Contents
Judgment of the Court (Fourth Chamber)9 September 2021note(Reference for a preliminary ruling — Company law — Takeover bids — Directive 2004/25/EC — Article 5 — Mandatory bid — Article 4 — Supervisory authority — Final decision making a finding of infringement of the obligation to submit a takeover bid — Binding effect of that decision in subsequent proceedings for an administrative penal sanction initiated by the same authority — Principle of effectiveness of EU law — General principles of EU law — Rights of the defence — Charter of Fundamental Rights of the European Union — Articles 47 and 48 — Right to silence — Presumption of innocence — Access to an independent and impartial tribunal)In Case C‑546/18,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesverwaltungsgericht (Federal Administrative Court, Austria), made by decision of 16 August 2018, received at the Court on 23 August 2018, in the proceedingsFN,GM,Adler Real Estate AG,HL,Petrus Advisers LLPvÜbernahmekommission,THE COURT (Fourth Chamber),composed of M. Vilaras, President of the Chamber, N. Piçarra (Rapporteur), D. Šváby, S. Rodin and K. Jürimäe, Judges,Advocate General: M. Bobek,Registrar: M. Krausenböck, Administrator,having regard to the written procedure,having considered the observations submitted on behalf of:– GM, by M. Gall and W. Eigner, Rechtsanwälte,– Adler Real Estate AG, by S. Hödl, Rechtsanwalt,– HL, by C. Diregger, Rechtsanwalt,– the Übernahmekommission, by M. Winner, acting as Agent,– the European Commission, by G. Braun, H. Støvlbæk and H. Krämer, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 18 March 2021,gives the following
Judgment
1This request for a preliminary ruling concerns the interpretation of Articles 4 and 17 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ 2004 L 142, p. 12), as amended by Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 (OJ 2014 L 173, p. 190), read in the light of the principle of effectiveness, as well as the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2The reference has been made in proceedings between FN, GM, Adler Real Estate AG (‘Adler’), HL and Petrus Advisers LLP (‘Petrus’) and the Übernahmekommission (Takeover Commission, Austria; ‘the Takeover Commission’) concerning the lawfulness of the penalties imposed on FN, GM and HL for breach of the obligation to submit a public takeover bid.
Legal background
European Union law
3Recitals 5, 7 and 8 of Directive 2004/25 state:(5) Each Member State should designate an authority or authorities to supervise those aspects of bids that are governed by this Directive and to ensure that parties to takeover bids comply with the rules made pursuant to this Directive. All those authorities should cooperate with one another.…(7) Self-regulatory bodies should be able to exercise supervision.(8) In accordance with general principles of [EU] law, and in particular the right to a fair hearing, decisions of a supervisory authority should in appropriate circumstances be susceptible to review by an independent court or tribunal. However, Member States should be left to determine whether rights are to be made available which may be asserted in administrative or judicial proceedings, either in proceedings against a supervisory authority or in proceedings between parties to a bid.’
4Article 4 of that directive, which is headed ‘Supervisory authority and applicable law’, provides in paragraphs 1, 5 and 6:1. Member States shall designate the authority or authorities competent to supervise bids for the purposes of the rules which they make or introduce pursuant to this Directive. The authorities thus designated shall be either public authorities, associations or private bodies recognised by national law or by public authorities expressly empowered for that purpose by national law. Member States shall inform the [European] Commission of those designations, specifying any divisions of functions that may be made. They shall ensure that those authorities exercise their functions impartially and independently of all parties to a bid.…5. The supervisory authorities shall be vested with all the powers necessary for the purpose of carrying out their duties, including that of ensuring that the parties to a bid comply with the rules made or introduced pursuant to this Directive.…6. This Directive shall not affect the power of the Member States to designate judicial or other authorities responsible for dealing with disputes and for deciding on irregularities committed in the course of bids or the power of Member States to regulate whether and under which circumstances parties to a bid are entitled to bring administrative or judicial proceedings. In particular, this Directive shall not affect the power which courts may have in a Member State to decline to hear legal proceedings and to decide whether or not such proceedings affect the outcome of a bid. This Directive shall not affect the power of the Member States to determine the legal position concerning the liability of supervisory authorities or concerning litigation between the parties to a bid.’
