CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 janvier 2024

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The applications concern the failure to retrospectively apply the more favourable criminal law in respect of sanctions – domestically qualified as “administrative sanctions” rather than “penalties” – following amendments. The domestic authorities imposed several administrative sanctions on the applicants. Pending the proceedings, the provisions on which the sanctions were based were amended either by limiting the grounds for responsibility or by modifying the amount of the fine, as detailed in the table. The applicants allege a violation of Article 7 of the Convention with regard to the refusal by domestic authorities to retrospectively apply the more favourable criminal law with regard to the administrative sanctions. In respect of applications nos. 31115/12, 44176/19, 33505/19, 8544/21, 10090/23, 10553/23, 17778/23, 17945/23 and 18168/23, the applicants also allege violations of other provisions of the Convention as detailed in the table.     QUESTIONS TO THE PARTIES Concerning all applications 1.     Is Article 7 applicable to the present cases? In particular, did the sanctions imposed by domestic authorities fall within the concept of “penalty” under Article 7 of the Convention ( G.I.E.M. S.r.l. and Others v.   Italy [GC], nos. 1828/06 and 2 others, §§ 210-1, 28 June 2018 and Grande Stevens and Others v. Italy , nos. 18640/10 and 4 others, §§ 94-101, 4 March 2014)? 2.     If so, did the domestic authorities carry out an adequate assessment of the applicability of the lex mitior principle to the administrative sanctions adopted in the present cases (compare Sinan Çetinkaya and Ağyar Çetinkaya v. Turkey , no. 74536/10, § 42, 24 May 2022)? 3.     In the affirmative, did the domestic authorities apply the more favourable criminal law as prescribed by Article   7 of the Convention ( Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 107-9, 17 September 2009; Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, § 66, ECHR 2013 (extracts); Sinan Çetinkaya and Ağyar Çetinkaya v. Turkey , cited above)? Concerning applications nos. 10090/23, 10553/23, 17778/23, 17945/23 and 18168/23 4.     Has the applicant company exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, in respect of all the complaints raised? Notably, which avenues were available and effective under the domestic law in the context of the applicant’s complaints (compare inter alia judgments nos. 16717/2004 and 10833/2020 of the Court of Cassation; and contrast judgments nos. 18988/2015 and 1845/2018 of the Court of Cassation)? 5.     Did the applicant company have a fair trial, in accordance with Article 6 § 1 of the Convention? In particular, has the principle of legal certainty been respected, in light of the alleged divergence in the case-law of the Court of Cassation as regards the joint and several liability of the rental car company for road-traffic offences committed by the drivers or lessees of the rented vehicles ( Lupeni Greek Catholic Parish and others v. Romania [GC], no.   76943/11, § 116, 29 November 2016, Nejdet Şahin and Perihan Şahin v.   Turkey [GC], no. 13279/05, § 49-58, 20 October 2011, and Hayati Çelebi and others v. Turkey , no. 582/05, § 52, 9 February 2016)? The parties are invited to submit references to the relevant domestic case ‑ law, where available.     Concerning application no. 31115/12 6.     Did the applicants have a fair hearing, in accordance with Article 6 § 1 of the Convention? In particular, did judgment no. 24329 of 21   November   2011 adequately state the reasons on which it was based (see   Ruiz   Torija   v.   Spain , 9 December 1994, §§ 25‑30, Series A no. 303-A)? 7.     If Article 7 is applicable in the present case and in light of the domestic courts’ and of the Court of Justice of the European Union’s case-law at the material time, did the conduct for which the applicant was sanctioned constitute an offence under the national law, as envisaged by Article 7 of the Convention? In particular, was the interpretation of Article 5 §§ 2 and 6 of Law no. 119/2003 adopted by domestic courts in respect of the applicant reasonably foreseeable at the material time ( see Del Río Prada v. Spain [GC], no. 42750/09, §§ 77-80 and 91-93, ECHR 2013; compare Žaja v. Croatia , no.   37462/09, § 103, 4 October 2016)? 8.     Did the sanction imposed on the applicant constitute an interference with the peaceful enjoyment of his possessions within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was the sanction proportionate to the aim pursued (see, mutatis mutandis , G.I.E.M. S.r.l. and Others v. Italy [GC], cited above, §§ 302-4)? Concerning applications nos. 33505/19, 44176/19 and 8544/21 9.     Is Article 6 of the Convention under its criminal head applicable to the proceedings in the present case ( Ezeh and Connors v. the United Kingdom   [GC],   nos.   39665/98   and   40086/98, §§ 82-86, ECHR 2003 ‑ X)? 10.     If so, was the principle of the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the proceedings against the applicants? In particular, did Article 3 of Law no. 689/1981 as interpreted under the domestic case-law, allegedly reversing the burden of proof, comply with that principle ( Barberà, Messegué and Jabardo v. Spain , 6   December 1988, §   77, Series A no. 146;   Telfner v. Austria , no. 33501/96, §   15, 20 March 2001; Salabiaku v. France , 7 October 1988,   §§ 27-28, Series A no. 141-A; and   Klouvi v. France , no.   30754/03, § 41, 30 June 2011)? 11.     