Abstract
Aimed at establishing an effective and consistent enforcement of market abuse regulation, the regime introduced by Regulation (EU) No. 596/2014 (‘MAR’) and Directive 2014/57/EU (‘MAD II’) relies on a mix of criminal penalties and administrative sanctions, both of which are subject to the principles of double jeopardy and due process. In the light of a few cases decided by the Court of Justice of the European Union and the European Court of Human Rights (‘ECtHR’), the features of this regime are, however, unclear, and it is doubtful whether the current framework is adequate to achieve its goals. This article criticizes the decision to criminalize market abuse at the EU level and argues that a credible EU supervisory system is better served by an enforcement system based on administrative sanctions. Moreover, the article discusses the solution offered by the ECtHR to the trade-off between efficiency and fairness in administrative proceedings and proposes an allocation of prosecution and decision-making to independent bodies within the same supervisory authority as a means to better balance efficiency and fairness.
Similar content being viewed by others
Notes
Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) [2003] OJ L 96/16.
Regulation (EU) No. 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC [2014] OJ L 173/1.
Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive) [2014] OJ L 173/179.
[2012] OJ C 326/391.
Luchtman and Vervaele (2014), p 192 (focusing on the crucial lack of uniform cross-border enforcement); Herlin-Karnell (2012), p 488 (questioning, before the enactment of MAR and MAD II, whether dual regulation through criminal law sanctions and administrative sanctions breaches the principle of ne bis in idem).
High Level Group on Financial Supervision in the EU (the de Larosière Group) (2009), p 23. A ‘lack of harmonisation of sanctioning powers between members’ was already identified by the Committee of European Securities Regulators (2006) and confirmed by the European Securities and Markets Authority (2012).
European Commission (2010), p 4.
Öberg (2014) (discussing why a Directive introducing the sanction of imprisonment is both effective and essential for the implementation of EU financial markets regulation); Moloney (2014), p 766 [noting that ‘the crisis era (and in particular the Libor scandal) created supportive political conditions for criminalizing market abuse’].
MAR Proposal, recital 39; MAR, recital 77; MAD II Proposal, recital 18; MAD, recital 27.
Explanations relating to the Charter of Fundamental Rights (2007/C 303702), on Art. 52: ‘The meaning and the scope of the guaranteed rights are determined not only by the text of those instruments, but also by the case law of the European Court of Human Rights and by the Court of Justice of the European Union’; Lock (2015), pp 184–185.
CJEU, Case C-45/08, Spector Photo Group, ECLI:EU:C:2009:806, para. 42.
Grande Stevens, supra n. 7, paras. 94–101.
Engel and Others v. the Netherlands, ECtHR, Nos. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, 8 June 1976; Schabas (2015), pp 277–278; Bernatt (2016a), pp 16–17. More recently the same approach was followed by the CJEU in interpreting Art. 50 CFREU: see CJEU, Case C-489/10, Bonda, ECLI:EU:C:2012:319, para. 37; CJEU, Case C-617/10, Fransson, ECLI:EU:C:2013:280, para. 35.
A and B v. Norway, ECtHR, Nos. 24130/11 and 29758/11, 15 November 2016, especially paras. 130 and 121.
In a tax case, CJEU, Case C-617/10, Fransson, ECLI:EU:C:2013:280, para. 34. For a critical evaluation, Lock (2018), pp 12–13.
CJEU, Case C- 617/10, Fransson, ECLI:EU:C:2013:280, para. 34.
CJEU, Cases C-596/16 and 597/16, Di Puma, ECLI:EU:C:2018:192, especially paras. 44 and 45.
CJEU, Case C-537/16, Garlsson, ECLI:EU:C:2018:193, especially paras. 61 and 63.
