Market Abuse: The Court of Justice of the European Union Recognizes the Right to Remain Silent Before CONSOB

Following a reference for preliminary ruling by the Constitutional Court (Order no. 117 of 10.5.2019) the Court of Justice of the European Union (the “CJEU”) recognized for the first time the “right to remain silent” before the Italian Supervisory Authority for the Financial Market (the “CONSOB”) for individuals involved in administrative proceedings for market abuse under Legislative Decree no. 58 of 24.2.1998 (“TUF”).

The CJEU has, however, clarified the scope of this right, specifying, among other things, that it does not extend to any further uncooperative conduct (including, for example, failure to appear at the hearing).

The ruling deserves particular attention also in view of possible further developments that could derive from this decision: on the one hand, it seems reasonable to foresee that the Constitutional Court will conclude for the unconstitutionality - at least partial - of art. 187-quinquiesdecies of the TUF; on the other hand, the time could be ripe for recognizing the same right also to legal persons, at least within the limits and to the extent it is already recognized in the case-law of the CJEU on competition law.

Please click here to read the full Italian language alert memorandum.