Analysis of Ruling Order No. 10922 of 2024: Procedural Defects and Administrative Sanctions

The recent Order No. 10922 of April 23, 2024, issued by the Court of Cassation, offers important food for thought regarding administrative sanctions in the financial intermediation sector. In particular, it discusses the applicability of Article 21-octies of Law No. 241 of 1990, which introduces significant changes regarding the relevance of procedural defects.

The Regulatory Framework

The central regulatory reference is Article 195 of Legislative Decree No. 58 of 1998, which establishes the procedures for the application of sanctions by Consob. The order emphasizes that, following the entry into force of Article 21-octies, paragraph 2, of Law No. 241 of 1990, defects in the administrative procedure are no longer considered relevant. This is particularly significant, as it establishes a clear distinction between the mandatory nature of the sanctioning measure and possible formal errors that may arise during the procedure.

Implications of the Ruling

The Court has declared that, due to the mandatory nature of the sanctioning measure, any procedural defects cannot affect the validity of the sanction. This means that sanctions imposed by Consob remain valid even in the presence of procedural irregularities. Some key points arising from the order include:

• The rule is procedural in nature and can be applied retroactively to ongoing opposition proceedings.
• The decision strengthens the stability and certainty of law in the financial intermediation sector.
• The sanctioning measure retains its unalterable content, regardless of formal defects.

Financial intermediation - Consob procedure pursuant to art. 195 of Legislative Decree No. 58 of 1998 - Procedural defects - Relevance - Exclusion - Basis - Art. 21-octies of Law No. 241 of 1990 - Procedural rule - Pending opposition proceedings - Applicability.

Conclusions

In conclusion, Order No. 10922 of 2024 represents a milestone in the jurisprudence concerning financial intermediation. It clarifies how procedural defects cannot compromise the validity of imposed sanctions, thus ensuring greater certainty for operators in the sector. This approach may influence defense strategies in similar cases, inviting a more careful reflection on the rights and duties of the parties involved.