According to recital 11, ‘Insider dealing and unlawful disclosure of inside information should be deemed to be serious in cases such as those where the impact on the integrity of the market, the actual or potential profit derived or loss avoided, the level of damage caused to the market, or the overall value of the financial instruments traded is high. Other circumstances that might be taken into account are, for instance, where an offence has been committed within the framework of a criminal organisation or where the person has committed such an offence before’. Similarly, under recital 12, ‘market manipulation should be deemed to be serious in cases such as those where the impact on the integrity of the market, the actual or potential profit derived or loss avoided, the level of damage caused to the market, the level of alteration of the value of the financial instrument or spot commodity contract, or the amount of funds originally used is high or where the manipulation is committed by a person employed or working in the financial sector or in a supervisory or regulatory authority’.
With reference to the Italian draft of the act implementing MAD II, Viganò (2016), p 197.
European Securities and Markets Authority (2012), p 5.
European Commission (2011), p 32.
Moloney (2014), p 762.
For a radical critique of this assumption, see Faure and Leger (2015), pp 415–416 (noting that the ‘insider trading law seems not to be a big issue in any of the Member States’).
European Securities and Markets Authority (2012), p 9.
Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/77/EC [2010] OJ L 331/84.
Grande Stevens, supra n. 7, at para. 137 (noting that ‘the Insider Trading Office [which investigated the case], the Directorate [which proposed the sanction] and the Commission [which imposed the penalty] are merely branches of the same administrative body, acting under the authority and supervision of a single chairman’).
Grande Stevens, supra n. 7, at para. 123.
Gradinger v. Austria, ECtHR, No. 15963/90, 23 October 1995, paras. 34, 37 and 42; Menarini Diagnostics SRL v. Italy, ECtHR, No. 43509/08, 27 September 2011 (‘Menarini’), para. 58; Bernatt (2016b), p 297.
Grande Stevens, supra n. 7, at para. 137.
Grande Stevens, supra n. 7, at para. 161.
Grande Stevens, supra n. 7, at paras. 148–155.
Eskridge and Ferejohn (2002), p 630.
OECD (2005), p 62.
Grande Stevens, Dissenting opinion of Judges Karakaş and Pinto de Albuquerque, at para. 11. An analogous point is raised in the dissenting opinion of Judge Pinto de Albuquerque in Menarini, at para. 8.
Davidson (2017), p 231; R (Willford) v. FSA [2013] EWCA Civ 677, para. 37 (Moore-Bick LJ).
Bernatt (2016a), p 18; Bernatt (2016b), pp 294–299; similarly, Varju (2014), p 182 (noting that ‘although the general requirements on jurisdiction of the review court are formulated in rather bold terms in ECHR law, their detailed examination shows that they cover the review of facts and law only and do not apply to the review of discretion’).
Bernatt (2016a), p 20.
Bernatt (2016b), p 322.
Botta and Svetlicinii (2014), p 125 (noting ‘the ambiguous requirement of full judicial review introduced by the ECtHR’).
Gargantini (2015), p 156.
Autorité des Marchés Financiers (2018) Commission des santions—Présentation.
Financial Conduct Authority (2017), p 2.
Andreangeli (2008), p 239.
For an analogous point, Nazzini (2012), p 990.
In France, for example, under Art. R. 621-45, Code monétaire et financier, administrative sanctions adjudicated by the Commission des sanctions are subject to judicial review by the Conseil d’Etat.
For a similar conclusion with reference to the enforcement of antitrust law, Nazzini (2012), p 1005.
Herlin-Karnell (2016), p 243.
For a comparative analysis of institutional models of enforcement, Scholte and Ottow (2014), p 80.
European Commission (2015), p 26.
