After the decision to the notorious case Engel and Others v. Netherlands in 1976 (download), we are no longer allowed to qualify a sanction or proceedings in purely formal terms as its criminal nature shall be recognized whereas one of the following "Engel criteria" occur: 1) the qualification given by the law; 2) the nature of the offence; 3) the severity of the penalty.

The first criterion, the qualification given by the law, has a minor importance because it represents just the starting point of the interpretation addressed to the purpose of the qualification of the sanction or procedure.

The second criterion, the nature of the offence, is undoubtedly the most significant and can be investigated on the basis of various factors such as, for example: the determination of repressive function / deterrent effect (see Öztürk v. Germany 1984; Bendenoun v. France 1994); a comparison with the qualification given to similar proceedings / sanctions by other member countries of the Council of Europe (Öztürk c. Germany del 1984); the ascertainment of the origin of the action, if that was engaged in by a public authority under legally recognized powers (Benham c. United Kingdom 1996); verification of the scope of that rule and of its general validity (Bendenoun c. France del 1994).

Last, but not least, the third criterion, the severity of the sanction, to be assessed in relation to the specific case.

With the well-known judgment in the case Grande Stevens and other c. Italy in 2014, the European Court of Human Rights found that the sanctionary proceedings before CONSOB are essentially criminal and therefore stated that the subsequent criminal proceeding relating to the same material fact is a violation of the ne bis in idem principle.

According to the above mentioned principles, see the ordinance of the Court of Cassation n. 950/2015 where the specialized section declared relevant and not manifestly unfounded, the question of constitutionality concerning Article 187 ter, paragraph 1 , of Legislative Decree n. 24 February 1998, n. 58. [Avv. Carlo Florio]