Opinion of the Advocate General — ECLI:EU:C:2020:861
Date: 2020-10-27
Language of the case: Italian
Subject matter: Right of establishment;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-481/19 — 1 
Case C-481/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
21 June 2019 
Referring court:  
Corte costituzionale (Italy) 
Date of the decision to refer:  
6 March 2019 
Appellant on a point of law:  
D.B. 
Respondent in the appeal on a point of law:  
Commissione Nazionale per le Società e la Borsa (Consob) 
  
Subject matter of the main proceedings 
Interlocutory proceedings for the review of the constitutionality of Article 187n of 
decreto legislativo 24 febbraio 1998, n. 58 (Legislative Decree No 58 of 
24 February 1998), instituted by the Corte di cassazione (Court of Cassation, 
Italy) in the context of an appeal on a point of law brought by Mr D.B. 
(D.B.) against the Commissione nazionale per le società e la borsa (National 
commission for companies and the stock exchange; ‘Consob’).  
More specifically, D.B. has brought an appeal before the Corte di cassazione 
against the judgment of the Corte d’appello di Roma (Court of Appeal, Rome, 
Italy), handed down on 20 November 2013, by which that court dismissed D.B.’s 
appeal against Consob’s decision of 2 May 2012 imposing certain administrative 
sanctions on him in connection with the administrative offences provided for in 
Article 187a(1)(a) and (c) and Article 187n of Legislative Decree No 58/1998, in 
the version in force at the relevant time. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-481/19 
 
2  
Subject matter and legal basis of the request for a preliminary ruling 
The precise interpretation and the validity of Article 14(3) of Directive 
2003/6/EC, in so far as it continues to apply ratione temporis, and of 
Article 30(1)(b) of Regulation (EU) No 596/2014. In particular, whether those 
provisions are to be interpreted as permitting Member States to refrain from 
penalising individuals who refuse to answer questions put to them by the 
competent authorities and which might establish their liability for an offence that 
is punishable by criminal sanctions or administrative sanctions of a ‘punitive’ 
nature, and, if the answer to that question is in the negative, whether those 
provisions are consistent with Articles 47 and 48 of the Charter of Fundamental 
Rights of the European Union (‘the Charter’), including in light of the case-law of 
the European Court of Human Rights (‘the ECtHR’) on Article 6 of the European 
Convention for the Protection of Human Rights and Fundamental Freedoms (‘the 
ECHR’) and the constitutional traditions common to the Member States. 
The legal basis of the referral is Article 267 TFEU. 
Questions referred 
‘1. Are Article 14(3) of Directive 2003/6/EC, in so far as it continues to apply 
ratione temporis, and Article 30(1)(b) of Regulation (EU) No 596/2014 to be 
interpreted as permitting Member States to refrain from penalising individuals 
who refuse to answer questions put to them by the competent authorities and 
which might establish their liability for an offence that is punishable by 
administrative sanctions of a “punitive” nature? 
2. If the answer to the first question is in the negative, are Article 14(3) of 
Directive 2003/6/EC, in so far as it continues to apply ratione temporis, and 
Article 30(1)(b) of Regulation (EU) No 596/2014 compatible with Articles 47 and 
48 of the Charter of Fundamental Rights of the European Union — including in 
the light of the case-law of the European Court of Human Rights on Article 6 
ECHR and the constitutional traditions common to the Member States — in so far 
as they require sanctions to be applied even to individuals who refuse to answer 
questions put to them by the competent authorities and which might establish their 
liability for an offence that is punishable by administrative sanctions of a 
“punitive” nature? 
Provisions of EU law cited 
Article 14(1) and (3) of Directive 2003/6/EC 
Article 12(2)(b) of Directive 2003/6/EC 
Article 23(2)(b) of Regulation (EU) No 596/2014 
CONSOB 
 