5Article 5 of that directive, which is headed ‘Protection of minority shareholders, the mandatory bid and the equitable price’, provides in paragraph 1:‘Where a natural or legal person, as a result of his/her own acquisition or the acquisition by persons acting in concert with him/her, holds securities of a company as referred to in Article 1(1) which, added to any existing holdings of those securities of his/hers and the holdings of those securities of persons acting in concert with him/her, directly or indirectly give him/her a specified percentage of voting rights in that company, giving him/her control of that company, Member States shall ensure that such a person is required to make a bid as a means of protecting the minority shareholders of that company. …’
6Article 17 of that directive, which is headed ‘Sanctions’, provides:‘Member States shall determine the sanctions to be imposed for infringement of the national measures adopted pursuant to this Directive and shall take all necessary steps to ensure that they are put into effect. The sanctions thus provided for shall be effective, proportionate and dissuasive. …’
Austrian law
The ÜbG
7Directive 2004/25 was transposed into Austrian law by the Bundesgesetz betreffend Übernahmeangebote (Federal law on takeover bids) (BGBl. I, No 127/1998; ‘the ÜbG’).
8Paragraph 1(6) of that law defines ‘Legal entities acting in concert’ as meaning ‘natural or legal persons who cooperate with the offeror on the basis of an agreement in order to acquire or exert control over the offeree company, in particular by means of coordination of the voting rights, or cooperate with the offeree company on the basis of an agreement in order to prevent the successful outcome of a takeover bid. If a legal entity holds an indirect or direct controlling interest (Paragraph 22(2) and (3)) in one or more other legal entities, there is a presumption that all those legal entities act in concert …’.
9Paragraph 22(1) of that law provides:‘Anyone who directly or indirectly obtains a controlling interest in an offeree company shall immediately report this fact to the [Takeover Commission], and must notify a bid for all of the securities of the offeree company in accordance with the provisions of this Federal Law within 20 stock-market working days of obtaining a controlling interest.’
10Pursuant to point 1 of Paragraph 22a of the ÜbG, the ‘obligation to make a bid pursuant to Paragraph 22(1) shall apply … when a group of parties acting in concert is created that jointly acquires a controlling interest’.
11Paragraph 23 of the ÜbG, which is headed ‘Aggregation of shareholdings and extension of offeror’s obligations’, provides in its first subparagraph that, for the purposes of applying Paragraphs 22 to 22b, ‘persons acting in concert’, within the meaning of Paragraph 1(6) of the ÜbG, must have their voting rights reciprocally attributed.
12Paragraph 28(3) and (4) of that law defines the Takeover Commission as a collegiate authority whose members, appointed for a renewable term of five years, cannot be removed from office or given instructions as regards the performance of their duties. Subparagraphs 5 and 6 of that paragraph make provision, respectively, as to bars to appointment as a member of the commission and early termination of members’ duties.
13Paragraph 30(2) of the law provides that the Allgemeines Verwaltungsverfahrensgesetz (General Law on administrative proceedings; ‘the AVG’) applies to proceedings before the Takeover Commission.
14Paragraph 33 of the same law, which is headed ‘Specific provisions concerning mandatory bids, pricing and civil sanctions’ provides, in subparagraph 1, point 2, that the Takeover Commission ‘may, on its own initiative or at the request of a party, determine with regard to the offeror, any legal entities acting in concert with the offeror (Paragraph 1(6)), the offeree company and the shareholders of that company, whether … a mandatory bid has wrongfully not been made or ordered, or has not been duly notified (Paragraphs 22 to 25)’.
15Under Paragraph 30a and Paragraph 35(3) of the ÜbG, a decision of the Takeover Commission made at the conclusion of proceedings for a finding of infringement can be challenged by way of an action before the Oberster Gerichtshof (Supreme Court, Austria), whereas a decision made at the conclusion of proceedings for an administrative penal sanction can be challenged before the Bundesverwaltungsgericht (Federal Administrative Court, Austria).
The AVG
16Paragraph 38 of the AVG provides:‘Unless otherwise provided by law, the authority is entitled to determine preliminary issues arising in the investigative procedure which, as main issues, would be for other administrative authorities or for the courts to decide, on the basis of its own assessment of the relevant circumstances, and to base its decision on that assessment. However, it may also suspend the proceedings pending a final determination of the preliminary issue, if that issue is already the subject of ongoing proceedings before the competent administrative authority or the competent court, or if such proceedings are brought at the same time.’