If Article 7 is applicable to the present case, did the domestic authorities require, for the purposes of punishment, a mental link disclosing an element of liability in the conduct of the perpetrators of the offence, in accordance with Article 7 of the Convention (see G.I.E.M   S.R.L. and Others v. Italy [GC], cited above, §§ 241-46 and Yüksel   Yalçınkaya v. Türkiye [GC], no.   15669/20, § 242, 26 September 2023)?     APPENDIX List of cases No. Application no. Case name Introduction date Applicant’s name Year of birth / Registration date Place of residence Nationality Representative’s name Location Domestic proceedings Relevant provisions Other admissible complaints 1. 31115/12 Maero v. Italy 11/05/2012 Denis MAERO 1972 Saluzzo Italian Mariano PROTTO Rome Proceedings before the administrative authority Province of Torino Role of the applicant : legal representative of the s.c.a.r.l. Cooperativa Latte Savoia Sei Relevant conduct : violation of Article 5 §§ 2 and 6, Law Decree no. 49/2003 converted into Law no. 119/2003, imposing (a) the transmission to Region and Province of data relating to deliveries of milk (b) the duty to withhold the additional levy for milk delivered in excess and (c) the payment of the withheld amounts to the Agency of disbursements in agriculture ( Agenzia per le Erogazioni in Agricoltura ). Decision no. 438294 09/12/2004 Fine: 17,810,441.08 EUR Decision no. 75369 03/03/2005 Fine: 5,811,977.17 EUR Decision no. 6845/2005 11/01/2005 Fine: 5,729,827.77 EUR Proceedings before judicial authority Alba District Court R.G. nos. 3004/2005, 3028/2005, 3071/2005 Judgment no. 119/2005 20/09/2005 Court of Cassation R.G. no. 11583/2006 Judgment no. 24329/2011 21/11/2011 Provision imposing the fine: Article 5 § 5 of Law Decree no. 49/2003, as converted into Law no. 119/2003 with amendments, imposing a fine equal to the amount of the levy. Previous version of the provision : Article 5 § 5 of Law Decree no. 49/2003, before its conversion into Law no. 119/2003 with amendments, imposing a fine proportional to the levy and, in any case, between 5,000 and 50,000 EUR. Amendment : Article 5 § 5 of Law Decree no. 49/2003 as amended by Article 2 § 1 of Law Decree no. 22/2005, imposing a fine proportional to the levy and, in any case, between 1,000 and 100,000 EUR. Article 7: the applicant complains about the lack of legal certainty and foreseeability of the sanction imposed, claiming that national courts adopted different interpretations in relation to the duty to withhold the additional levy for milk delivered in excess. In particular, the applicant refers to the case-law of the Court of Cassation (judgments nos. 26434/2006 and 27180/2007 of the Plenary) which stated that there was no obligation to withhold the additional levy, but only a mere option to do so. The above-mentioned judgments were explicitly based on the European Court of Justice judgment of 29/04/1999 (Case C-288/97), according to which Council Regulation No 3950/92 should be interpreted in the sense that purchasers do not have an obligation to withhold the additional levy. In the applicant’s case, the Court of Cassation interpreted the domestic provisions in the sense that such an obligation exists (Court of Cassation judgments nos. 1236/2002 and 17106/2006).   Article 6: the applicant complains that the courts failed to provide proper reasoning. In particular, the applicant complains that the Court of Cassation failed to make reference to the alleged divergencies in the case law concerning the existence of an obligation to withhold the additional levy and to reason its choice to adopt an interpretation rather than the other ( Moreira Ferreira v. Portugal (no. 2) [GC], 2017, § 84 and Atanasovski v. the former Yugoslav Republic of Macedonia , no. 36815/03, § 38, 14 January 2010 ).   Article 1 Protocol no. 1: the applicant complains that the sanction was disproportionate as the provision applied did not allow for it to be determined between a minimum and a maximum amount. 2. 62494/14 F.lli Grillo S.N.C. Di Grillo Placido E Sebastiano v. Italy 05/09/2014 F.LLI GRILLO S.N.C. DI GRILLO PLACIDO E SEBASTIANO 1981 Rometta Marea Italian Ferdinando MARULLO DI CONDOJANNI Messina Proceedings before the tax authority Messina Tax Police Supplementary tax assessment proceedings ( processo verbale di costatazione ) no. n./a. 27/04/1999 Relevant conduct : VAT evasion 1) tax assessment notice no. 840997 of 06/12/1999 2) tax assessment notice no. 840998 of 06/12/1999 3) tax assessment notice no. 840999 of 06/12/1999 4) tax assessment notice no. 20013666 of 06/12/1999 Proceedings before judicial authority Provincial Tax Commission of Messina R.G. no. 749/2000 + 3 Judgment no. 347/4/00 16/01/2001 Regional Tax Commission of Palermo (Section of Messina) R.G. no. 837/02 Judgment no. 99/2/06 11/10/2006   Court of Cassation R.G. no. 30043/2007 Judgment no. 1860/2014 29/01/2014 Provision imposing the fine: section 41 §6 of the Decree of the President of the Republic no. 633 of 26 October 1972 Amendments : abrogation of section 41 §6 of the Decree of the President of the Republic no. 633 of 26 October 1972 and replacement of the sanction regime with exclusion of VAT recollection by articles 6 §8 and 16 §1(a) of Legislative Decree no. 471/1997 as interpreted by the Court of Cassation in judgments nos. 26126 and 26127 of 27/12/2010.   3. 27178/19 Bignami v. Italy 20/05/2019 Enrico Maria BIGNAMI 1957 Milan Italian Aldo BOZZI Milan Proceedings before the administrative authority CONSOB Role of the applicant : member of the board of statutory auditors of "Telecom Italia S.p.A." Relevant conduct : violation of the duty of vigilance under Article 149 §1(a), (b) and (c) of Legislative Decree no. 58/1998 in respect of the activity of Mr. S. and the relationship between "Telecom Italia S.p.A." and "O.C. S.p.A.". Decision no. 19296 30/07/2015 Fine: 90,000 EUR Proceedings before the judicial authority Milan Court of Appeal R.G. no. 773/2015 Judgment no. 13/2016 24/06/2016 Court of Cassation R.G. no. 1942/2017 Judgment no. 126/2019 07/01/2019 Provision imposing the fine: Article 193 §3(a) of Legislative Decree no. 58/1998 Amendment: Amendment of the sanction regime from 25,000-2,500,000 EUR to 10,000-1,500,000 by Article 5 of Legislative Decree no. 72/2015.   