3 
Article 30(1)(b) of Regulation (EU) No 596/2014 
Articles 47, 48 and 52(3) of the Charter 
Provisions of national law cited 
Article 187n of Legislative Decree No 58/1998, which concerns the protection of 
the supervisory tasks of the Bank of Italy and Consob. Of particular relevance is 
the version which applies to the facts of the case in the main proceedings, and 
which provided: ‘Except in the cases referred to in Article 2638 of the Civil Code, 
an administrative fine of between EUR 50 000 and EUR 1 000 000 shall be 
imposed on any person who fails to comply with a request from Consob within the 
specified time limit or delays the performance of Consob’s duties’ and which 
provided for an administrative fine of between EUR 50 000 and EUR 1 000 000 
for failure to give answers at a personal hearing organised by Consob. Also of 
relevance is the version of that provision as amended by Decreto Legislativo n. 
129/2017 (Legislative Decree No 129/2017), paragraph 1 of which provides: 
‘Except in the cases referred to in Article 2638 of the Civil Code, the sanctions 
provided for in this article shall be imposed on any person who fails to comply 
within the specified time limit with a request from the Bank of Italy or Consob or 
who fails to cooperate with those authorities in the performance of their 
supervisory duties or delays the performance of those duties.’ 
Article 187g(3)(c) of Legislative Decree No 58/1998, which concerns the duties 
conferred on Consob, which include the power to ‘conduct a personal hearing’ of 
‘any person who may have information regarding the facts’. 
Article 187a(1)(a) and (c) of Legislative Decree No 58/1998, which provides for 
the administrative offence of insider dealing. 
Article 184 of Legislative Decree No 58/1998, which provides for the criminal 
offence of insider dealing. 
The Constitution of the Italian Republic, in particular: the second paragraph of 
Article 24, the second paragraph of Article 111, which enshrines the entitlement 
of parties to adversarial proceedings to equal conditions; the first paragraph of 
Article 117, which provides that ‘legislative powers shall be vested in the State 
and the Regions in compliance with the Constitution and with the constraints 
deriving from EU legislation and international obligations’; and Article 11, which 
authorises ‘limitations of sovereignty that may be necessary to a world order 
ensuring peace and justice among the Nations’. 
Outline of the facts and the main proceedings 
1 On the conclusion of proceedings commenced against D.B., Consob imposed, by 
decision of 2 May 2012, certain administrative sanctions on D.B., in accordance 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-481/19 
 
4  
with Legislative Decree No 58/1998, in particular, under Article 187a(1)(a) and 
(c) of the legislative decree, which concerns insider dealing, and under 
Article 187n thereof for having repeatedly postponed the date of the hearing to 
which he had been summoned and for having refused, once he finally appeared 
before Consob, to answer the questions put to him. Article 187n of Legislative 
Decree No 58/1998 provides that ‘any person who fails to comply with a request 
from Consob within the specified time limit or delays the performance of 
Consob’s duties’ is liable to a penalty. That provision was introduced by the 
Italian legislature in implementation of the general duty to cooperate with the 
supervisory authorities referred to in Article 14(3) of Directive 2003/6/EC. 
2 In separate criminal proceedings, D.B. was accused of the crime of insider dealing 
provided for in Article 184 of Legislative Decree No 58/1998. In respect of that 
offence, D.B. agreed with the Public Prosecutor to a conditionally suspended 
sentence of eleven months’ imprisonment and a fine of EUR 300 000. That 
sentence was handed down by the Giudice per le indagini preliminari del 
Tribunale di Milano (Judge in charge of preliminary investigations at the District 
Court, Milan, Italy) on 18 December 2013. 
3 D.B. brought an appeal against Consob’s decision of 2 May 2012 before the Corte 
d’appello di Roma, arguing, amongst other things, that the penalty imposed on 
him pursuant to Article 187n of Legislative Decree No 58/1998 was unlawful. By 
judgment of 20 November 2013, the Corte d’appello di Roma dismissed his 
appeal.  
4 D.B. brought an appeal on a point of law against that judgment before the Corte di 
cassazione. By Order No 54 of 2018, that court raised a number of questions on 
constitutionality before the Corte costituzionale (Constitutional Court, Italy) with 
reference to Article 187n of Legislative Decree No 58/1998.  
The main arguments put forward by the Corte di Cassazione on raising the 
questions on constitutionality 
5 The Corte di cassazione raises the question not only of the possible inconsistency 
of Article 187n with national constitutional laws, namely, Article 11, the second 
paragraph of Article 24, the second paragraph of Article 111 and the first 
paragraph of Article 117 of the Italian Constitution, but also its possible 
incompatibility with the ECHR, the International Covenant on Civil and Political 
Rights (‘the International Covenant’) and the Charter.  
6 First, the Corte di cassazione states that Article 187n, introduced by the Italian 
legislature in implementation of the duty to cooperate with the supervisory 
authorities provided for in EU secondary legislation, specifically, Articles 12(b) 
and 14(3) of Directive 2003/6/EC, might be unconstitutional in so far as it 
penalises failure to comply, within the specified time limit, with requests made by 
Consob and penalises the causing of delay in the performance of Consob’s duties, 
including where the person in question is someone whom Consob is investigating 
CONSOB 
 
