Società Italiana di Diritto ed Economia, SIDE - ISLE 2015 - 11TH ANNUAL CONFERENCE

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Due Process, Regulatory Authorities and their sanctioning models. The Consob case.

Last modified: 2015-12-15


The issue of the so called Independent Authorities, their sanctioning procedures and the compatibility with European principles, particularly that of a due process, has been recently the subject of a lively debate, which involved both the ECHR case law and the national jurisprudence.
The European Court of Human Rights (ECHR) has recently ruled in a well known case concerning the sanctioning procedure of the Italian authority on securities market (Consob). The 2014 decision in the case “Grande Stevens and Others v. Italy” raises numerous complex issues concerning the regulation of market abuses in Italy, in Europe as well as in other systems. The sanctioning procedure adopted by Consob has been declared inconsistent with the principles of “due process” stated by art. 6 of the ECHR Convention, because of a "lack of objective impartiality" of the Authority, the failure to comply with the equality of arms between the prosecution and the defence and the lack of a public hearing.
The sentence had some resonance in Italy, where the administrative judge has taken a debated position, hoping for a reform of the system of the authorities. The issue involves different profiles regarding, among others, the organization of the independent authorities and the need for separation between the investigation function and the decision one (judge versus jury); the debate on the nature and functions of quasi-judicial or simple administrative Authorities; the topic of participation and equality of arms in the sanctioning procedures; the need to guarantee the "due process principle" also to administrative proceedings as well as to the trial.
Alternative models of reference are the Anglo-Saxon model (US and British) on the one hand, and the French one on the other. In France, following another ECHR case, Dobus SAv c. France (2009), a new supervisory authority for the banking system has been established which is made up of two separate bodies with distinct functions (one with functions of investigation, the other with functions of decision).
The paper deals with some of the issues highlighted and aims at verifying whether the principles and the jurisprudence of the ECHR may outline a new reference model in Europe to which Italy (and other countries) should converge in the future.

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