eucrim 2015 / 4 thE EurOPEAn CriminAl lAw ASSOCiAtiOnS‘ fOrum focus: Criminal/Punitive law Protection of the financial Sector Dossier particulier: Protection pénale/punitive du secteur financier Schwerpunktthema: Strafrechtlicher und strafrechtsähnlicher Schutz des Finanzmarktes Guest Editorial Prof. Dr. Christos Hadjiemmanuil A Heavily Regulated Industry: The Varied Objectives of Financial Regulation Prof. Dr. Christos Hadjiemmanuil Criminal Liability of Heads of Business: A Necessary Pillar in the Enforcement of the Protection of the Financial Interests of the EU Prof. Dr. Katalin Ligeti Investigative and sanctioning powers of the ECB in the framework of the Single Supervisory Mechanism: Mapping the Complexity of a New Enforcement Model Prof. Dr. Silvia Allegrezza and Olivier Voordeckers The “Europeanization” of Financial Supervision in the Aftermath of the Crisis Konstantina Panagiannaki 2015 / 4 ISSUE / ÉDitiOn / AuSgAbE The Associations for European Criminal Law and the Protection of Financial Interests of the EU is a network of academics and practitioners. The aim of this cooperation is to develop a European criminal law which both respects civil liberties and at the same time protects European citizens and the European institutions effectively. Joint seminars, joint research projects and annual meetings of the associations’ presidents are organised to achieve this aim. Contents News* Articles European Union Council of Europe Criminal/Punitive law Protection of the Financial Sector Foundations Foundations 130 Schengen 136 Reform of the European Court 138 A Heavily Regulated Industry. The Varied of Human Rights Objectives of Financial Regulation Prof. Dr. Christos Hadjiemmanuil Institutions 130 Council Specific Areas of Crime 145 Criminal Liability of Heads of Business. 130 European Court of Justice 137 Corruption A Necessary Pillar in the Enforcement (ECJ) 137 Money Laundering of the Protection of the Financial Interests 131 Europol of the EU 131 Eurojust Prof. Dr. Katalin Ligeti 151 Investigative and Sanctioning Powers of Specific Areas of Crime / the ECB in the Framework of the Single Substantive Criminal Law Supervisory Mechanism. Mapping the 132 Protection of Financial Interests Complexity of a New Enforcement Model 132 Organised Crime Prof. Dr. Silvia Allegrezza and Olivier Voordeckers Procedural Criminal Law 134 Procedural Safeguards 161 The “Europeanization” of Financial 134 Data Protection Super vision in the Aftermath of the Crisis 135 Asset Freezing and Recovery Konstantina Panagiannaki Cooperation Imprint 135 Law Enforcement Cooperation * News contain internet links referring to more detailed information. These links can be easily accessed either by clicking on the respective ID-number of the desired link in the online-journal or – for print version readers – by accessing our webpage www.mpicc.de/eucrim/search.php and then entering the ID-number of the link in the search form. Guest Editorial Dear Readers, The imposition of tight regulatory controls on banks and other involving market abuse and securi- financial intermediaries is a universal characteristic of mod- ties fraud, criminal sanctions have ern economic systems. The frequency and intensity of legis- always played a central role. lative and administrative measures affecting financial activi- ties demonstrate the state’s incessant concern with the way in In any event, in the wake of the which the market operates in this field. The precise perimeter global financial crisis, the time is of the regulated sector varies, however, from one jurisdiction opportune for a concerted reas- to another and changes over time. The same is true of the type sessment of the situation. A host and direction of regulatory intervention. This raises important of new regulatory requirements are questions about the existence or otherwise of common denom- now in operation; their application inators – common objectives and overarching justifications – and enforcement cause consider- that hold together the edifice of financial regulation. able dilemmas and difficulties, both from the perspective of regulatory The discussion on regulatory objectives has both a positive effectiveness and from a rule-of- and a normative aspect. The regulatory regime’s actual objec- law viewpoint. In this context, the tives constitute an indispensable element of its description. actual and potential contribution of Christos Hadjiemmanuil What purposes does financial regulation serve? Are they the criminal law to the smooth opera- same for all sectors of the financial industry? Is the current tion of banking and financial markets, the protection of their regulatory regime a continuation of earlier state interventions users, and the preservation of systemic stability requires ex- in