La riconversione garantistica dell’illecito para-penale: il concorso mediante omissione dei sindaci nell’illecito amministrativo di manipolazione del mercato

The assessment of criminal liability for controlling bodies is often built upon generalised and omnivorous “macro-duties to act” as well as on normative reproaches, which formally comply with the nullum crimen sine culpa principle, but — de facto — disregard the very scope of the guarantee. Thus, a clear preference for the assignment of liability bent to the outmode versari in re illicita or merely based on objective criteria occurs. On the contrary, the judgment at stake is remarkable as enhancing the “pure” regime of crimes by omission of the members of the board of auditors in relation to the administrative sanction of market manipulation, paying particular attention to two aspects. On the one side, it reaffirms the right perimeter of the duty to perform, as well as a meticulous assessment of the causal links for legal duties together with preventing powers towards alternative lawful behaviours. On the other, and most importantly, it refers to establishing a criminal intent valued in its core “volition” and purified of theoretical automatisms and presumptive simplifications.