Downgrading del debito sovrano e responsabilità delle agenzie di rating

Sovereign ratings and civil liability of credit agencies Recent reports confirm the inquiry of the italian Corte dei Conti into S&P, Fitch, Moody’s , considering whether their false or “reckeless” sovereing ratings caused a demage to Italy. Since the financial crisis erose, even in U.S. many legal actions have been taken against rating agencies by Federal Government (DoJ) and many member States. This essay investigates the nature of credit agencies’ liability for demages caused to States depending on soverein ratings and legal limits of the Corte dei conti’s jurisdiction. Demages caused by misleading credit ratings may affects both investors and financial institutions or, more in general, issuers, determinig multiple liability claims. Recent UE reform (Reg. n. 462/2013) of Regulation n. 1060/2009 on credit rating agencies has introduced a new civil liability claim: under sec. 35bis of Reg. n. 1060/2013, where a credit rating agency has committed intentionally or with gross negligence, any of the infringements listed in Annex III having an impact on a credit rating, an investor or issuer may claim damages from that credit rating agency for damage caused to it due to that infringement. This Article does not exclude further civil liability claims in accordance with national law. To this extent, it has to be considered that sovereign ratings affects States reliability and trustwothiness, certainly causing demages: however this particular kind of action for demages is limited by art. 17, sec 30ter, of d.l. 78/2009: (a) the offender must be a civil servant and (b) he must be found guilty of a criminal offence. The Corte di Cassazione (Cass. Pen., sez. III, 4 febbraio 2014, n. 5481) has recently affirmed that the criminal offence needed could be any of the ones ruled by the Criminal Code: so, even the market manipulation criminal offence contested to S&P, Fitch and Moody’s in Trani Tribunal’s trial. By the way, the role of the offender (being a civil servant) still is a legal binding requirement.