Offer of securities to the public, non-punitive Consob sanctions

Consob's sanctions for breaches of the regulations of the Tuf on the offering of securities to the public are not punitive in nature. There is therefore no problem of excessive afflictiveness of the repressive treatment, as was the case for the abuse of inside information and market manipulation. This was affirmed by the Supreme Court in Order 28122 of the Second Civil Section, which rejected the request for a preliminary reference to the European Court of Justice. According to the request of the defence, the current sanctionary discipline provided for in Article 94 of the Financial Consolidation Act would be in conflict with the Charter of Fundamental Rights of the European Union, in particular Article 41.

The Cassazione first of all recalls, in general terms, that in its judgment of 6 October 2021 (C-561/19), the Court of Justice, after emphasising that the preliminary reference is the keystone of the jurisdictional system established by the Treaties, reiterated and developed the criteria that avoid the obligation of courts of last instance to refer to the Court when there are questions of interpretation of Community law.

These are, in addition to cases of irrelevance of the question, the acte éclairé, when the question is materially identical to one already decided or there is established case law of the Court on the point, and the acte clair, when the interpretation of Union law is so clear that it does not give rise to reasonable doubt. For the Court of Justice, the initiative of the parties in the final instance cannot deprive the court of its independence.

In more specific terms, the Supreme Court observes, the administrative fines applied by Consob for violations in the field of public offer of securities are not administrative sanctions of a punitive nature and do not pose a problem of compatibility with the guarantees reserved for criminal trials by Article 6 of the European Convention on Human Rights (according to the now proverbial 2014 Grande Stevens and others v Italy ruling), "in the sense that they are not comparable, in terms of type, severity, pecuniary and personal impact, to the Consob sanctions relating to insider trading and market manipulation, both of which are considered substantially criminal".

In the case that came before the Court of Cassation, a director of Banca popolare di Vicenza had been fined Euro 10,000 for omitting, in the documentation of abond offer, information on the existence, extent and effects of the capital financed, for the granting of loans instrumental to the subscription and purchase of shares of the bank.