Internal Market and Services Commissioner Michel Barnier said: "If a financial institution does not abide by EU rules in the area of financial services, traders and executives must realise that they won't get away with it and that the response will be tough, wherever in Europe the violation occurs. Now, too often, that is not the case. Today's Communication sets out a way forward to ensure that sanctioning powers will be stronger and more convergent across Europe so we can better protect citizens' interests."
Key elements of the Communication:
1. Sanctioning rules diverge greatly across Member States
The financial crisis has shown that financial market rules are not always respected and applied as they should be across the Union. Ensuring proper application of EU rules is first and foremost the task of national authorities, who have the responsibility to prevent financial institutions from violating EU rules, and to sanction violations within their jurisdiction. But national authorities need to act in a coordinated and integrated way.
The Communication finds that sanctions provided for by Member States diverge in key aspects such as the types of sanctions available and the level of fines. This matters as when the rules that need to be abided by are Europe-wide, it makes sense for the response to their violation to also be coherent at European level. There could be a risk of companies or individuals doing business where sanctions are weakest or least likely. The current system does not always seem to be optimal in terms of effectiveness, proportionality, and dissuasiveness.
2. Suggestions for convergence and reinforcement of sanctioning regimes
The divergences highlighted in the Communication may create distortions of competition in the Internal Market. But, decisively, those divergences may also create the risk of undermining consumer protection, market integrity, and confidence in the financial sector. Lack of enforcement of EU rules in one Member State may have significant implications for the stability and functioning of the financial system in another Member State.
The Commission therefore holds the view that in order to prevent the risk of improper functioning of financial markets, further convergence of sanctioning regimes is necessary. This could be achieved by setting common minimum standards for certain issues that are key for effective, proportionate, and deterrent sanctioning regimes. This could include the types of sanctions available, including considering the option of criminal as well as civil sanctions; the level of those sanctions; the availability of sanctions both against financial institutions and individuals responsible for violations; and the publication of sanctions.
Deadline for comments is 19 February 2011.
© European Commission
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