Le sanzioni bancarie e finanziarie: il diritto al silenzio

The administrative sanctions in banking and financial matters have been a focus of interest for National and European Courts in recent years. These case-law occurred in the midst of a wide debate on the legal nature of sanctions and the consequent applicable guarantees. The present work summarizes in a first part the outcomes – not always conform – achieved by jurisprudence, and then examines the decision inherent the application of the right to silence. The analysis focuses mainly on sanctions in the field of market abuse, to which has been attributed a substantially criminal nature, starting from the famous Grande Stevens judgment of the European Court of Human Rights. While acknowledging the rationale behind case-law rulings aimed at protecting the persons concerned in the sanction procedure, it can be noted that the excessive proliferation of judgments, in the absence of an act by the legislator, has led to legal uncertainty. In addition, it urges the need to provide a precise definition of what is meant by the right to silence and how it applies in the market abuse sanctions, so as to avoid non-cooperative behaviour or an obstacle to the supervision activity. The framework analysed reveals the risk of an excessive proliferation of appeals to the Courts.