The main proceedings and the questions referred for a preliminary ruling
17By decision of 22 November 2016, the Takeover Commission, designated pursuant to Article 4 of Directive 2004/25 as the authority competent to supervise bids, determined that Adler, Petrus and GM, as well as two other companies (Mountain Peak Trading Limited LLP and Westgrund AG) had, in autumn 2015, ‘acted in concert’ within the meaning of Paragraph 1(6) of the ÜbG, so as to incite Conwert Immobilien SE (‘Conwert’) to enter into a transaction. It found that that transaction led to a significant change in the structure of the undertaking, resulting in a significant increase in the shareholding of the principal shareholder. According to the Commission, the voting rights attaching to the shares held in Conwert by Adler, Petrus and GM ought, pursuant to Paragraph 23 of the ÜbG, to have been reciprocally attributed as from 29 September 2015, when the agreement to carry out the transaction was partly implemented. On that date, those parties held 31.36% of the voting rights in Conwert, giving them a controlling interest in that company within the meaning of Paragraph 22 of the ÜbG. The Commission took the view that such an acquisition obliged the parties in question to make a takeover bid within 20 stock-market working days of that date.
18By order of 1 March 2017, the Oberster Gerichtshof (Supreme Court) dismissed an action against the decision of 22 November 2016, which thus became final.
19Subsequently, the Takeover Commission initiated proceedings for the imposition of administrative penal sanctions on GM, HL and FN, the latter two in their capacities as board member of Adler and director of Petrus, respectively, on the date of the infringement found to have been committed.
20By decisions of 29 January 2018, the Takeover Commission imposed fines on GM, HL and FN and determined that Adler and Petrus were secondarily liable for the fines imposed on HL and FN. Those decisions were based on findings of fact set out in the decision of 22 November 2016, in particular the finding that, on the basis of an agreement made on 29 September 2015, the parties concerned had ‘acted in concert’ within the meaning of Paragraph 1(6) of the ÜbG. The Commission found that, by failing to submit a mandatory takeover bid to the Takeover Commission within the prescribed time limit, GM, HL, and FN had infringed Paragraph 22a(1) and Paragraph 22(1) of the ÜbG, read together.
21The Bundesverwaltungsgericht (Federal Administrative Court), before which actions against the Takeover Commission’s decisions of 29 January 2018 have been brought, considers that, before it can give judgment in those actions, it must resolve its doubts as to the compatibility with EU law of the national administrative practice on which the Takeover Commission based its decisions to impose administrative penal sanctions.
22That court observes that, under Austrian law, in particular Paragraph 38 of the AVG, a decision making a finding of infringement, such as the decision of 22 November 2016, once final, is binding not only on the authority which adopted it, but also on other administrative and judicial authorities which may have cause to rule, in other proceedings, on the same factual and legal situation, provided that the parties concerned are the same.
23As regards GM, the referring court considers that the proceedings for a finding of infringement which led to the decision of 22 November 2016 did relate to the same party as the proceedings for an administrative penal sanction.
24As regards HL and FN, on the other hand, the referring court doubts that this is the case. It observes that HL and FN were not ‘parties’ to the declaratory proceedings, but merely acted, respectively, as representatives of Adler and Petrus. HL and FN (as natural persons) only acquired the status of ‘party’ during the proceedings for an administrative penal sanction. Nonetheless, in the course of those proceedings the Takeover Commission took the ‘extended binding effect’ (erweiterte Bindungswirkung) of the decision of 22 November 2016 to include HL and FN within its scope.
25The referring court indicates that it might therefore be inclined to the view that, once a decision such as that of 22 November 2016 becomes final, it has binding effect for the purposes of the subsequent proceedings for an administrative penal sanction, both where the parties to the two sets of proceedings are the same, and where the natural person to whom the subsequent proceedings for an administrative penal sanction relate did not have the status of ‘party’ in the proceedings for a finding of infringement, and was therefore unable to exercise all the rights of a ‘party’, including the right to silence, without prejudice to the possibility of bringing an action before the Oberster Gerichtshof (Supreme Court), in which a person in either of those categories can allege that their procedural rights were infringed in the course of the proceedings for a finding of infringement.
26In that regard, the referring court states that, in accordance with national constitutional case-law, access to an independent tribunal with full jurisdiction to examine matters of law and fact is provided before the Takeover Commission, inasmuch as that commission is an independent authority which can be regarded as a tribunal within the meaning of Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. Accordingly, the fact that the jurisdiction exercised by the Oberster Gerichtshof (Supreme Court), when reviewing a finding of infringement made by the Takeover Commission, is limited to questions of law, is compliant, in the view of the referring court, with the requirements of Article 2 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms.
