Legal Framework

Communication no. 2/2020 of March 25, 2020

Subject: Provisions pursuant to Article no. 103, paragraph 1, of the Law Decree of 17 March 2020, no. 18

The Article no. 103, paragraph 1, of the Law Decree of 17 March 2020 n. 18, bears a discipline on the suspension of the terms of proceedings, pending with public administrations. The standard provides that, for proceedings pending on 23 February 2020, or started after this date it is not taken into account the period between 23 February and 15 April 2020.

With regard to the administrative acts of competence of Consob, regulated by the national law, the following clarifications are made with reference to the scope of the suspension introduced by this standard.

Administrative proceedings

Based on Article no. 103, paragraph 1, of the Legislative Decree no. 18/2020, for the purpose of calculating the terms of regulation of the performance of the administrative procedures of competence of Consob, including the sanctioning proceedings, pending on 23 February 2020 or started after that date, it is not taken into account the period between the same date and 15 April 2020.

The suspension operates according to the law (ex lege) and the terms will begin to run again from 16 April 2020.

The suspension of the terms also operates with regard to administrative procedures - pending on the date of entry into force of the Law Decree – which are characterized by a "significant" deadline, i.e. the terms whose expiration, lacking the adoption of an express provision affects, according to the law, the acceptance or the rejection of the request of the private individual (by the Article no. 103, paragraph 1, of the Law Decree no. 18 / 2020 “The terms of formation of the final will of the administration in the expected forms of significant silence provided by the legal system are accordingly extended or deferred for a corresponding time").

Also in this case the effect which has been foreseen by the standard is automatic and determines that:

  • the "significant" terms, which started to run before 23 February 2020 and which are ongoing at the date of entry into force of the Law Decree, interrupt and start to run again at the date of 16 April 2020;
  • the "significant" terms, that begin to run in the period between 23 February and 15 April 2020, start from new (ab origine)at the date of 16 April 2020.

Without prejudice to the above, Consob, in general, will proceed to carry out its own administrative activity according to the ordinarily established terms, in compliance with the procedural guarantees and without prejudice to the cases in which the activity of Consob is affected by the procedural contribution of third parties, private or public, who will be able to take advantage of the suspension provided by the law, even without giving notice to the Institute.

Precautionary and urgent measures

They are excluded by the application range of the suspension provided for by Article no. 103 of the Law Decree the precautionary and urgent measures of competence of the Institute, provided that the related proceedings do not consider, on the basis of the secondary regulation for the implementation of Law no. 241 of 1990 (Consob Regulation no. 18388 of 2012), a deadline by which the Authority provides for the adoption of the provision.

Disclosure obligations to Consob

The provision contained in Article no. 103 of the Law Decree n. 18/2020 does not apply to terms directly provided for by law, regulation or general resolutions, producing obligations to transmit information or documents to Consob. These provisions, established for the protection of the supervisory activity of the Institute, do not give rise to administrative procedures; consequently, these obligations must be fulfilled in ordinary terms.

Taking into account the emergency situation and the measures to contain the infection from COVID-19 adopted by the Presidency of the Council of Ministers, the Commission reserves the right in any case to extend, in certain specific matters, the terms provided by the Commission itself with reference to regulations or general resolutions.

In exercising its supervisory powers, in any case, the Authority will consider adequately the current emergency context.

Paolo Savona