4. 27827/19 Spiniello v. Italy 20/05/2019 Salvatore SPINIELLO 1951 Milan Italian Aldo BOZZI Milan Proceedings before the administrative authority CONSOB Role of the applicant : member of the board of statutory auditors of "Telecom Italia S.p.A." Relevant conduct : violation of the duty of vigilance under Article 149 §1(b) and (c-bis) of Legislative Decree no. 58/1998 in respect of the failure to inform the CONSOB that the press release concerning the issuance of a bond loan had not been approved by the board of directors. Decision no. 19316 07/08/2015 Fine: 55,000 EUR   Proceedings before the judicial authority Milan Court of Appeal R.G. no. 770/2015 Judgment no. 39/2016 16/08/2016 Court of Cassation R.G. no. 3144/2017 Judgment no. 5/2019 03/01/2019 Provision imposing the fine: Article 193 §3(a) of Legislative Decree no. 58/1998 Amendment: Amendment of the sanction regime from 25,000-2,500,000 EUR to 10,000-1,500,000 by Article 5 of Legislative Decree no. 72/2015.   5. 27936/19 Bignami v. Italy 20/05/2019 Enrico Maria BIGNAMI 1957 Milan Italian Aldo BOZZI Milan Proceedings before the administrative authority CONSOB Role of the applicant : member of the board of statutory auditors of "Telecom Italia S.p.A." Relevant conduct : violation of the duty of vigilance under Article 149 §1(b) and (c-bis) of Legislative Decree no. 58/1998 in respect of the failure to inform the CONSOB that the press release concerning the issuance of a bond loan had not been approved by the board of directors. Decision no. 19316 07/08/2015 Fine: 55,000 EUR Proceedings before the judicial authority Milan Court of Appeal R.G. no. 774/2015 Judgment no. 30/2016 18/07/2016 Court of Cassation R.G. no. 1939/2017 Judgment no. 812/2019 15/01/2019 Provision imposing the fine: Article 193 §3(a) of Legislative Decree no. 58/1998 Amendment: Amendment of the sanction regime from 25,000-2,500,000 EUR to 10,000-1,500,000 by Article 5 of Legislative Decree no. 72/2015.   6. 27938/19 Spiniello v. Italy 20/05/2019 Salvatore SPINIELLO 1951 Milan Italian Aldo BOZZI Milan Proceedings before the administrative authority CONSOB Role of the applicant : member of the board of statutory auditors of "Telecom Italia S.p.A." Relevant conduct : violation of the duty of vigilance under Article 149 §1(a), (b) and (c) of Legislative Decree no. 58/1998 in respect of the activity of Mr. S. and the relationship between "Telecom Italia S.p.A." and "O.C. S.p.A.". Decision no. 19296 30/07/2015 Fine: 90,000 EUR Proceedings before the judicial authority Milan Court of Appeal R.G. no. 772/2015 Judgment no. 29/2016 04/07/2016 Court of Cassation R.G. no. 3160/2017 Judgment no. 33047/18 20/12/2018 Provision imposing the fine: Article 193 §3(a) of Legislative Decree no. 58/1998 Amendment: Amendment of the sanction regime from 25,000-2,500,000 EUR to 10,000-1,500,000 by Article 5 of Legislative Decree no. 72/2015.   7. 33505/19 Pisaneschi v. Italy 12/06/2019 Andrea PISANESCHI 1959 Siena Italian Andrea SACCUCCI Rome Proceedings before the administrative authority Bank of Italy Proceedings no. 908783/13 04/10/2013 Role of the applicant : member of the board for directors of "Monte dei Paschi di Siena". Relevant conduct : (1) failure to provide information and submission of false information to the supervisory body of the Bank of Italy under Articles 51 §1 and 55 §1 of Legislative Decree no. 385/1993; (2) absence of the minimum budget requirement under Article 67 §1(a) of Legislative Decree no. 385/1993; (3) disregard for budget techniques under Article 9 §1 of Legislative Decree no. 38/2005 and Articles 5 §1 and 45 of Legislative Decree no. 87/1992. Decision no. 493/2013 08/10/2013 Fine: 129,000 EUR Proceedings before judicial authority Rome Court of Appeal R.G. no. 4375/2015 Judgment no. 5208/2016 05/09/2016 Court of Cassation R.G. no. 6132/2017 Judgment no. 32135/2018 12/12/2018 Provision imposing the fine: Article 144 of Legislative Decree no.   385/1993 Amendments: (a) introduction of Article 144-ter of Legislative Decree no. 385/1993 by Article   1 §52 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 144 of Legislative Decree no. 385/1993 (including Articles 51, 55 and 67 of the decree), and limiting to specific cases of the responsibility of members of the company’s bodies. (b) introduction of Article 144-quarater of Legislative Decree no. 385/1993 by Article   1 §52 of Legislative Decree no. 72/2015 introducing a list of relevant criteria to determine the amount of the fine. Article 7: the applicant complains of the failure by the domestic courts to duly assess and establish a mental link between the conduct and the offence committed.   Article 6 § 2: the applicant complains that domestic courts, in applying the presumption set by Article 3 of Law no.   689/1981, shifted the burden of proof on the defence. 8. 