27The referring court considers, however, that since the Takeover Commission acted pursuant to EU law both in the proceedings for a finding of infringement and the proceedings for an administrative penal sanction, regard must be had to EU law – including the fundamental rights guaranteed by the Charter, and especially Article 47 thereof – in resolving such disputes.
28The referring court questions whether a national practice under which a final decision, taken at the conclusion of proceedings for a finding of infringement, has binding effect in subsequent proceedings for an administrative penal sanction, is compatible with the rights of the defence guaranteed by EU law. Its doubts stem from the fact that the proceedings for a finding of infringement conducted by the Takeover Commission are not criminal in nature, and consequently the parties concerned – even in the case of GM – did not have the benefit of all the safeguards appropriate to criminal proceedings, including, in particular, the presumption of innocence. In the view of the referring court, those doubts are greater still in the case of HL and FN, who did not participate, as parties, to the proceedings for a finding of infringement which preceded the proceedings for an administrative penal sanction.
29Against that background, the referring court asks whether the EU law principle of effectiveness – which, in its view, incorporates the principle that administrative decisions which have become final are not to be disturbed, as well as the principle of res judicata, both of which contribute to legal certainty – nevertheless requires it to apply the rules at issue to persons in the situation of GM and of HL and FN.
30In those circumstances, the Bundesverwaltungsgericht (Federal Administrative Court) decided to stay the proceedings and to seek a preliminary ruling from the Court on the following questions:(1) Do Articles 4 and 17 of Directive [2004/25] – read in the light of the principle of effectiveness under EU law – preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a natural person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is not given binding effect in the context of proceedings for an administrative penal sanction subsequently conducted by that supervisory authority against that same person, as a consequence of which that person once again has all the factual and legal pleas and evidence available to him or her to challenge the breach of law established in the decision that already has the force of res judicata?(2) Do Articles 4 and 17 of Directive [2004/25] – read in the light of the principle of effectiveness under EU law – preclude an interpretation according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a legal person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is not given binding effect in the context of proceedings for an administrative penal sanction subsequently conducted by that supervisory authority against the body authorised to represent that legal person, as a consequence of which that legal person (the body) once again has all the factual and legal pleas and evidence available to it to challenge the breach of law established in the decision that already has the force of res judicata?(3) (If Question 1 is answered in the negative) Does Article 47 of the [Charter] preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a natural person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is given binding effect in the context of administrative-penal proceedings subsequently conducted by that supervisory authority against that same person, with the result that that person is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata?(4) (If Question 2 is answered in the negative) Does Article 47 of the [Charter] preclude a national practice according to which a decision having the force of res judicata taken by the supervisory authority pursuant to Article 4 of Directive [2004/25] by means of which a legal person’s breach of national provisions adopted in implementation of Directive [2004/25] was established is given binding effect in the context of administrative-penal proceedings subsequently conducted by that supervisory authority against the body authorised to represent that legal person, with the result that that person (the body) is prevented from challenging, in law and fact, the breach of law already established with the force of res judicata?’
Consideration of the questions referred
31By its four questions, which should be examined together, the referring court asks, essentially, whether Articles 4 and 17 of Directive 2004/25, read in the light of the rights of the defence guaranteed by EU law, and of Articles 47 and 48 of the Charter, must be interpreted as precluding a practice of a Member State pursuant to which a decision establishing a breach of the provisions of that directive, which has become final, is binding in subsequent proceedings for an administrative penal sanction, in relation not only to a natural person having the status of party in both sets of proceedings, but also to a natural person who was not a party to the proceedings for a finding of infringement by which the breach was established, but simply acted as a member of a representative organ of a legal person which was a party.
32In that regard, it must be borne in mind that Article 4(1) of Directive 2004/25, read in the light of recital 5 thereof, requires Member States to designate an authority or authorities competent to supervise bids for the purposes of the rules which they make or introduce pursuant to that directive, and capable of exercising their functions impartially and independently of all parties to a bid. It is apparent from recital 7 of the directive that it should be possible for such supervision to be exercised by self-regulatory bodies. Furthermore, the opening words of Article 4(5) of the directive provide that the supervisory authorities are to be vested with all the powers necessary for the purpose of carrying out their duties.
