administrative sanctions of the CBA (and CFA and so on) of the rule of law and of its corollaries: only the law, as opposed to the secondary instruments, can create new sanctions (so-called preserve of law), the list of sanctions is “closed” and the content of each one is determined by the law, and the sanctions are not retroactive. However, the case of the administrative sanctions of the CBA (but it also applies to the CFA, the Insurance Code and the law on pension funds) cannot 26 be considered an absolute preserve of law, rather a relative one.
As to the second corollary of the rule of law (consisting of the prin- ciple of obligatory nature and determination of the sanctions), it must be noted that it extends to the administrative sanctions that the solutions developed for the criminal law. The most important conse- quence is a ban on the analogical interpretation of the sanctioning rules and the precise definition. It is normally said that criminal rules and administrative sanctions are typical, in the sense that the constituting elements of the illicit action (or omission) are properly described by the rule. This concept, however, is construed in a pecu- liar way in the regulation of banking and financial markets, as many sanctioning rules are de facto complemented by the regulations issued by the supervising authorities.
The third corollary to the rule of law is that the penalty is not retro- active whenever the new rule is new or less favourable than the old one is for the offender. According to the principle, a person cannot be punished with an administrative penalty under a law that came into force after the commission of the violation, corollary that responds both to a ratio of guarantee and of certainty.
Another important corollary of the rule of law that is not consid- ered applicable to administrative sanctions, which applies to crim- inal matters, as set out in Art. 2, paras 2–4, Criminal Code, is the retroactive application of the criminal law being more favourable to the accused, the so-called principle of favor rei. In fact, neither the Law 689/1981 or other laws or regulations recall it. For this reason, the scholars27 believe that the infringer liable to a fine should pay according to the rules in force at the time when the illicit act has been committed, even if the act is no longer considered as an administra- tive offence or a more favourable rule came into force. The judges follow this view.28
However, a recent effort by some commentators to reverse this line of precedents seems convincing.29 The idea is leveraging on the
precedents of the European Court of Human Rights to affirm the retroactivity of the rule more favourable for the offender (even) in administrative matters, because it is a point of legal culture, which our legal system can no longer ignore. 30
In addition to this consecration at the international and suprana- tional level, this conclusion is an expression of the more general prin- ciple, inherent in the constitution, of the favor libertatis, the scope of which no longer seems to be limited by virtue of discretion (unrea- sonably) under ageing formalistic arguments to criminal offences.
Continuing in the recognition of the principles applicable to administrative sanctions provided for in banking and financial matters, it deserves to be remembered the principle of individual guilt of the offence. The principle means that only the infringer is liable for the illicit act, notwithstanding the joint liability of the bank or financial intermediary to which the individual belongs. In addi- tion, the responsibility for the administrative offence always follows a wilful or at least negligent behaviour (act or omission): the system does not know the hypotheses of strict liability. 31 As to the “subjec- tive element” (wilful or negligent behaviour), Art. 3 of Law 689/81 establishes a presumption of guilt of the accused, leaving him or her the burden of proving that he or she acted without guilt.
The final general principles applicable to administrative sanctions in the financial markets are that the obligations are not transmissible to the heirs and those on the legal cumulability. In the first case, if a single conduct is in violation of several provisions for which there are separate penalties or the infringer committed multiple violations of the same provision, the author will be sanctioned by the penalty provided for the most serious violation, increased threefold. In the second case, that is, when the infringer committed various violations (of the same provision or of different provisions), there will be as many penalties applied as violations committed, according to the criterion tot crimina poenae. 32
A particular case of a situation of competition between administra- tive offence and criminal offence is found in terms of obstruction of the supervisory function: Art. 2638 of the Civil Code identifies two behaviours that integrate the crime of obstruction of the exer- cise of the functions of public supervisory authorities. For the first, a wilful intent is required for the other generic intent is sufficient. 33 Scholars 34 believe that the penalty provided by the Civil Code should
prevail over the administrative one in the case where there is wilful intent, whereby the jury is still out in the case of the generic intent.
Hypotheses of obstruction of the supervisory function appear in all disciplines of financial markets and are generally sanctioned on the administrative ground. For instance, Art. 19-quater, para. 2, letterr a of the Legislative Decree No. 252 of 5 December 2005 punishes the members of pension funds that do not comply within the prescribed deadline, even in part, to the requests of the Covip or cause a delay in the exercise of its functions.
A special case not to be mistaken with the idea of competition between administrative and criminal offence is a discipline based on the so-called dual track of sanction concerning market abuse contained in the Arts 187-bis and 187-ter of the CFA (respectively r insider dealing and market manipulation). In this case, it is stated that “without prejudice to criminal penalties when the act consti- tutes a crime, shall be punished with an administrative sanction”