Analysis of Ordinance No. 10922 of 2024: Procedural Flaws and Administrative Penalties

The recent Ordinance No. 10922 of April 23, 2024, issued by the Court of Cassation, provides important insights regarding the issue of administrative penalties 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 concerning the relevance of procedural flaws.

The Regulatory Context

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

The Implications of the Ruling

The Court stated that, due to the binding nature of the sanctioning measure, any procedural flaws cannot affect the effectiveness of the penalty. This means that the penalties imposed by Consob remain valid even in the presence of procedural irregularities. Some key points arising from the ordinance include:

  • The provision has a procedural nature and can be applied retroactively to ongoing opposition proceedings.
  • The decision reinforces the stability and certainty of law in the financial intermediation sector.
  • The sanctioning measure retains its unmodifiable content, regardless of formal flaws.
Financial intermediation - Consob procedure pursuant to Article 195 of Legislative Decree No. 58 of 1998 - Procedural flaws - Relevance - Exclusion - Basis - Article 21 octies of Law No. 241 of 1990 - Procedural provision - Pending opposition proceedings - Applicability.

Conclusions

In conclusion, Ordinance No. 10922 of 2024 represents a milestone in the jurisprudence regarding financial intermediation. It clarifies how procedural flaws cannot undermine the validity of imposed penalties, thus ensuring greater certainty for operators in the sector. This approach could influence defensive strategies in similar cases, inviting a more careful reflection on the rights and duties of the parties involved.

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