Secondary market abuse, clues weigh in

In secondary insider trading, it is not necessary to ascertain the source of the privileged information. But clues do count. The Court of Cassation (ruling 11040/2026) thus rejected the appeal against the decision to confirm the consob sanction for market abuse, in reference to the Opa by Italcementi, committed on the day the takeover bid by the German group HeidelbergCement was launched. On that occasion, Consob had issued fines and confiscated almost EUR 5 million. Specifically, the judges of legitimacy examined the appeal of an economic beneficiary of the Panamanian entity Tressel Overseas.

In rejecting the defence's exceptions, on the apparent motivation, the Court emphasises a body of serious and concordant evidence.

In evidence against the appellant were: the possession of privileged information, admitted by the appellant himself, the succession of telephone calls with those who knew that information in view of the imminent arrival of the German partners, the size and the manner of the share purchase - which had never aroused the appellant's interest - that had produced a capital gain of over one and a half million euro and the professional relations with Italcementi. Finally, the timing, with an order forwarded a few hours before the release of the communiqué announcing the agreement.

The Supreme Court also denies that the self-accusing statements of the appellant are completely useless. For the defence, in fact, given the punitive nature of sanctions, the addressee should enjoy all the guarantees typical of criminal proceedings, starting with the warning of the right to remain silent. The appellant's request is to refer the matter to the EU Court. For the Cassazione, however, this is not necessary. The use of the accused's admissions is not censurable, as they are indirect elements confirming an already exhaustive evidentiary plan.