financial markets − in the sense that, despite any techni- plicit and detailed analysis. cal adaptations of the tools employed, the objectives have re- mained essentially stable − or is it something fundamentally Recent legislative developments at the EU level, in particular, different? The answers to these questions are important for may tend to increase the significance of criminal sanctions in an understanding of the nature and function of the regulatory this area. Even in the prudential field, the emerging “single regime. An identification of the regulatory objectives is also rulebook” is not confined to imposing obligations on financial essential for a correct legal assessment of specific factual situ- intermediaries as legal persons but lifts the corporate veil to ations and ensuing administrative responses. place novel regulatory burdens on board members and direc- tors − personally. The new provisions thus establish signifi- Of equal importance is the discussion of the means, or tools, cant behavioral standards for individuals and, in an increasing used to achieve the set objectives. Traditionally, the policy de- number of instances, require the penalization of substandard bates have focused on substantive regulatory norms. Questions conduct. This is bound to bring familiar concepts and consid- of optimal enforcement have received less attention. In terms erations of criminal law to bear on a hitherto distant legal field of regulatory tools, the emphasis has predominantly been on – thus opening new vistas, both for regulatory lawyers and for administrative supervision, enforcement, and sanctions. Of criminal lawyers. course, the market sectors and issues vary. In the case of pru- dential regulation in the banking and insurance sectors, private Prof. Dr. Christos Hadjiemmanuil actions and criminal sanctions are, as a general rule, of mar- Professor of International and European Monetary and Finan- ginal, if any, importance. In contrast, in securities regulation, cial Institutions at the University of Piraeus, Greece the possibility of (and conditions for) private enforcement is a Visiting Professor at the Department of Law, London School continuously debated issue; in certain areas, especially those of Economics eucrim 4 / 2015 | 129 News Actualités / Kurzmeldungen bourg Presidency aims at monitoring the current migratory flows, support- ing decision-making in this respect, and implementing the agreed measures. In concrete terms, the “information shar- ing mode” means that EU institutions, Member States, and agencies continu- ously share information on the situation European Union* via a common web platform. The Com- Reported by Dr. Els De Busser (EDB) and Cornelia Riehle (CR) mission and the EAAS will provide sup- port by means of information analysis. (EDB) eucrim ID=1504002 of 16 October 2015, the temporary bor- Foundations der controls it had introduced at its inter- nal border with Hungary on 17 Septem- Court of Justice of the EU (CJEU) Schengen ber 2015. A separate opinion will focus on the decision taken by the Hungarian EP Endorses Reform of the CJEU Germany and Austria Reintroduce authorities on 17 October 2015 to tem- After four years of negotiations, the EP Temporary Controls at Internal Borders porary reintroduce border controls at the voted in favour of the substantial reform According to the European Commis- border with Slovenia. (EDB) of the CJEU statute on 28 October 2015. sion, the temporary reintroduction of eucrim ID=1504001 A key element of the compromise text is controls at the international EU borders the doubling of the number of General by Germany and Austria complies with Court judges in three steps by 2019 (see the Schengen Borders Code. This was eucrim 2/2015, p. 35). the subject of a Commission Opinion Institutions The reform is considered essential in released on 23 October 2015. the face of the substantial increase in the Germany implemented the measure Council General Court’s workload and in order on 13 September 2015 to cope with the to decrease the duration of procedures. large influx of refugees. Austria followed Increased Information Sharing (EDB) on 16 September 2015. The Commission Activated in Response to Migratory eucrim ID=1504003 concluded that the necessity and propor- Crisis tionality of these measures were in ac- On 30 October 2015, the Luxembourg New President of the CJEU cordance with the arrangements made Presidency decided to activate the Inte- On 7 October 2015, and following the under the Schengen Borders Code. The grated Political Crisis Response (IPCR) partial replacement of the Members of measures taken by the two Member States arrangements on an “information shar- the Court of Justice, Prof. Dr. Koen Len- were justified by the sudden increase in ing mode.”