33Article 4(6) of Directive 2004/25 acknowledges that the Member States have power, inter alia, to designate judicial or other authorities responsible for dealing with disputes and for deciding on irregularities committed in the course of bids, and to regulate whether and under which circumstances parties to a bid are entitled to bring administrative or judicial proceedings. That provision must be read in the light of recital 8 of the directive, which states that, by virtue in particular of the right to a fair hearing, decisions of a supervisory authority should in appropriate circumstances be susceptible to review by an independent court or tribunal.
34As to Article 17 of Directive 2004/25, it entrusts the Member States with the task of determining the sanctions to be imposed for infringement of the national measures adopted pursuant to that directive and taking all necessary steps to ensure that they are put into effect, stipulating that the sanctions thus provided for are to be effective, proportionate and dissuasive.
35However, Directive 2004/25 does not lay down rules governing the structure of the proceedings conducted by the competent authorities in the event of infringements of the provisions concerning mandatory takeover bids, or the procedure to be followed. Nor does it lay down rules as to the effects that final administrative decisions adopted pursuant to that directive are to have in subsequent proceedings.
36In that regard, it should be observed that, according to settled case-law, in the absence of EU rules on the matter, it is for the national legal order of each Member State to establish procedural rules for actions intended to safeguard the rights of individuals, in accordance with the principle of procedural autonomy, on condition, however, that those rules are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (judgment of 10 March 2021, Konsul Rzeczypospolitej Polskiej w N., C‑949/19, EU:C:2021:186, paragraph 43 and the case-law cited).
37Subject to those two principles, Directive 2004/25 does not, in itself, prevent the Member States from establishing an administrative procedure intended to ensure that the substantive rules laid down by the directive are correctly applied which is divided into two separate stages, the first leading to an administrative decision making an objective finding of infringement of the obligation to make a takeover bid, and the second to a finding of individual liability and the imposition of an administrative penal sanction for the infringement committed.
38Moreover, that directive does not, in principle, preclude a practice of the competent authorities of the Member States under which administrative decisions, having become final, are given binding effect in subsequent proceedings. In that regard, the Court has held that the finality of an administrative decision, which is acquired upon expiry of the reasonable time limits for legal remedies or by exhaustion of those remedies, contributes to legal certainty, which is a fundamental principle of EU law (see, to that effect, judgments of 13 January 2004, Kühne & Heitz, C‑453/00, EU:C:2004:17, paragraph 24, and of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 45).
39Furthermore, as the Advocate General observed, essentially, in point 83 of his Opinion, giving binding effect to administrative decisions which have become final, in subsequent related proceedings, can contribute to the efficiency of the administrative proceedings conducted by the competent authorities, for the purposes both of establishing a failure to comply with the rules of EU law concerning mandatory takeover bids and of imposing a sanction in respect of such failure to comply, and thus to the useful effect of Directive 2004/25.
40However, it is important to ensure that the rights of the parties concerned, as guaranteed by EU law and in particular by the Charter, are not breached at either of the procedural stages referred in paragraph 37 of the present judgment. Indeed, all national proceedings conducted pursuant to Directive 2004/25 must be compatible with those rights (see, by analogy, judgments of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 66, and of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 47).
41In that regard, the field of application of the Charter, in so far as concerns action of the Member States, is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States when they are implementing EU law. That provision confirms the settled case-law of the Court, which states that the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but not outside such situations (judgments of 26 February 2013, Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraphs 17 and 19, and of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 78).
42They are thus applicable in proceedings which, like those at issue before the referring court, are conducted pursuant to national provisions transposing Directive 2004/25.
43Among the rights guaranteed by EU law are, first, respect for the rights of the defence, which, according to a consistent body of case-law, is a general principle of EU law. This principle incorporates the right to be heard, and is applicable where the authorities are minded to adopt a measure which will adversely affect an individual. In accordance with that principle, the addressees of decisions which significantly affect their interests must be placed in a position in which they can effectively make known their views as regards the information on which the authorities intend to base their decision. The authorities of the Member States are subject to that obligation when they take decisions which come within the scope of EU law, even though the EU law applicable does not expressly provide for such a procedural requirement (see, to that effect, judgment of 16 October 2019, Glencore Agriculture Hungary, C‑189/18, EU:C:2019:861, paragraph 39 and the case-law cited).
