Capital market criminal law is aimed at limiting the risks derived from any potential distortions of the free market. The Italian and international financial system have led to the development of numerous lawful and unlawful mechanisms aimed at a rapid increase in wealth. Consequently, lawmakers have increasingly had to step in – also at the instigation of EU law, including the recent law no. 238 of 23 December 2021 (known as EU law 2019-2020) – to enact laws geared towards bolstering and ensuring the correct functioning of financial markets.
With respect to financial crimes, the consolidating act on finance (Legislative Decree no. 58 of 24 February 1998 and subsequent amendments and additions) stands out. Part V is entirely dedicated to criminal and administrative sanctions targeting a series of financial crimes. Lawmakers have provided for a core of criminal offences with a view to protecting supra-individual fixed assets through vigorous penalties. This includes cases of illegal financial activities (art. 166), misstatements in the prospectus (art. 173-bis), insider dealing (art. 184) and market manipulation (art. 185). As far as the latter two cases are concerned, corporate liability also applies pursuant to art. 25 sexies of leg. decree 231/2001 (‘Market abuse offences’).
The legal problems underlying the law of financial crime are complex and the subject of heated debate in both jurisprudence and legal theory. For instance, the so-called “dual-track” system punishing insider dealing and market manipulation, for which both criminal and administrative penalties have been set – and both of which are particularly harsh – and, as such, appear to clash with the principle of ne bis in idem, as highlighted, for example, by the ECHR in the well-known Grande Stevens v. Italy ruling.
Banking law, which is closely connected with capital markets law, is based in particular on legislative decree no. 385 of 1 September 1993 (also known as T.u.b., or Consolidated Law on Banking), which includes a series of provisions aimed at ensuring criminal protection with regard to borrowing and lending. More specifically, articles 130 et seq. T.u.b. sets out specific criminal provisions with regard to unauthorized banking and financial activities (articles 130-132 bis and 140 bis), asset protection and bank stability (articles 136 and 137), false statements or omitted information (articles 139-140).
Some cases set out in the penal code also fall within the scope of banking and financial criminal law, such as crimes of usury (Article 644), money laundering (Article 648 bis), use of money, goods or proceeds of illicit origin (Article 648 ter) and self-laundering (art. 648 ter.1), which emerge as part of very frequent phenomena in banking and financial procedures, e.g., exploitative lending and the use of the financial system for money laundering.
The set of provisions that make up banking and financial law are multifarious and constantly changing. This requires an on-going analysis of highly complex issues. For illustrative purposes only, following are a few areas in which Baccaredda Boy Law Firm offers consulting services or provides in-court assistance to clients: money-laundering regulation, competition law, misuse of confidential information, market fraud, fraudulent insurance products.
Baccaredda Boy Law Firm has followed countless proceedings such as the Unipol/BNL trial, the Monte dei Paschi di Siena trial over the design and sale of financial instruments, the Parmalat trial over market manipulation as well as the Banca Etruria trial.
Baccaredda Boy Law Firm provides consulting and legal services to leading insurance companies in matters of complex criminal law issues that may affect investment operations. Similarly, it offers assistance to protect insurance companies against frauds.
Baccaredda Boy Law Firm offers an in-depth analysis of banking and finance law through conferences, study groups and publications. In this respect, please refer to the relevant section.