44176/19 Pisaneschi and Others v. Italy 09/08/2019 Andrea PISANESCHI 1959 Siena Italian Fabio BORGHI 1952 Castelnuovo Berardenga Italian Graziano COSTANTINI 1955 Siena Italian Alfredo MONACI 1955 Siena Italian Ernesto RABIZZI 1940 Sine Italian Andrea SACCUCCI Rome Proceedings before the administrative authority CONSOB proceedings no. 20131876-11216/2014 n./a. Role of the applicants : members of the board of directors of "Monte dei Paschi di Siena". Relevant conduct : violation of duty to provide the public with prospectus in case of offer of stocks under Article 94 §1-2 of Legislative Decree no. 58/1998 with regard to operation “Fresh 2008” and other connected activities. Decision no. 18924 2105/2014 Fines Pisaneschi: 55,000 EUR Borghi: 55,000 EUR Costantini: 45,000 EUR Monaci: 45,000 EUR Rabizzi: 50,000 EUR Proceedings before the judicial authority Florence Court of Appeal R.G. no. 443/2014 Decision no. 692/2016 27/04/2016 Court of Cassation R.G. no. 27685/2016 Judgment no. 4099/2019 12/02/2019 Provision imposing the fine: Article 190 §1 of Legislative Decree no.   58/1998 Amendments: (a) amendment of Article 190 §1 of Legislative Decree no. 58/1998 and introduction of Article 190-bis of Legislative Decree no. 58/1998 by respectively by Article 5 §§4 and 5 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 190 of Legislative Decree no. 58/1998, and limiting to specific cases of the responsibility of members of the company’s bodies. (b) introduction of Article 194-bis of Legislative Decree no. 58/1998 by Article 5 §5 of Legislative Decree no. 72/2015 introducing a list of relevant criteria to determine the amount of the fine. Article 7: the applicants complain of the failure by the domestic courts to duly assess and establish a mental link between the conduct and the offence committed.   Article 6 § 2: the applicants complain that domestic courts, in applying the presumption set by Article 3 of Law no. 689/1981, shifted the burden of proof on the defence. 9. 48355/19 Misseri v. Italy 04/09/2019 Carmelo MISSERI 1956 Floridia Italian Andrea SCUDERI Catania Proceedings before the administrative authority Bank of Italy Proceedings no. 38055/13 14/01/2013 Role of the applicant : member of the board for directors of "Credito Aretuseo Societa’ Cooperativa" Relevant conduct : (1) failure to overview risks and consequences on the financial conditions of the bank under Article 53 §1 (a), (b) and (d); and §3 (d) of Legislative Decree no. 385/1993; (2) failure to provide relevant information to the supervisory body of the Bank of Italy under Article 51 of Legislative Decree no. 385/1993. Decision no. 557/2013 12/11/2013 Fine: 22,000 EUR Proceedings before judicial authority Rome Court of Appeal R.G. no. 50085/2015 Decision no. 1884/2016 23/02/2016 Court of Cassation R.G. no. 22114/2016 Judgment no. 6239/2019 04/03/2019 Provision imposing the fine: Article 144 of Legislative Decree no. 385/1993 Amendment: introduction of Article 144-ter and 144-quater of Legislative Decree no. 385/1993 by Article 1 §52 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 144 of Legislative Decree no. 385/1993 (including Article 53 of the decree), and limiting to specific cases of the responsibility of members of the company’s bodies.   10. 55251/19 Gorgoni v. Italy 10/10/2019 Lorenzo GORGONI 1942 Cutrofiano Italian Francesco CARBONETTI Rome Proceedings before the administrative authority CONSOB Proceedings no. 20043581/2 18/05/2004 Role of the applicant : vice-president, president, member of the executive committee and member of the board of directors of "Banca 121". Relevant conduct : violation of Articles 21 §1(a) and (d) of Legislative Decree no. 58/1998 and Sections 56, 26 §1(e), 28, 29, 32, 60 and 69 of CONSOB regulation no. 11522/1998 in respect of the issuance of financial products hiding information to the clients with a view to ensure earnings to the bank. Decision no. 59326 by the Ministry of Economy and Finance 30/05/2005 Fine: 133,600 EUR Proceedings before judicial authority Lecce Court of Appeal R.G. no. 205/2005 Decision no. 4823/2006 06/06/2006 Court of Cassation R.G. no. 21105/2007 +1 Judgment no. 25824/11 02/12/2011 Lecce Court of Appeal R.G. no. 1601/2012 Decision no. 2017/2016 28/09/2016 Court of Cassation R.G. no. 7585/2017 Judgment no. 10179/2019 11/04/2019 Provision imposing the fine: Article 190 §1 of Legislative Decree no. 58/1998 Amendments: (a) amendment of Article 190 §1 of Legislative Decree no. 58/1998 and introduction of Article 190-bis of Legislative Decree no. 58/1998 by respectively by Article 5 §§4 and 5 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 190 of Legislative Decree no. 58/1998, and limiting to specific cases of the responsibility of members of the company’s bodies. (b) introduction of Article 194-bis of Legislative Decree no. 58/1998 by Article   5   §5 of Legislative Decree no. 72/2015 introducing a list of relevant criteria to determine the amount of the fine.   11. 10497/20 Di Tanno v. Italy 08/02/2020 Tommaso DI TANNO 1949 Rome Italian Eugenio BRUTI LIBERATI Milan Proceedings before the administrative authority CONSOB Proceedings no. n./a. 19/04/2013 Role of the applicant : president of the board of statutory auditors of bank "Monte dei Paschi di Siena". Relevant conduct : (1) failure to identify and manage conflicts of interest raised by the issuance of “Casaforte” stocks in breach of Article 21 §1-bis (a) of Legislative Decree no. 58/1998 and Articles 23 and 25 of the Regulation of the Bank of Italy and CONSOB of 29 October 2007; (2) failure to adopt procedural safeguards to overview the adequacy of specific financial activities and repeated commission of irregularities in their enforcement in breach of Article 21 §1 (d) of Legislative Decree no. 58/1998 in conjunction with Article 15 of the Regulation of the Bank of Italy and CONSOB, Article 21 §1 (a) of Legislative Decree no. 58/1998 and Articles 39 and 40 of the CONSOB Regulation no. 16190 of 29 October 2007; (3) failure to adopt a stable and coherent mechanism to overview stocks’ pricing in breach of Article 21 §1 (a) of Legislative Decree no. 58/1998 in conjunction with Article 21 §1 (d) of the same Decree and Article 15 §1 of the Regulation of the Bank of Italy and CONSOB of 29 October 2007. Decision no. 18856/14 09/04/2014 Fine: 135,000 EUR Proceedings before judicial authority Florence Court of Appeal R.G. no. 369/2014 Decision no. 1133/2016 09/07/2016 Court of Cassation R.G. no. 155/2017 Judgment no. 21171/2019 08/08/2019 Provision imposing the fine: Article 190 §1 of Legislative Decree no. 58/1998 Amendments: (a) amendment of Article 190 §1 of Legislative Decree no. 58/1998 and introduction of Article 190-bis of Legislative Decree no. 58/1998 by respectively by Article 5 §§4 and 5 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 190 of Legislative Decree no. 58/1998, and limiting to specific cases of the responsibility of members of the company’s bodies. (b) introduction of Article 194-bis of Legislative Decree no. 58/1998 by Article 5 §5 of Legislative Decree no. 72/2015 introducing a list of relevant criteria to determine the amount of the fine.   12. 