44Second, among the rights guaranteed by the second paragraph of Article 47 and by Article 48 of the Charter is the right to silence of a natural person who is ‘charged’ within the meaning of the second of those articles. Those provisions apply in proceedings which may lead to the imposition of administrative penal sanctions. Three criteria are relevant in assessing whether penalties are criminal in nature. The first is the legal classification of the offence under national law, the second is the intrinsic nature of the offence, and the third is the degree of severity of the penalty that the person concerned is liable to incur (see, to that effect, judgment of 2 February 2021, Consob, C‑481/19, EU:C:2021:84, paragraph 42).
45It is apparent from that case-law that the right to silence is a generally recognised international standard which lies at the heart of the notion of a fair trial. That right cannot be confined to admissions of wrongdoing or to remarks which directly incriminate the person questioned, but also covers information on questions of fact which may subsequently be used in support of the prosecution and may thus have a bearing on the conviction or the penalty imposed on that person (see, to that effect, judgment of 2 February 2021, Consob, C‑481/19, EU:C:2021:84, paragraphs 38 to 40 and the case-law cited).
46Third, reference should be made to the presumption of innocence, which is enshrined in Article 48 of the Charter. That presumption applies where determinations are made as to objective elements constituting an infringement of EU law, and may lead to the imposition of administrative sanctions of a criminal nature (see, to that effect, judgment of 23 December 2009, Spector Photo Group and Van Raemdonck, C‑45/08, EU:C:2009:806, paragraphs 42 and 44).
47According to the case-law of the Court, while presumptions of fact or of law operate in every legal system, Article 48 of the Charter requires the Member State to remain within certain limits as regards criminal law. More specifically, the presumption of innocence, which is enshrined in that provision, requires the Member States to confine presumptions of fact or law provided for in the criminal law within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence (judgment of 23 December 2009, Spector Photo Group and Van Raemdonck, C‑45/08, EU:C:2009:806, paragraph 43).
48Fourth, the first paragraph of Article 47 of the Charter, which enshrines the right to an effective remedy, states that everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to such a remedy before a tribunal in compliance with the conditions set down by that article. The second paragraph of Article 47 of the Charter provides that everyone is entitled to a fair hearing by an independent and impartial tribunal.
49According to settled case-law, the guarantees of independence and impartiality of the tribunal presuppose rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, that are such as to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it (judgment of 20 April 2021, Repubblika, C‑896/19, EU:C:2021:311, paragraph 53 and the case-law cited).
50The requirement of independence, which is inherent in the task of adjudication, implies above all that the body in question acts as a third party in relation to the authority which adopted the contested decision (see, to that effect, judgments of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 49, and of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 62), and has two aspects.
51The first aspect is a requirement that the body is protected against external intervention or pressure liable to jeopardise the independent judgment of its members as regards proceedings before them (judgments of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 51, and of 19 November 2019, A.K. and Others (Independence of the Disciplinary Chamber of the Supreme Court), C‑585/18, C‑624/18 and C‑625/18, EU:C:2019:982, paragraph 125).
52The second aspect is linked to impartiality and seeks to ensure a level playing field for the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application of the rule of law (judgment of 21 January 2020, Banco de Santander, C‑274/14, EU:C:2020:17, paragraph 61).
53If a decision falling within the scope of EU law has been taken by an authority which does not itself fulfil these conditions of independence and impartiality, and which, therefore, cannot be regarded as a tribunal within the meaning of the second paragraph of Article 47 of the Charter, that provision requires that the decision at issue can be subject to subsequent control by a judicial body that must have power to consider all the questions of fact and law that are relevant to the case before it (see, to that effect, judgments of 6 November 2012, Otis and Others C‑199/11, EU:C:2012:684, paragraphs 46, 47 and 49, and of 16 May 2017, Berlioz Investment Fund, C‑682/15, EU:C:2017:373, paragraph 55).
54Those indications must be borne in mind in determining whether the rights thus guaranteed under EU law preclude binding effect being given, in proceedings for the imposition of an administrative penal sanction in respect of an infringement of the provisions of Directive 2004/25, to an administrative decision, taken at the conclusion of earlier proceedings, which found that the infringement was committed and which has become final. In making that determination, it is necessary to distinguish between the two situations referred to in paragraph 31 of this judgment, namely the situation where the proceedings for an administrative penal sanction relate to persons who were parties to the proceedings for a finding of infringement which led to the adoption of that decision, and the situation where the proceedings for an administrative penal sanction relate to natural persons who were not parties to the proceedings for a finding of infringement, but merely acted as members of a representative organ of a legal person which was a party to those proceedings.
