Diritto al silenzio e autorità di vigilanza dei mercati finanziari

Allena, Miriam; Vaccari, Stefano

The paper analyses the privilege against self-incrimination with respect to the ‘punitive’ sanctioning powers exercised by financial markets' supervisory authorities. After illustrating the historical origins and the conceptual relevance of the said privilege, the authors focus on the most recent rulings of the European Court of Justice and of the Italian Constitutional Court which have acknowledged the application of the said privilege in the context of substantially ‘criminal’ sanctioning proceedings (pursuant to Art. 6 of the ECHR) involving individuals. In particular, the authors highlight a fundamental inconsistency between the said recent European and national jurisprudential approaches and, on the contrary, the obligation of ‘active collaboration’ still imposed on undertakings subject to an investigation relating to competition law. After recalling the jurisprudence of the ECHR on the privilege against self-incrimination as well as the guarantees enshrined in the Charter of Fundamental Rights of the European Union, the grounds for a desirable ‘rapprochement’ of the European and national discipline of sanctioning proceedings in the financial markets and in competition law are discussed.