paragraph 9 above). These are general interests of society, usually protected by criminal law (see, mutatis mutandis , Menarini Diagnostics   S.r.l. , cited above, § 40; see also Société Stenuit v. France , report of the European Commission of Human Rights, 30   May 1991, § 62, Series A no.   232 ‑ A). In addition, the Court considers that the fines imposed were essentially intended to punish, in order to prevent repeat offending. They had therefore been based on rules whose purpose was both deterrent, namely to dissuade the applicants from resuming the activity in question, and punitive, since they punished unlawful conduct (see, mutatis mutandis , Jussila , cited above, §   38). Thus, they were not solely intended, as the Government claimed (see paragraph 91 above), to repair damage of a financial nature. In this respect, it should be noted that the penalties were imposed by the CONSOB on the basis of the gravity of the impugned conduct, and not of the harm caused to investors. 97 .     As to the nature and severity of the penalty which was “likely to be imposed” on the applicants (see Ezeh and Connors v. the United Kingdom   [GC], nos. 39665/98 and 40086/98, § 120, ECHR 2003-X), the Court, like the Government (see paragraph 90 above), notes that the fines in question could not be replaced by a custodial sentence in the event of non ‑ payment (see, a contrario , Anghel v. Romania , no. 28183/03, §   52, 4   October 2007). However, the fine which the CONSOB was entitled to impose could go up to EUR 5,000,000   (see paragraph 20 above), and this ordinary maximum amount could, in certain circumstances, be tripled or fixed at ten times the proceeds or profit obtained through the unlawful conduct (see paragraph 53 above). Imposition of the above-mentioned pecuniary administrative sanctions entails the temporary loss of their honour for the representatives of the companies involved, and, if the latter are listed on the stock exchange, their representatives are temporarily forbidden from administering, managing or supervising listed companies for periods ranging from two months to three years. The CONSOB may also prohibit listed companies, management companies and auditing companies from engaging the services of the offender, for a maximum period of three years, and request professional associations to suspend, on a temporary basis, the individual’s right to carry out his or her professional activity (see paragraph 54 above). Lastly, the imposition of financial administrative sanctions entails confiscation of the proceeds or profits of the unlawful conduct and of the assets which made it possible (see paragraph 56 above). 98 .     It is true that in the present case the maximum penalties were not imposed, the Turin Court of Appeal having reduced some of the fines imposed by the CONSOB (see paragraph 30 above), and no confiscations having been ordered. However, the criminal connotation of proceedings depends on the degree of severity of the penalty to which the person concerned is a priori liable (see Engel and Others , cited above, § 82), and not the severity of the penalty ultimately imposed (see Dubus S.A. , cited above, §   37). Furthermore, in the present case the applicants had ultimately received fines ranging from EUR 500,000 to 3,000,000, and Mr Gabetti, Mr   Grande Stevens and Mr Marrone had been prohibited from administering, managing or supervising listed companies for periods ranging from two to four months (see paragraphs 25-26 and 30-31 above). This last penalty was such as to compromise the integrity of the persons concerned (see, mutatis mutandis , Dubus S.A. , loc. ult. cit. ), and, given their amount, the fines were of undeniable severity and had significant financial implications for the applicants. 99.     In the light of the above, and taking account of the severity of the fines imposed and of those to which the applicants were liable, the Court considers that the penalties in question, though their severity, were criminal in nature (see, mutatis mutandis , Öztürk , cited above, § 54, and, a contrario , Inocêncio v.   Portugal (dec.), no. 43862/98, ECHR 2001 ‑ I). 100.     Moreover, the Court also reiterates that, with regard to certain French administrative authorities which have jurisdiction in economic and financial law and enjoy sentencing powers, it has held that the criminal limb of Article   6 applied, in particular, with regard to the Disciplinary Offences (Budget and Finance) Court ( Guisset v. France , no. 33933/96, §   59, ECHR   2000 ‑ IX), the Financial Markets Board ( Didier v. France   (dec.), no.   58188/00, 27   August 2002), the Competition Commission ( Lilly France S.A. v. France (dec.), no. 53892/00, 3 December 2002), the sanctions committee of the financial market supervisory authorities ( Messier v. France (dec.), no.   25041/07, 19 May 2009), and the Banking Commission ( Dubus S.A. , cited above, §   38). The same finding was made in respect of the Italian regulatory authority responsible for competition and the market (the AGCM – Autorità Garante della Concorrenza e del Mercato ; see Menarini Diagnostics S.r.l. , cited above, § 44). 101 .     After noting and giving due weight to the various aspects of the case, the Court considers that the fines imposed on the applicants were criminal in nature, with the result that Article 6 § 1 is applicable in this case under its criminal head (see, mutatis mutandis , Menarini Diagnostics S.r.l. , loc. ult. cit. ). ... B.     Merits 1.     Whether the proceedings before the CONSOB were fair (a)     The parties’ submissions i.     The applicants 106.     The applicants alleged that the proceedings before the CONSOB had been essentially in written form, that no public hearing had been scheduled and that the rights of the defence were not respected. The Court of Cassation itself had acknowledged that the guarantees of a fair trial and protection of the rights of the defence (Articles 111 and 24 of the Constitution) did not apply to administrative proceedings (see paragraph 38 above). 107.     The applicants submitted that CONSOB Resolutions no.   12697 of 2   August 2000 and no. 15086 of 21 June 2005 had de facto eliminated the principle of adversarial proceedings, which was, however, a requirement under Article187 septies of Legislative Decree no. 58 of 1998... As in the present case, those resolutions permitted non-communication to the defendant of the Directorate’s conclusions, which then formed the basis of the decision taken by the Commission; in addition, the latter did not receive the pleadings submitted by the defendants during the investigation phase. Furthermore, the Commission ruled without hearing the defendants and without a public hearing, a fact which, in the present case, had prevented the applicants from addressing the