26.4.2008

Official Journal of the European Union

C 107/14

(Case C-45/08)

(2008/C 107/21)

Language of the case: Dutch

Referring court

Parties to the main proceedings

Applicants: Spector Photo Group NV and Chris Van Raemdonck

Defendant: Commissie voor het Bank-, Financie- en Assurantiewezen (CBFA)

Questions referred

1.Do the provisions of the Market Abuse Directive, and especially Article 2 thereof, call for full harmonisation, with the exception of those provisions which explicitly permit the Member States to interpret measures as they wish, or do they, in their entirety, concern a minimum of harmonisation?

2.Should Article 2(1) of the Market Abuse Directive be interpreted as meaning that the mere fact that a person as referred to in Article 2(1) of that directive possesses inside information and acquires or disposes of, or tries to acquire or dispose of, for his own account or for the account of a third party, financial instruments to which that inside information relates, signifies in itself that he makes use of his inside information?

3.If the answer to the second question is negative, must it then be assumed that the application of Article 2 of the Market Abuse Directive presupposes that a deliberate decision has been taken to use inside information? If such a decision may also be unwritten, is it then required that the decision to use inside information is evident from circumstances susceptible to no other interpretation, or is it sufficient that those circumstances could be so interpreted?

4.If in the determination of the proportionate nature of an administrative sanction, as referred to in Article 14 of the Market Abuse Directive, account must be taken of the gains realised, should it be assumed that the publication of information to be designated as inside information has indeed had a significant effect on the price of the financial instrument? If so, what minimum level of price movement must have occurred for it to be possible to regard it as significant?

5.Whether or not the price movement after the publication of information must be significant, what period should be taken into account after the publication of the information for the determination of the scale of the price movement, and what date should be taken as the basis for gauging the financial advantage gained in the determination of the appropriate sanction?

6.In the light of the determination of the proportionate nature of the sanction, should Article 14 of the Market Abuse Directive be interpreted as meaning that, if a Member State has introduced the option of a criminal sanction, combined with an administrative sanction, account must be taken of the option and level of a criminal financial penalty in the consideration of its proportionality?

Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) (OJ 2003 L 96, p. 16).