5 
in connection with the possible commission of an offence that is punishable by 
essentially criminal sanctions. 
7 In addition, the Corte di cassazione is uncertain whether the abovementioned duty 
of cooperation — in so far as it is deemed to apply to persons who are the subject 
of an investigation — is compatible with the second paragraph of Article 47 of the 
Charter, Article 6 ECHR and Article 14 of the International Covenant. In that 
connection, that court points out, first, that the ECHR and the International 
Covenant respectively recognise, implicitly and expressly, the right of every 
individual not to incriminate himself and the right to remain silent even in 
administrative proceedings for the imposition of sanctions of an essentially 
‘punitive’ nature, such as the proceedings which Consob commenced against 
D.B. Furthermore, the Corte di cassazione points out that the entire scheme of 
rules laid down in Legislative Decree No 58/1998 falls within the scope of EU 
law, for the purposes of Article 51 of the Charter, and that the wording of the 
second paragraph of Article 47 of the Charter is substantially the same as that of 
Article 6(1) ECHR. Thus, Article 47 must be interpreted — in accordance with 
Article 52(3) of the Charter — in a manner consistent with the ECtHR’s 
interpretation of Article 6 ECHR. 
8 In particular, according to the Corte di cassazione, the ‘right to remain silent’ and, 
more generally, the rights of the defence, should apply not only in criminal 
proceedings, but also in personal hearings conducted by Consob in the course of 
its supervisory activities, which may precede the initiation of proceedings for the 
imposition of ‘punitive’ sanctions upon persons identified as the author of an 
offence. Indeed, that court considers that any person accused of the offence of 
insider trading should have the right not to be constrained, under threat of a heavy 
fine (as was imposed on D.B.), to make statements which might subsequently be 
used as evidence against him.  
9 In support of that interpretation, the Corte di cassazione refers not only to 
Article 24 of the Italian Constitution, but also to Article 6 ECHR, as interpreted by 
the ECtHR, and the case-law of the Court of Justice of the European Union (‘the 
Court of Justice’) on the protection of competition, which gives rise to the 
principle that the European Commission cannot compel an undertaking to provide 
it with answers which might involve an admission on its part of the existence of 
an infringement, it being for the Commission to prove such an infringement.  
Succinct presentation of the reasons for the request for a preliminary ruling 
10 The Corte costituzionale considers that the issue of constitutionality raised by the 
Corte di cassazione consists, in essence, in an examination of whether it is 
constitutional to penalise, under Article 187n, any individual who refuses to 
answer questions which might establish his liability in the course of a hearing 
conducted by Consob in the performance of its supervisory duties and, in 
particular, in determining whether the ‘right to remain silent’ to which the Corte di 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-481/19 
 
6  
cassazione (Court of Cassation) alludes applies not only in criminal proceedings, 
but also in the abovementioned personal hearings conducted by Consob.  
11 First and foremost, the Corte costituzionale observes that, in the Italian legal 
system, the scope of Article 187n has been extended, by Legislative Decree 
No 129/2017, so that sanctions will apply not only to individuals who fail to 
comply with requests from the authorities or who delay the performance of the 
authorities’ duties, but also, more generally, to individuals who do not cooperate 
with the authorities in the performance of their supervisory duties. One of 
Consob’s supervisory duties is, in accordance with Article 187g(3)(c) of 
Legislative Decree No 58/1998, the power to ‘conduct a personal hearing’ of ‘any 
person who may have information regarding the facts’. However, no right to 
refrain from answering is established for the benefit of individuals who have 
already been identified by Consob as the possible authors of an offence in relation 
to which it has jurisdiction and which may be punished with an administrative 
sanction that is ‘essentially punitive’. 
12 The Corte costituzionale points out that, on the one hand, a declaration that 
Article 187n — introduced into Italian law to implement a specific obligation 
under EU secondary law — is unlawful could be at odds with EU law itself and, 
in particular, inconsistent with the obligation which currently arises under 
Article 30(1)(b) of Regulation (EU) No 596/2014, which repealed and replaced 
Directive 2003/6/EC. On the other hand, that obligation, laid down by EU 
secondary law, could be incompatible with Articles 47 and 48 of the Charter, 
which apparently recognise the fundamental right of individuals not to incriminate 
themselves and their right not to be constrained to make statements which amount 
to a confession, within the same limits as may be inferred from Article 6 ECHR 
and Article 24 of the Italian Constitution. 
13 With reference to those provisions of the Charter, and in the spirit of sincere 
cooperation between national courts and European courts in the definition of 
common levels of protection of fundamental rights — which is an objective of 
primary importance in a field, such as that under consideration, which is the 
subject of harmonisation — the Corte costituzionale regards it as necessary, 
before deciding the question of constitutionality that has been put to it, to ask the 
Court of Justice about the precise interpretation, and possibly also the validity, in 
the light of Articles 47 and 48 of the Charter, of Article 14(3) of Directive 
2003/6/EC, in so far as it continues to apply ratione temporis, and of 
Article 30(1)(b) of Regulation (EU) No 596/2014. 
14 In support of its reference for a preliminary ruling, the Corte costituzionale notes 
first of all that all the rules of the Italian Constitution, of the ECHR, of the 
International Covenant and of the Charter which the Corte di cassazione has cited 
all point to the recognition of the right of individuals not to incriminate 
themselves and of their right not to be constrained to make statements which 
amount to a confession (nemo tenetur se ipsum accusare). However, in the view 
of the Corte costituzionale, those rights cannot in themselves justify an 
CONSOB 
 