References
Allena M (2014) Art. 6 ECHR: new horizons for domestic administrative law. Ius Publicum—Network Review. http://www.iuspublicum.com/repository/uploads/09_01_2015_11_49_Allena_ENG.pdf. Accessed 14 July 2018
Andreangeli A (2008) EU competition enforcement and human rights. Elgar, Cheltenham
Autorité des Marchés Financiers (2018) Commission des santions—Présentation. http://www.amf-france.org/L-AMF/Commission-des-sanctions/Presentation.html. Accessed 14 July 2018
Bailey D (2004) The scope of judicial review under Article 81 EC. Common Mark Law Rev 41:1327–1360
Bernatt M (2014) The compatibility of deferential standard of judicial review in the EU competition proceedings with Article 6 of the European Convention on Human Rights, pp 24–29. https://ssrn.com/abstract=2447884. Accessed 14 July 2018
Bernatt M (2016a) Administrative sanctions: between efficiency and procedural fairness. Rev Eur Adm Law 9:5–32
Bernatt M (2016b) Transatlantic perspective on judicial deference in administrative law. Columbia J Eur Law 22:275–325
Botta M, Svetlicinii A (2014) The standard of judicial review in EU competition law enforcement and its compatibility with the right to a fair trial under the EU Charter of Fundamental Rights. In: Kerikmäe T (ed) Protecting human rights in the EU. Springer, Berlin, pp 107–127
Committee of European Securities Regulators (2006) 2006 Report on supervisory convergence in the field of securities markets. http://www.cmvm.pt/pt/Cooperacao/esma/DocumentosESMACESR/Documents/06259b.pdf. Accessed 7 Dec 2018
Daly P (2012) A theory of deference in administrative law: basis, application, and scope. Cambridge University Press, Cambridge
Davidson L (2017) Enforcement procedure. In: Ogg T, Leiper R (eds) Conduct and pay in the financial industry. Informa Law from Routledge, Oxon, pp 215–242
Eskridge W Jr, Baer L (2008) The continuum of deference: Supreme Court treatment of agency statutory interpretations from Chevron to Hamdan. Georget Law J 96:1083–1226
Eskridge W Jr, Ferejohn J (2002) Structuring lawmaking to reduce cognitive bias: a critical view. Cornell Law Rev 87:616–647
European Commission (2010) Reinforcing sanctioning regimes in the financial sector. COM(2010)716. https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0716:FIN:EN:PDF. Accessed 7 Dec 2018
European Commission (2011) Commission Staff Working Paper. SEC(2011)1217. https://www.lw.com/admin/Upload/Documents/Market%20Abuse/Commission-staff-working-paper-on-impact-assessment.pdf. Accessed 7 Dec 2018
European Commission (2015) Action plan on building a capital markets union. COM(2015)468 final, chapter 6.3. https://ec.europa.eu/transparency/regdoc/rep/1/2015/EN/1-2015-468-EN-F1-1.PDF. Accessed 7 Dec 2018
European Securities and Markets Authority (2012) Report: actual use of sanctioning powers under MAD. ESMA/2012/270. https://www.esma.europa.eu/sites/default/files/library/2015/11/2012-270.pdf. Accessed 7 Dec 2018
Faure M, Leger C (2015) The Directive on criminal sanctions for market abuse: a move towards harmonizing inside trading criminal law at the EU level? Brooklyn J Corp Fin Commer Law 9:387–427
Financial Conduct Authority (2017) Enforcement information guide. https://www.fca.org.uk/publication/corporate/enforcement-information-guide.pdf. Accessed 29 July 2018
Forrester IS (2009) Due process in EC competition cases: a distinguished institution with flawed procedures. Eur Law Rev 34:817–843
Gargantini M (2015) Public enforcement of market abuse bans: the ECtHR Grande Stevens decision. J Fin Regul 1:149–158
Gerardin D, Petit N (2012) Judicial review in European competition law. In: Merola M, Derenne J (eds) The role of the Court of Justice of the European Union in competition law cases. College of Europe, Global Competition Law Centre, Bruges, pp 21–71
Goisis F (2015) La full jurisdiction nel contesto della giustizia amministrativa: concetto, funzione e nodi irrisolti. Dir Proc Ammin 2015(2):546–596
Harlow C, Rawlings R (2014) Process and procedure in EU administration. Hart Publishing, Oxford
Herlin-Karnell E (2012) White-collar crime and European financial crises: getting tough on EU market abuse. Eur Law Rev 37:481–494
