With judgment no. 84 filed on 30 April 2021, the
Constitutional Court (President Coraggio – Drafter Viganò) declared that
Article 187-quinquiesdecies of Legislative Decree no. 58 of 24 February
1998 (T.U.F.) was constitutionally illegitimate “insofar as it also applies
to a natural person who has refused to provide CONSOB with answers that may
reveal his or her liability for an offence that is subject to administrative
sanctions of a punitive nature, i.e. a crime”.
The Court ruled that the right to remain silent also
applies in relation to supervisory authorities and that, therefore, a natural
person may not be penalised if he or she has refused to answer questions put by
those authorities at a hearing or in writing, which could have revealed their
liability for an administrative offence punishable with punitive measures, or
even their criminal liability.
However, the Court stated that the right to remain
silent does not justify obstructive behaviour that causes undue delays in the
performance of supervisory activities, such as refusal to attend a hearing, or
delaying tactics aimed at postponing the hearing itself, or refusal to hand
over data, documents or records existing prior to the authority’s request.