55As a preliminary remark, it must be observed that according to the information given in the order for reference and the answers submitted by the parties to the main proceedings to a question from the Court, the pecuniary administrative sanctions provided for by Austrian law, in relation to persons responsible for an infringement of the provisions of the ÜbG concerning takeover bids range from EUR 5000 to EUR 50000 and can lead to deprivation of liberty where the amount of the pecuniary sanction cannot be recovered. At first glance those sanctions would appear to be criminal in nature, for the purposes of the case-law referred to in paragraph 44 of this judgment. Subject to final determination, by the referring court, of whether the sanctions are in fact criminal in nature, the right to silence and the presumption of innocence, guaranteed by the second paragraph of Article 47 and Article 48 of the Charter, are thus applicable in the main proceedings.
56As regards the first situation referred to in paragraph 54 of this judgment, in order to ensure the efficiency of administrative proceedings conducted by the competent authorities for the purposes of establishing that the rules of EU law concerning mandatory takeover bids have been infringed, and of sanctioning such infringements, it is permissible for the Member States to give binding effect to a decision making a finding of infringement by certain persons in subsequent proceedings for the imposition of administrative penal sanctions on those persons in respect of that infringement. The proceedings must nevertheless be organised in such a way that the persons concerned are able to exercise their fundamental rights in the proceedings leading to the decision in which the finding of infringement is made.
57That means, in particular, that in the course of those proceedings, those persons have had a practical and effective opportunity to exercise the rights of the defence, including the right to be heard, and to invoke the right to silence and the presumption of innocence in relation to the matters of fact which are subsequently to be used in support of the allegation, and will therefore have an impact on the sentence or the sanction imposed.
58That is not the case in the second situation referred to in paragraph 54 of the present judgment, even though the natural person at issue in the main proceedings, who did not participate, as a party, in the proceedings leading to the decision which incorporated the finding and has become final, did participate in those proceedings as a member of a representative organ of a legal person to which those proceedings related.
59As the Advocate General observed in point 58 of his Opinion, the rights of the defence are of a subjective nature, such that it is the concerned parties themselves that must be able effectively to exercise those rights, irrespective of the nature of the proceedings to which they are subject. That is all the more so where, in the context of administrative penal proceedings liable to result in personal liability, on the part of directors or members of the organs of a company, for an infringement of the rules on takeover bids attributable to the company, and in the imposition of sanctions of a criminal nature on those directors or members, the possibility that their personal interests may diverge from the interests of the company cannot be ruled out.
60It follows that, in proceedings for the imposition of an administrative penal sanction on a natural person, the administrative authority must disregard the binding effect attaching to assessments made in a decision which has found the alleged infringement to have been committed, and which has become final, without that person having had the opportunity to challenge those assessments in his or her personal capacity, in the exercise of his or her own rights of the defence.
61Similarly, having regard to the case-law referred to in paragraph 45 of the present judgment, the right to silence precludes a situation in which a natural person who is at risk of being held personally liable, in subsequent proceedings for an administrative penal sanction, for an infringement which is punishable by the imposition of administrative sanctions of a criminal nature, has not had the opportunity to exercise that right in relation to matters of fact which are subsequently to be used in support of the allegation, and will therefore have an impact on the sentence or the sanction imposed.
62Furthermore, the presumption of innocence precludes a situation in which a natural person is held liable, in proceedings for an administrative penal sanction, for an infringement established by a decision – adopted at the conclusion of proceedings in which that person did not have the opportunity to participate as a party entitled to exercise the rights of the defence and the right to a fair hearing – which has become final without that person having had the opportunity to challenge it, and which can no longer be challenged by that person before an independent and impartial tribunal.
63Finally, as regards access to an independent and impartial tribunal within the meaning of the second paragraph of Article 47 of the Charter, it is true that the order for reference indicates that the Takeover Commission is classified, under the national constitutional case-law, as an independent and impartial tribunal previously established by law, having all the characteristics of a tribunal and empowered to make determinations of fact and law, for the purposes of that provision.
64Having regard to the material in the file available to the Court and the answers to a question posed by the Court, however, and subject to the determinations and verifications which are for the referring court to make, it does not appear that the Takeover Commission offers the guarantees of impartiality appropriate to a tribunal, referred to in paragraph 52 of the present judgment.