7 
individual’s refusal to attend, or undue delay in attending a hearing organised by 
Consob, provided that he is guaranteed — which was not the case in the 
proceedings against D.B. — the right not to answer the questions put to him at 
that hearing. 
15 The Corte costituzionale also points to its own settled case-law on the accused’s 
‘right to remain silent’, in which that right, while not expressly recognised in the 
Constitution, is held to be ‘an essential corollary of the inviolability of the rights 
of the defence’ and guarantees the accused the option of refusing to submit to 
examination as a witness and, more generally, to avail himself of the option of not 
answering questions put by the court or by the competent investigating authority. 
The Corte costituzionale states, in particular, that it has not yet been called upon to 
assess whether and, if so, to what extent the right to remain silent, which is one of 
the inalienable human rights that characterise the Italian Constitution, also applies 
in the context of administrative proceedings for the imposition of ‘punitive’ 
sanctions, according to the Engel criteria. However, it has on numerous occasions 
stated that individual guarantees which the ECHR and the Italian Constitution 
provide in criminal matters also extend to ‘punitive’ administrative sanctions and 
that, in particular, the administrative sanctions provided for in Italian law in the 
field of insider dealing constitute, by reason of their particular severity, measures 
of a ‘punitive’ nature, as the Court of Justice has itself moreover acknowledged 
(see the judgment of 20 March 2018 C-596/16 and C-597/16, Di Puma v Consob, 
paragraph 38).  
16 The Corte costituzionale then takes up the argument of the Corte di cassazione 
that it would appear to be reasonable to acknowledge that a person accused of the 
offence of insider dealing enjoys the same rights of defence as the Italian 
Constitution confers on persons suspected of having committed a criminal 
offence. According to the Corte costituzionale, that is all the more true given the 
risk that a person suspected of having committed that administrative offence, 
being required by both Italian law and EU secondary law to cooperate with the 
supervisory authority, might in fact assist in the formulation of a criminal charge 
against himself. 
17 The Corte costituzionale reiterates in that connection that, under Italian law, 
insider dealing is both an administrative offence (under Article 187a of 
Legislative Decree No 58/1998) and a criminal offence (under Article 184 of that 
legislative decree) and that respective sets of proceedings may be initiated and 
conducted in parallel, as happened in the case of D.B., in so far as that is 
consistent with the principle non bis in idem (see the judgment of the Court of 
Justice of 20 March 2018, C-537/16, Garlsson Real Estate SA and Others, 
paragraphs 42 to 63). Consequently, while it is not permissible to make use in 
criminal proceedings of statements made to an administrative authority without 
the guarantees of the rights of the defence — which include informing the accused 
of his right to remain silent — it is quite possible that such statements, obtained by 
the supervisory authority with the threat of sanctions for failure to cooperate, 
could actually provide the authority with information that is indispensable to 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-481/19 
 