10967/20 Gorgoni v. Italy 18/02/2020 Lorenzo GORGONI 1942 Cutrofiano Italian Francesco CARBONETTI Rome Proceedings before the administrative authority CONSOB Proceedings no. n./a. 19/04/2013 Role of the applicant : member of the board of directors of bank "Monte dei Paschi di Siena". Relevant conduct : (1) failure to identify and manage conflicts of interest raised by the issuance of “Casaforte” stocks in breach of Article 21 §1-bis (a) of Legislative Decree no. 58/1998 and Articles 23 and 25 of the Regulation of the Bank of Italy and CONSOB of 29 October 2007; (2) failure to adopt procedural safeguards to overview the adequacy of specific financial activities and repeated commission of irregularities in their enforcement in breach of Article 21 §1 (d) of Legislative Decree no. 58/1998 in conjunction with Article 15 of the Regulation of the Bank of Italy and CONSOB, Article 21 §1 (a) of Legislative Decree no. 58/1998 and Articles 39 and 40 of the CONSOB Regulation no. 16190 of 29   October   2007; (3) failure to adopt a stable and coherent mechanism to overview stocks’ pricing in breach of Article 21 §1 (a) of Legislative Decree no. 58/1998 in conjunction with Article 21 §1 (d) of the same Decree and Article 15 §1 of the Regulation of the Bank of Italy and CONSOB of 29 October 2007. Decision no. 18856/14 09/04/2014 Fine: 150,000 EUR Proceedings before judicial authority Florence Court of Appeal R.G. no. 340/2014 Decision no. 1123/2016 08/07/2016 Court of Cassation R.G. no. 4189/2017 Judgment no. 16326/2019 18/06/2019 Provision imposing the fine: Article 190 §1 of Legislative Decree no. 58/1998 Amendments: (a) amendment of Article 190 §1 of Legislative Decree no. 58/1998 and introduction of Article 190-bis of Legislative Decree no. 58/1998 by respectively by Article 5 §§4 and 5 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 190 of Legislative Decree no. 58/1998, and limiting to specific cases of the responsibility of members of the company’s bodies. (b) introduction of Article 194-bis of Legislative Decree no. 58/1998 by Article 5 §5 of Legislative Decree no. 72/2015 introducing a list of relevant criteria to determine the amount of the fine.   13. 16000/20 Campaini v. Italy 17/03/2020 Turiddo CAMPAINI 1940 Empoli Italian Francesco CARBONETTI Rome Proceedings before the administrative authority CONSOB Proceedings no. n./a. 19/04/2013 Role of the applicant : vice-president of the board of directors of bank "Monte dei Paschi di Siena". Relevant conduct : (1) failure to identify and manage conflicts of interest raised by the issuance of “Casaforte” stocks in breach of Article 21 §1-bis (a) of Legislative Decree no. 58/1998 and Articles 23 and 25 of the Regulation of the Bank of Italy and CONSOB of 29   October 2007; (2) failure to adopt procedural safeguards to overview the adequacy of specific financial activities and repeated commission of irregularities in their enforcement in breach of Article 21 §1 (d) of Legislative Decree no. 58/1998 in conjunction with Article 15 of the Regulation of the Bank of Italy and CONSOB, Article 21 §1 (a) of Legislative Decree no. 58/1998 and Articles 39 and 40 of the CONSOB Regulation no. 16190 of 29   October   2007; (3) failure to adopt a stable and coherent mechanism to overview stocks’ pricing in breach of Article 21 §1 (a) of Legislative Decree no. 58/1998 in conjunction with Article 21 §1 (d) of the same Decree and Article 15 §1 of the Regulation of the Bank of Italy and CONSOB of 29 October 2007. Decision no. 18856/14 09/04/2014 Fine: 150,000 EUR Proceedings before judicial authority Florence Court of Appeal R.G. no. 342/2014 Decision no.1128/2016 08/07/2016 Court of Cassation R.G. no. 3658/2017 Judgment no. 24080/2019 26/09/2019 Provision imposing the fine: Article 190 §1 of Legislative Decree no. 58/1998 Amendments: (a) amendment of Article 190 §1 of Legislative Decree no. 58/1998 and introduction of Article 190-bis of Legislative Decree no. 58/1998 by respectively by Article 5 §§ 4 and 5 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 190 of Legislative Decree no. 58/1998, and limiting to specific cases of the responsibility of members of the company’s bodies. (b) introduction of Article 194-bis of Legislative Decree no. 58/1998 by Article 5 §5 of Legislative Decree no. 72/2015 introducing a list of relevant criteria to determine the amount of the fine.   14. 50950/20 Trulli v. Italy 06/11/2020 Stefano TRULLI 1968 Cinto Caomaggiore Italian Andrea CONSELVAN Treviso Proceedings before the administrative authority CONSOB Proceedings no. 41776/2016 29/02/2016 Relevant conduct : violation of Article 18 §1 of Legislative Decree no. 58/1998, ruling professional investment services with the public. Decision no. 19753 05/10/2016 Fine: 80,000 EUR Proceedings before the judicial authority Venice Court of Appeal R.G. no. 16/2017 Judgment no. 22/2017 26/05/2017 Court of Cassation R.G. no. 455/2018 Judgment no. 8787/2020 12/05/2020 Provision imposing the fine: Article 190 §1 of Legislative Decree no.   58/1998 Amendment: Amendment to Article 190 §1 of Legislative Decree no. 58/1998 by Article 5 of Legislative Decree no. 72/2015, abrogating the sanction in case of violation of Article 18 §1 of Legislative Decree no.   58/1998.   