65Under Paragraph 33 of the ÜbG, the Takeover Commission has power to investigate possible infringements of the obligation to submit a takeover bid, to initiate proceedings for findings of infringement and for administrative sanctions, and, in that regard, to make decisions as to whether an infringement has been committed and as to the application of sanctions. Through the implementation of the ÜbG, the Takeover Commission has extended ex officio powers, including the power to prove and establish the facts relevant to the decision to be given, and the power to adopt all measures of investigation which may be necessary in that regard.
66Furthermore, it is not apparent from the documents before the Court that there is a functional separation, within the Takeover Commission, between the departments responsible for investigation and prosecution, on the one hand, and the departments responsible for making findings of infringement and imposing sanctions, on the other. Moreover, it appears that, where an action is brought against a decision of the Takeover Commission making a finding of infringement or imposing a sanction, the commission has the status of defendant before the national court hearing the action.
67As the Advocate General observed, essentially, in points 68 and 69 of his Opinion, in the light of that evidence, and subject to the final determinations to be made, in that regard, by the referring court, it is not possible to regard the Takeover Commission as acting as an impartial third party between the alleged offender, on the one hand, and the administrative authority responsible for monitoring the compliance with takeover bids, on the other, or, therefore, to regard it as meeting the criteria required of an independent and impartial tribunal within the meaning of Article 47 of the Charter.
68It follows that, in order to meet the requirements of the case-law referred to in paragraph 53 of the present judgment, decisions of the Takeover Commission must be capable of being reviewed by a national court empowered, to that end, to examine all relevant matters of fact and law.
69In that regard, it is apparent from the documents before the Court that an action may be brought against a decision of the Takeover Commission, taken at the conclusion of proceedings for a finding of infringement, before the Oberster Gerichtshof (Supreme Court), but that the review conducted by that court, in such a case, is limited to matters of law. Thus, it appears that such a decision, once it has become final, produces binding effects in all subsequent administrative and judicial proceedings, where the parties are the same or as regards any person who participated in the earlier administrative proceedings as the representative of a party, provided that the factual and legal situations are the same, despite that decision not having previously been open to challenge before a court or tribunal with jurisdiction to make determinations of both fact and law.
70The fact that the jurisdiction of the national court responsible for reviewing the legality of decisions of an administrative authority on infringements of the rules concerning mandatory takeover bids is limited to determinations of law does not comply with the requirements laid down in the second paragraph of Article 47 of the Charter, set out in paragraph 53 of the present judgment. Consequently, if the decision in which the finding of infringement was made, having become final, was not open to subsequent review by a judicial body having jurisdiction to make determinations of law and fact, the administrative authority ought, in subsequent proceedings for an administrative penal sanction, in order to comply with the requirements of that provision of the Charter, to disregard the binding effect attaching to the assessments made in that decision.
71Having regard to all the foregoing considerations, the answer to the questions referred is that Articles 4 and 17 of Directive 2004/25, read in the light of the rights of the defence guaranteed by EU law, and particularly the right to be heard, and of Articles 47 and 48 of the Charter, are to be interpreted as precluding a practice of a Member State under which a decision making a finding of infringement of that directive, having become final, has binding effect in subsequent proceedings for the imposition of an administrative penal sanction for infringement of that directive, in so far as the parties to those proceedings did not have the opportunity, in the earlier proceedings for a finding that that infringement had been committed, fully to exercise the rights of the defence, and particularly the right to be heard, or to invoke the right to silence or the presumption of innocence in relation to the matters of fact to be used, subsequently, in support of the allegation, or in so far as they were unable to exercise the right to an effective remedy against such a decision before a court or tribunal empowered to determine matters of both fact and law.
Costs
72Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Fourth Chamber) hereby rules: Articles 4 and 17 of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, as amended by Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014, read in the light of the rights of the defence guaranteed by EU law, and particularly the right to be heard, and of Articles 47 and 48 of the Charter of Fundamental Rights of the European Union, are to be interpreted as precluding a practice of a Member State under which a decision making a finding of infringement of that directive, having become final, has binding effect in subsequent proceedings for the imposition of an administrative penal sanction for infringement of that directive, in so far as the parties to those proceedings did not have the opportunity, in the earlier proceedings for a finding that that infringement had been committed, fully to exercise the rights of the defence, and particularly the right to be heard, or to invoke the right to silence or the presumption of innocence in relation to the matters of fact to be used, subsequently, in support of the allegation, or in so far as they were unable to exercise the right to an effective remedy against such a decision before a court or tribunal empowered to determine matters of both fact and law.
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