No. 67 - Penal Protection of Supervisory Activity

Vai alla versione italiana Site Search

by Olina Capolino and Raffaele D'AmbrosioOctober 2009

The possibility of having truthful information on persons subject to supervision is crucially important for the effective performance of supervisory activity. An authority that receives false information and bases its assessments thereon is not in a position to adopt prompt measures appropriate to the case. This prejudices achievement of the objectives of public interest entrusted to its care.

At times of economic and financial crisis, there is an increased risk that persons subject to supervision will provide supervisory authorities and the market with false information, in order to hide other economic crimes and prevent the emergence of difficulties that  if known  could lead to the adoption of measures unfavourable to them.

Adequate protection of the truthfulness of information transmitted to the supervisory authorities, including by means of penal sanctions, is therefore necessary to allow the authorities to perform their functions effectively and, indirectly, to ensure the public interests involved are safeguarded.

In the current Italian legal system there are various provisions that make false corporate disclosures and obstructing supervisory activity an offence. The aim of this legal research paper is to provide, by examining the historical evolution of the criminal offence of obstructing the performance of the functions of supervisory authorities in the various segments of the financial market, an analysis of the main questions in the penal protection of supervisory functions.

The analysis focuses on the identification of the legal good protected, the public authorities involved, the activities that are the object of the penal protection and the persons responsible for the obstruction of supervision. The paper then goes on to examine the various types of crime referred to in Article 2638 of the Civil Code, the relationships with the other crimes in the field of banking and finance and the problem of the boundary line between penal and administrative protection of supervisory activity.

The special attention paid in the work to Article 2638 of the Civil Code is due to the general nature of the provision, since the crimes considered involve the protection of the functions of all the "public supervisory authorities". These crimes, moreover, by contrast with those reformulated by the revision of company law, may be proceeded against on the judiciary's own authority and are subject to more severe punishments.

The location of the provision in the Civil Code may appear inappropriate, since it applies to a broader range of persons than those subject to company law. Moreover, the aim of unitary protection cannot be said to have been achieved, since other specific crimes exist in the sectoral laws. Regardless of these objections and of the interpretative and applicative problems addressed in the paper, there remains the undeniable importance of the presence in the law of a provision of a general nature protecting the performance of the functions of supervisory authorities to safeguard collective interests of constitutional importance.

The discussion of all the above themes is followed by a broad survey of court rulings, in large part unpublished, on the rules that over the years have been introduced into Italian law to protect the performance of the functions of supervisory authorities in the banking and financial market.

Full text