15. 53801/20 Costantini and Gorgoni v. Italy 20/11/2020 Graziano COSTANTINI 1955 Siena Italian Lorenzo GORGONI 1942 Cutrofiano Italian Andrea SACCUCCI Rome Proceedings before the administrative authority Bank of Italy Proceedings no. 689034/13 19/07/2013 Role of the applicants : members of the board of directors and of the committee for remuneration of "Monte dei Paschi di Siena" Relevant conduct : violation of the regulations ruling policies and practices in respect of remuneration and incentives under Article 53 §1(d) of Legislative Decree no. 385/1993. Decision no. 399/2013 23/07/2013 Fine: 129,110 EUR Proceedings before judicial authority Rome Court of Appeal R.G. no. 5611/2015 Decision no. 4059/2017 26/04/2017 Court of Cassation R.G. no. 28309/2017 Judgment no. 9371/2020 21/05/2020 Provision imposing the fine: Article 144 of Legislative Decree no. 385/1993 Amendment: Introduction of Article 144-ter and 144-quater of Legislative Decree no. 385/1993 by Article 1 §52 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 144 of Legislative Decree no. 385/1993, and limiting to specific cases of the responsibility of members of the company’s bodies.   16. 8544/21 Coccheri v. Italy 27/01/2021 Lucia COCCHERI 1950 Poggibonsi Italian Andrea SACCUCCI Rome Proceedings before the administrative authority Bank of Italy Proceedings no. 908783/13 04/10/2013 Role of the applicant : member of the board of directors of "Monte dei Paschi di Siena". Relevant conduct : (1) failure to provide information and submission of false information to the supervisory body of the Bank of Italy under Articles 51 §1 and 55 §1 of Legislative Decree no. 385/1993; (2) absence of the minimum budget requirement under Article 67 §1(a) of Legislative Decree no. 385/1993; (3) disregard for budget techniques under Article 9 §1 of Legislative Decree no. 38/2005 and Articles 5 §1 and 45 of Legislative Decree no. 87/1992. Decision no. 493/2013 08/10/2013 Fine: 116,500 EUR Proceedings before judicial authority Rome Court of Appeal R.G. no. 4379/2015 Judgment no. 2022/2017 27/03/2017 Court of Cassation R.G. no. 26018/2017 Judgment no.16517/2020 31/07/2020 Provision imposing the fine: Article 144 of Legislative Decree no.   385/1993 Amendments: (a) introduction of Article 144-ter of Legislative Decree no. 385/1993 by Article 1 §52 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 144 of Legislative Decree no. 385/1993 (including Articles 51, 55 and 67 of the decree), and limiting to specific cases of the responsibility of members of the company’s bodies. (b) introduction of Article 144-quarater of Legislative Decree no. 385/1993 by Article   1 §52 of Legislative Decree no.   72/2015 introducing a list of relevant criteria to determine the amount of the fine. Article 7: the applicant complains of the failure by the domestic courts to duly assess and establish a mental link between the conduct and the offence committed.   Article 6 § 2: the applicant complains that domestic courts, in applying the presumption set by Article 3 of Law no.   689/1981, shifted the burden of proof on the defence. 17. 11678/21 Campaini v. Italy 19/02/2021 Turiddo CAMPAINI 1940 Empoli Italian Andrea SACCUCCI Rome Proceedings before the administrative authority Bank of Italy Proceedings no. 689034/13 19/07/2013 Role of the applicant : member of the board of directors of "Monte dei Paschi di Siena" Relevant conduct : violation of the regulations ruling policies and practices in respect of remuneration and incentives under Article 53 §1(d) of Legislative Decree no. 385/1993. Decision no. 399/2013 23/07/2013 Fine: 90,000 EUR   Proceedings before judicial authority Rome Court of Appeal R.G. no. 4374/2015 Judgment no. 10188/2016 02/12/2016 Court of Cassation R.G. no. 1001/2018 Judgment no. 17291/2020 19/08/2020 Provision imposing the fine: Article 144 of Legislative Decree no. 385/1993 Amendment: Introduction of Article 144-ter and 144-quater of Legislative Decree no. 385/1993 by Article 1 §52 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 144 of Legislative Decree no. 385/1993, and limiting to specific cases of the responsibility of members of the company’s bodies.   18. 24963/21 Monaci v. Italy 20/04/2021 Alfredo MONACI 1955 Siena Italian Andrea SACCUCCI Rome Proceedings before the administrative authority Bank of Italy Proceedings no. 689034/13 19/07/2013 Role of the applicants : member of the board of directors of "Monte dei Paschi di Siena" Relevant conduct : violation of the regulations ruling policies and practices in respect of remuneration and incentives under Article 53 §1(d) of Legislative Decree no. 385/1993. Decision no. 399/2013 23/07/2013 Fine: 90,000 EUR Proceedings before judicial authority Rome Court of Appeal R.G. no. 4372/2015 Judgment no. 8038/2017 21/12/2017 Court of Cassation R.G. no. 19774/2020 Judgment no. 23554/2020 27/10/2020 Provision imposing the fine: Article 144 of Legislative Decree no.   385/1993 Amendment: Introduction of Articles 144-ter and 144-quater of Legislative Decree no. 385/1993 by Article 1 §52 of Legislative Decree no. 72/2015, maintaining the responsibility of the company for breaches of the provisions listed under Article 144 of Legislative Decree no. 385/1993, and limiting to specific cases of the responsibility of members of the company’s bodies.   19. 