Herlin-Karnell E (2016) Is administrative law still relevant? How the battle of sanctions has shaped EU criminal law. In: Mitsilegas V, Bergstrom M, Konstadinides T (eds) Research handbook on EU criminal law. Elgar, Cheltenham, pp 233–249
High Level Group on Financial Supervision in the EU (The de Larosière Group) (2009) Report. EU, Brussels. http://ec.europa.eu/economy_finance/publications/pages/publication14527_en.pdf. Accessed 7 Dec 2018
Lianos I, Andreangeli A (2013) The European Union: the competition law system and the Union’s norms. In: Fox E, Trebilcock M (eds) The design of competition law institutions. Oxford University Press, Oxford, pp 384–443
Lock T (2015) The European Court of Justice and European Court. Oxford University Press, Oxford
Lock T (2018) Åkerberg Fransson and its progeny. Edinburgh School of Law Research Paper No 2018/23. https://ssrn.com/abstract=3192803. Accessed 15 July 2018
Luchtman M, Vervaele J (2014) Enforcing the market abuse regime: towards an integrated model of criminal and administrative law enforcement in the European Union? New J Eur Crim Law 5:192–220
McVea H (2015) Supporting market integrity. In: Moloney N, Ferran E, Payne J (eds) The Oxford handbook of financial regulation. Oxford University Press, Oxford, pp 631–658
Moloney N (2014) EU securities and financial markets regulation. Oxford University Press, Oxford, pp 699–769
Nazzini R (2012) Administrative enforcement, judicial review and fundamental rights in EU competition law: a comparative contextual-functionalist perspective. Common Mark Law Rev 49:971–1006
Öberg J (2014) Is it ‘essential’ to imprison insider dealers to enforce insider dealing laws? J Corp Law Stud 14:111–138
OECD (2005) Country studies. European Commission–peer review of competition law and policy. http://www.oecd.org/eu/35908641.pdf. Accessed 7 Dec 2018
Ottow A (2015) Market and competition authorities. Oxford University Press, Oxford
Schabas W (2015) The European convention on human rights: a commentary. Oxford University Press, Oxford
Scholte M, Ottow A (2014) Institutional design of enforcement in the EU: the case of financial markets. Utrecht Law Rev 10:80–91
Slater D, Thomas S, Waelbroeck D (2009) Competition law proceedings before the European Commission and the right to a fair trial: no need for reform? Eur Compet J 5:97–143
Varju M (2014) European Union human rights law. Elgar, Cheltenham
Ventoruzzo M (2015) When market abuse rules violate human rights: Grande Stevens v. Italy and the different approaches to double jeopardy in Europe and the US. Eur Bus Org Law Rev 16:145–165
Viganò F (2016) Ne bis in idem e il contrasto agli abusi di mercato: una sfida per il legislatore italiano e per i giudici italiani. Diritto penale contemporaneo 2016:186–202
Waelbroeck D, Fosselard D (1995) Should the decision-making power in EC antitrust procedures be left to an independent judge? The impact of the European Convention of Human Rights on EC antitrust procedures. Yearb Eur Law 15:111–142
Wils W (2004) The combination of the investigative and prosecutorial functions and the adjudicative function in EC antitrust enforcement: a legal and economic analysis. World Compet Law Econ Rev 27:202–224
Zimmer D (2014) Competition law enforcement: administrative versus judicial systems. 9th ASCOLA Conference paper. http://www.ascola-conference-2014.wz.uw.edu.pl/. Accessed 14 July 2018
Acknowledgements
I am grateful to Giovanni Portioli, Eyal Zamir, an anonymous referee and the participants in the Private and Commercial Law Workshop at the Hebrew University for their insightful comments on an earlier draft. I also benefited from conversations with Kern Alexander, Lars Klöhn, Carlo Milia, and Carla Stamegna. Gregory Black and Viktor Berishaj provided excellent assistance. Errors remain my own.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Perrone, A. EU Market Abuse Regulation: The Puzzle of Enforcement. Eur Bus Org Law Rev 21, 379–392 (2020). https://doi.org/10.1007/s40804-019-00171-x
Published:
Issue Date:
DOI: https://doi.org/10.1007/s40804-019-00171-x