Op-Ed: “DB v Consob: the scope of right to silence under EU law” by Luigi Lonardo
With the decision in DB v Consob (C-481/19) of 2 February 2021, and as commented on EU Law Live by Giulia Lasagni, the CJEU held that Articles 47 and 48 of the Charter impose respect for the right of natural persons to remain silent in administrative proceedings that may lead to criminal penalties. More specifically, the Court held that Article 14(3) of Directive 2003/6 on insider dealing and market manipulation, and Article 30(1)(b) of Regulation 596/2014 o on market abuse allow Member States not to penalise natural persons who, in an investigation carried out in respect of them by the competent authority under that directive or that regulation, refuse to provide that authority with answers that are capable of establishing their liability for an offence that is punishable by administrative sanctions of a criminal nature, or their criminal liability.
The request for a preliminary ruling was referred by the Italian Constitutional Court on the interpretation and validity of the above mentioned EU secondary law. In essence, the Italian Constitutional Court questioned the compatibility of those articles with the right to remain silent, as it derives from Article 47 and 48 of the Charter of Fundamental Rights of the European Union – and in case of compatibility, it asked for guidance as to the content of that right.
Since a narrative of the judgment is already available to the readers of EU Law Live, this Op-Ed contains a commentary focused on the CJEU’s findings on Article 47 and 48 of the Charter, and on the differences between EU and ECtHR standards.
At the outset, a broader, ‘systemic’ consideration may be helpful to put the decision in context. The reference from the Italian Constitutional Court was phrased so as to leave little doubt as to what was the expected answer. This signals a form of covert defiance to the CJEU that has not drifted into conflict – but might have, one may speculate, had the CJEU reached a conclusion that was at odds with the right as protected by the Italian Constitution. Overt defiance was shown by the Danish Supreme Court in the Ajos judgment, and all the more so in the ‘spectacular’ PSPP judgment by the German constitutional court. One might contend that the decision of the CJEU in DB v Consob may be read in the light of the Court’s desire to avoid a repetition of the Taricco ‘saga’.
The judgment in DB v Consob is an important piece in the puzzle of the multi-level protection of rights in Europe. The Italian Constitutional Court decided to refer a question also in light of a perceived discrepancy between the case law of the CJEU and of the European Court of Human Rights (point 9.2 of the decision to refer). In fact, for the fundamental point of the content of the right, the CJEU fell back on the jurisprudence of the ECtHR: the Court did not engage with the case law of the ECtHR in any detail, limiting itself to accepting the rationale and content of that right as derived from the interpretation of the Strasbourg court (the Opinion of AG Pikamäe, instead, considered in greater detail the ECtHR case law). Significantly, the Court referred to the authority of Corbet and others v France (paragraph 40), a case in which the ECtHR was called upon to adjudicate on the right to silence in criminal proceedings (not administrative ones). The CJEU’s pronouncement thus appears to say that the case law on the right to silence developed in the context of criminal proceedings can validly be relied upon also in administrative proceedings carrying criminal sanctions.
As a secondary point, it might be worth pointing out that the judgment does not rely on the distinction made by the ECtHR between ‘proceedings and penalties which fall within the ‘hard core of criminal law’, which carry ‘significant stigma’ for those affected by them, and those that fall outside that category’ (Jussila v. Finland): for the latter category, the Commission argued, the scope of the right to remain silent can be narrowed down to correspond to the protection guaranteed by the CJEU’s case law (point 108 of the AG’s Opinion). In the AG’s reconstruction, such a point was not material for penalties adopted in the field of insider dealing and market manipulation, as the ECtHR held in Grande Stevens that they did fall within the hard core of criminal law. More generally, he took the view that the right to remain silent could not be restricted as it lies ‘at the heart of the concept of a fair trial’. In addition, the AG suggested that Jussila did not entail that the guarantees stemming from Article 6 ECHR could be limited or abolished for offences falling outside the hard core of criminal law, but merely that they ‘must be replaced by alternative means of protecting the right to a fair trial’ (point 113, AG Opinion). Absent further specification by the Court, it is not possible to say whether the AG’s reasoning has been accepted by the CJEU.
On the substance, the Court correctly recognised that the rationale for the protection of the natural person would be easily circumvented if refusal to answer questions was punishable by sanctions of a criminal nature, or by criminal prosecution. This is the case regardless of whether the proceedings are of a criminal nature or administrative proceedings which national law enable to connect with criminal sanctions (either by criminally sanctioning the refusal to cooperate, or by allowing criminal proceedings to begin thanks to evidence thereby gained). At the same time, the Court is careful to avoid going a step too far: the invocation of the right cannot constitute ‘abuse’ and justify any refusal to comply with the competent authorities (for example, simply to delay proceedings). This clarification is meaningful but, strictly speaking, unnecessary as the prohibition of abuse of right is, arguably, a general principle of EU law. The judgment does not use the language of ‘abuse of right’, but the notion is present in paragraph 41, where the Court essentially states that the right cannot be invoked to serve a purpose other than that for which it was conferred. In practice, however, the CJEU gives important guidance to lawyers defending physical persons (and to the competent authorities): for once, hearings must be attended, and a refusal to appear or to cooperate is, prima facie, punishable. This presumption can be rebutted if the right to remain silent is invoked – and for such right to be successfully invoked, it must be done during proceedings capable of resulting in sufficiently serious penalties, and/or that punish an offence against a public good, also considering how the penalties are classified as criminal by national law (as AG Pikamäe recalled, these are the criteria established by the ECtHR in Bonda).
Where the Court and the AG diverged meaningfully is on the interpretation of the secondary law at issue in the light of the Charter. While the AG went into some detail (points 72-84 of the Opinion) to consider whether a systematic and teleological interpretation of that legislation imposed on Member States the obligation to adopt criminal sanctions, the Court recurred to the different expediency-argument of interpreting EU secondary law so as to ensure its conformity and validity with primary law (and in particular with the Charter) (paragraph 50).
Luigi Lonardo is a lecturer in EU law at University College Cork.