27214/22 Bianchi v. Italy 23/05/2022 Alessandro BIANCHI 1944 Verona Italian Gianluca ROMAGNOLI Padua Proceedings before the administrative authority CONSOB Proceedings no. 43518/2016 01/04/2016 Role of the applicant : member of the board of directors of the bank "Banca Popolare di Vicenza". Relevant conduct : public offering of shares without the prior publication of a prospectus as required by Article 94 § 1 of Legislative Decree no. 58/1998 Decision no. 19934/2017 30/03/2017 Fine: 100,000 EUR Proceedings before judicial authority Venice Court of Appeal R.G. no. 470/2017 Judgment no. 52/2018 03/05/2018 Court of Cassation R.G. no. 35194/2018 Judgment no. 1770/2022 20/01/2022 Provision imposing the fine: Article 191 § 1 of Legislative Decree no. 58/1998, establishing an administrative fine ranging from 100,000 to 2 million EUR for violations of Art. 94 of Legislative Decree no. 58/1998. Amendment: a) Introduction of Article 190-bis of Legislative Decree no. 58/1998, by Article   5 § 5 of Legislative Decree no 72/2015, limiting the responsibility of members of the bank’s body to specific cases; b) Amendment of Article 191 § 1 of Legislative Decree no. 58/1998, by Article 5 § 6 of Legislative Decree no. 72/2015, amending the sanction for violation of Article 94 § 1 of Legislative Decree no. 58/1998 to a fine between 25,000 EUR and 5 million EUR; and introduction of Article 191 § 2-bis, by Article 5 § 6 of Legislative Decree no. 72/2015, maintaining the responsibility of the bank for breaches of the provisions listed under Article 191 § 1 of Legislative Decree no. 58/1998 and limiting the responsibility of members of the bank to the cases provided by Art. 190-bis of Legislative Decree no. 58/1998; c) Introduction of Article 194-bis of Legislative Decree no. 58/1998, by Article 5 § 14 of Legislative Decree no. 72/2015, providing a list of relevant criteria to determine the amount of the fine.   20. 28376/22 Breganze de Capnist v. Italy 23/05/2022 Marino BREGANZE DE CAPNIST 1947 Chioggia Italian Gianluca ROMAGNOLI Padua Proceedings before the administrative authority CONSOB Proceedings no. 43518/2016 01/04/2016 Role of the applicant : Vice-President of the board of directors and of the shareholders committee of the bank "Banca Popolare di Vicenza". Relevant conduct : public offering of shares without the prior publication of a prospectus as required by Article 94 § 1 of Legislative Decree no. 58/1998 Decision no. 19934/2017 30/03/2017 Fine: 120,000 EUR Proceedings before judicial authority Venice Court of Appeal R.G. no. 473/2017 Judgment no. 45/2018 03/05/2018 Court of Cassation R.G. no. 34768/2018 Judgment no. 5347/2022 18/02/2022 Provision imposing the fine: Article 191 § 1 of Legislative Decree no. 58/1998, establishing an administrative fine ranging from 100,000 to 2 million EUR for violations of Art. 94 of Legislative Decree no. 58/1998. Amendment: a) Introduction of Article 190-bis of Legislative Decree no. 58/1998, by Article 5 § 5 of Legislative Decree no 72/2015, limiting the responsibility of members of the bank’s body to specific cases; b) Amendment of Article 191 § 1 of Legislative Decree no. 58/1998, by Article 5 § 6 of Legislative Decree no. 72/2015, amending the sanction for violation of Article 94 § 1 of Legislative Decree no. 58/1998 to a fine between 25,000 EUR and 5 million EUR; and introduction of Article 191 § 2-bis, by Article 5 § 6 of Legislative Decree no. 72/2015, maintaining the responsibility of the bank for breaches of the provisions listed under Article 191 § 1 of Legislative Decree no. 58/1998 and limiting the responsibility of members of the bank to the cases provided by Art. 190-bis of Legislative Decree no. 58/1998; c) Introduction of Article 194-bis of Legislative Decree no. 58/1998, by Article 5 § 14 of Legislative Decree no. 72/2015, providing a list of relevant criteria to determine the amount of the fine.   21. 28569/22 Zigliotto v. Italy 01/06/2022 Giuseppe ZIGLIOTTO 1964 Longare Italian Gianluca ROMAGNOLI Padua Proceedings before the administrative authority CONSOB Proceedings no. 43518/2016 01/04/2016 Role of the applicant : member of the board of directors of the bank "Banca Popolare di Vicenza". Relevant conduct : public offering of shares without the prior publication of a prospectus as required by Article 94 § 1 of Legislative Decree no. 58/1998 Decision no. 19934/2017 30/03/2017 Fine: 100,000 EUR Proceedings before judicial authority Venice Court of Appeal R.G. no. 509/2017 Judgment no. 48/2018 03/05/2018 Court of Cassation R.G. no. 36121/2018 Judgment no. 5345/2022 18/02/2022 Provision imposing the fine: Article 191 § 1 of Legislative Decree no. 58/1998, establishing an administrative fine ranging from 100,000 to 2 million EUR for violations of Art. 94 of Legislative Decree no. 58/1998. Amendment: a) Introduction of Article 190-bis of Legislative Decree no. 58/1998, by Article 5 § 5 of Legislative Decree no 72/2015, limiting the responsibility of members of the bank’s body to specific cases; b) Amendment of Article 191 § 1 of Legislative Decree no. 58/1998, by Article 5 § 6 of Legislative Decree no. 72/2015, amending the sanction for violation of Article 94 § 1 of Legislative Decree no.   58/1998 to a fine between 25,000 EUR and 5 million EUR; and introduction of Article 191 § 2-bis, by Article 5 § 6 of Legislative Decree no. 72/2015, maintaining the responsibility of the bank for breaches of the provisions listed under Article 191 § 1 of Legislative Decree no. 58/1998 and limiting the responsibility of members of the bank to the cases provided by Art. 190-bis of Legislative Decree no.   58/1998; c) Introduction of Article 194-bis of Legislative Decree no. 58/1998, by Article 5 § 14 of Legislative Decree no. 72/2015, providing a list of relevant criteria to determine the amount of the fine.   22. 