8  
obtaining further evidence of unlawful conduct that may be used in subsequent 
criminal proceedings against the person who adopted the conduct in question. 
18 The Corte costituzionale goes on to state that the concerns raised by the Corte di 
cassazione are borne out by the case-law of the ECtHR on Article 6 ECHR, 
according to which the privilege against self-incrimination and the right to abstain 
from making statements that amount to a confession encompass the right of any 
person who is the subject of administrative proceedings that could result in the 
imposition of ‘punitive sanctions’ not to be constrained, under threat of sanctions 
for failure to comply, to give the authority answers which could establish his own 
liability (see the judgments of 4 October 2005, Shannon v. United Kingdom, 
paragraphs 38 to 41, and of 5 April 2012, Chambaz v. Switzerland, paragraphs 50 
to 58). The Corte costituzionale mentions, in particular, the judgment of the 
ECtHR in the case of J.B. v. Switzerland, in which the court held that all the 
guarantees offered by the ECHR in criminal matters, and the ‘right to remain 
silent’ in particular, must necessarily be afforded to a person who is the subject of 
an administrative investigation for tax offences and on whom ‘punitive’ fines have 
been imposed for repeated failure to answer requests for clarification put to him 
by the competent investigating authority. 
19 The Corte costituzionale also points to the case-law of the Court of Justice on the 
right to remain silent and on anti-competitive actions, according to which 
undertakings are required to make available to the Commission all information 
relating to the subject matter of the investigation, to comply with its requests for 
production of pre-existing documents and to answer its questions of a purely 
factual nature, and according to which the rights of the defence are infringed only 
if the undertaking is asked questions that are essentially aimed at obtaining an 
admission of an infringement, it being for the Commission to prove the 
infringement (see the judgments of 18 October 1989, C-374/87, Orkem, 
paragraph 27, of 29 June 2006, C-301/04 P, SGL Carbon AG, paragraphs 40 and 
44 to 49, and of 20 February 2001, T-112/98, Mannesmannröhren-Werke AG, 
paragraphs 77 and 78). In particular, according to that case-law, the obligation to 
answer the Commission’s questions is contrary neither to the rights of the defence 
nor to the right to a fair legal process: ‘There is nothing to prevent the addressee 
of such questions or requests from showing, whether later during the 
administrative procedure or in proceedings before the Community courts, when 
exercising his rights of defence, that the facts set out in his replies … have a 
different meaning from that ascribed to them by the Commission’ (see the 
judgments of 20 February 2001, T-112/98, paragraphs 77 and 78, and of 29 June 
2006, C-301/04 P, paragraphs 44 to 49). 
20 Nevertheless, the Corte costituzionale states that that case-law of the Court of 
Justice addresses the situation of legal persons, not natural persons, and largely 
pre-dates the adoption of the Charter and the ascribing to the Charter of the same 
value as the treaties. In addition, it would appear difficult to reconcile that case-
law with the ‘punitive’ nature of the administrative sanctions provided for in 
Italian law for insider dealing and it also appears to be at odds with that case-law 
CONSOB 
 
9 
of the ECtHR, which apparently ascribes a much broader scope to the accused’s 
right to remain silent, even in administrative proceedings for the imposition of 
‘punitive’ sanctions. 
21 Similarly, the Corte costituzionale observes that it appears that the Court of 
Justice has never addressed the question of whether Articles 47 and 48 of the 
Charter require, in light of the ECtHR’s case-law on Article 6 ECHR, mentioned 
above, that the accused’s right to remain silent should also extend to 
administrative proceedings that may result in the imposition of ‘punitive’ 
sanctions. EU secondary law has not yet provided an answer to that question 
either, and it has in fact been intentionally left open in Directive (EU) 2016/343 of 
the European Parliament and of the Council (see recital 11). 
22 In that context, the Corte costituzionale finds it necessary to clarify whether 
Article 14(3) of Directive 2003/6/EC and Article 30(1)(b) of Regulation (EU) 
No 596/2014 must be interpreted as permitting Member States to refrain from 
penalising individuals who refuse to answer questions put to them by the 
competent authorities and which might establish their liability for an offence that 
is punishable by criminal sanctions or administrative sanctions of a ‘punitive’ 
nature. In that regard, it mentions in particular the words ‘in conformity with [the] 
national law’ of the Member States, appearing in Article 14(1) of the directive, 
and the words ‘in accordance with national law’, appearing in Article 30(1) of the 
regulation, which appear to address the need to maintain, in any event, the 
standards of protection of fundamental rights afforded by the legal systems of the 
Member States, where they are higher than those under EU law.