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Clifford Chance

Regulatory Investigations and Financial Crime Insights

CONSOB's sanctions regime: Obligation to be interviewed vs the right to silence and the right against self-incrimination

Is it possible to require a person under investigation by CONSOB in relation to the administrative wrongdoing of insider trading and market manipulation to be interviewed by their accuser? Can this person (under investigation in relation to administrative wrongdoing) be forced to choose whether to follow the order to be interviewed (art. 187 octies paragraph c) the Consolidated Financial Intermediation Law) or exercise their inviolable right of defence (the right to remain silent and the right against self-incrimination being laid down in the constitution and treaties) and risk being subject to further administrative sanctions provided for in the case of failure to comply with a request from the Regulator or its delayed performance (art. 187 quinquiesdecies Consolidated Financial Intermediation Law) or, even worse, to further criminal sanction for obstructing the Regulator (art. 170 bis of the Consolidated Financial Intermediation Law)?

These are, in short, the questions put by the Supreme Court to the Constitutional Court when it sought a declaration that the law also imposes an administrative sanction for non-compliance with a request from the CONSOB or a delayed performance of its functions on a person that CONSOB, when exercising its functions, alleges to have committed the administrative wrongs of insider trading and market manipulation.