30029/22 Breganze de Capnist v. Italy 06/06/2022 Marino BREGANZE DE CAPNIST 1947 Chioggia Italian Gianluca ROMAGNOLI Padua Proceedings before the administrative authority CONSOB Proceedings no. 43144/2016 29/03/2016 Role of the applicant : Vice-President of the board of directors and member of the shareholders committee of the bank "Banca Popolare di Vicenza". Relevant conduct : failure to adopt adequate procedures in assessing the adequacy of operations; irregular behaviour in the financing granted to customers for the purchase of own shares, which led to an alteration of the investment decision-making process by customers; failure to adopt adequate procedures for the management of customer orders; failure to adopt adequate procedures regarding share pricing; incorrect information provided to the Consob following a request for information (Articles 8 and 21 § 1(a) and (d) of Legislative Decree no. 58/1998; Articles 15, 19 and 21 of the Joint Regulations of the Bank of Italy/Consob) Decision no. 19935/2017 30/03/2017 Fine: 155,000 EUR Proceedings before judicial authority Venice Court of Appeal R.G. no. 474/2017 Judgment no. 21/2018 20/03/2018 Court of Cassation R.G. no. 30567/2018 Judgment no. 4519/2022 11/02/2022 Provision imposing the fine: Art. 190 of Legislative Decree no. 58/1998, sanctioning the violation of Articles 8 and 21 TUF and of provisions issued by the Bank of Italy of by Consob with a fine between 2,500 and 250,000 EUR. Amendments: a) Introduction of Article 190-bis of Legislative Decree no. 58/1998, by Article 5 § 5 of Legislative Decree no. 72/2015, limiting the responsibility of members of the bank’s body to specific cases and amending the sanction for violation of Articles 8 and 21 TUF to a fine between 5,000 and 5 million EUR; b) Introduction of Article 194-bis of Legislative Decree no. 58/1998, by Article 5 § 14 of Legislative Decree no. 72/2015, introducing a list of relevant criteria to determine the amount of the fine.   23. 31255/22 Fantoni v. Italy 24/06/2022 Giovanni FANTONI 1956 Gemona del Friuli Italian Gianluca ROMAGNOLI Padua Proceedings before the administrative authority CONSOB Proceedings no. 43144/2016 29/03/2016 Role of the applicant : member of the board of directors of the bank "Banca Popolare di Vicenza". Relevant conduct : failure to adopt adequate procedures in assessing the adequacy of operations; irregular behaviour in the financing granted to customers for the purchase of own shares, which led to an alteration of the investment decision-making process by customers; failure to adopt adequate procedures for the management of customer orders; failure to adopt adequate procedures regarding share pricing; incorrect information provided to the Consob following a request for information (Articles 8 and 21 § 1(a) and (d) of Legislative Decree no. 58/1998; Articles 15, 19 and 21 of the Joint Regulations of the Bank of Italy/Consob) Decision no. 19935/2017 30/03/2017 Fine: 150,000 EUR Proceedings before judicial authority Venice Court of Appeal R.G. no. 524/2017 Judgment no. 118/2018 28/09/2018 Court of Cassation R.G. no. 11180/2019 Judgment no. 5344/2022 18/02/2022 Provision imposing the fine: Art. 190 of Legislative Decree no. 58/1998, sanctioning the violation of Articles 8 and 21 TUF and of provisions issued by the Bank of Italy of by Consob with a fine between 2,500 and 250,000 EUR. Amendments: a) Introduction of Article 190-bis of Legislative Decree no. 58/1998, by Article 5 § 5 of Legislative Decree no. 72/2015, limiting the responsibility of members of the bank’s body to specific cases and amending the sanction for violation of Articles 8 and 21 TUF to a fine between 5,000 and 5 million EUR; b) Introduction of Article 194-bis of Legislative Decree no. 58/1998, by Article 5 § 14 of Legislative Decree no. 72/2015, introducing a list of relevant criteria to determine the amount of the fine.   24. 31849/22 Tognana v. Italy 15/06/2022 Nicola TOGNANA 1952 Treviso Italian Gianluca ROMAGNOLI Padua Proceedings before the administrative authority CONSOB Proceedings no. 43144/2016 29/03/2016 Role of the applicant : member of the board of directors of the bank "Banca Popolare di Vicenza". Relevant conduct : failure to adopt adequate procedures in assessing the adequacy of operations; irregular behaviour in the financing granted to customers for the purchase of own shares, which led to an alteration of the investment decision-making process by customers; failure to adopt adequate procedures for the management of customer orders; failure to adopt adequate procedures regarding share pricing; incorrect information provided to the Consob following a request for information (Articles 8 and 21 § 1 (a) and (d) of Legislative Decree no. 58/1998; Articles 15, 19 and 21 of the Joint Regulations of the Bank of Italy/Consob) Decision no. 19935/2017 30/03/2017 Fine: 150,000 EUR Proceedings before judicial authority Venice Court of Appeal R.G. no. 507/2017 Judgment no. 28/2018 22/03/2018 Court of Cassation R.G. no. 31283/2018 Judgment no. 5362/2022 08/02/2022 Provision imposing the fine: Art. 190 of Legislative Decree no. 58/1998, sanctioning the violation of Articles 8 and 21 TUF and of provisions issued by the Bank of Italy of by Consob with a fine between 2,500 and 250,000 EUR. Amendments: a) Introduction of Article 190-bis of Legislative Decree no. 58/1998, by Article 5 § 5 of Legislative Decree no. 72/2015, limiting the responsibility of members of the bank’s body to specific cases and amending the sanction for violation of Articles 8 and 21 TUF to a fine between 5,000 and 5 million EUR; b) Introduction of Article 194-bis of Legislative Decree no. 58/1998, by Article 5 § 14 of Legislative Decree no. 72/2015, introducing a list of relevant criteria to determine the amount of the fine.   25. 36603/22 Zuccato v. Italy 13/07/2022 Roberto ZUCCATO 1952 Zanè Italian Gianluca ROMAGNOLI Padua Proceedings before the administrative authority CONSOB Proceedings no. 43144/2016 29/03/2016 Role of the applicant : member of the board of directors of the b