Regulatory-fine provisions

(1) It is a regulatory offence for whoever wilfully or recklessly, contrary to 1. section 3(11), informs a person of a measure or of an investigation proceeding initiated, or 2. section 41(1), fails to give the Management of the exchange information named there, or fails to give it correctly or completely.
(2) It is a regulatory offence for whoever wilfully or negligently 1. acts contrary to an enforceable order under a) section 3(4), first sentence, second half-sentence, second or fourth sentence, in each case also in conjunction with section 7(3), or section 3(5), second sentence, or b) section 6(2), first sentence or (4), first sentence, 2. fails, contrary to section 3(4), fifth or sixth sentence, in each case also in conjunction with the eighth sentence, to permit or tolerate entry, 3. as exchange operator, acts contrary to an enforceable order under section 3(4a), first sentence, 4. gives incorrect particulars on the facts named in section 4(2), third or fourth sentence when submitting the application under section 4(2), first sentence, 5. fails, contrary to section 4(7), first sentence, to notify a change of a person named there in management, or fails to notify it correctly, completely or in time, 6. as manager of an exchange operator of considerable importance, exceeds the number of mandates permissible under section 4a(2), second sentence in conjunction with the third and fourth sentences and any approval under the fifth sentence, by accepting a further mandate, 7. as member of the management or supervisory body of an exchange operator of considerable importance, exceeds the number of mandates permissible under section 4b(4), second sentence in conjunction with the third and fourth sentences and any approval under the fifth sentence, by accepting a further mandate, 8. fails, contrary to section 4a(1), to devote the required time to the performance of the tasks as manager, 9. as member of the management or supervisory body of an exchange operator, fails, where the conditions of section 4b(5), first sentence exist, to work towards the establishment of a nomination committee, 10. fails, contrary to section 5(3), third sentence, to make a notification, or fails to make it in time, 11. fails to take, contrary to section 5(4), no. 1, any or any sufficient precautions to identify and prevent the conflicts named there, 12. fails, contrary to section 5(4), no. 2, to create appropriate precautions and systems, 13. fails, contrary to section 5(4), no. 3, to ensure the technical functionality of the systems concerned, or fails to create technical precautions for the smooth and timely completion of the transactions concerned, 14. as exchange operator, operates an exchange without having the systems and procedures named in section 5(4a), 15. as exchange operator, operates an exchange without having sufficient financial resources within the meaning of section 5(5), 16. as exchange operator, contrary to section 5(7), executes client orders at an exchange it operates using its own capital, or has recourse to the matching of corresponding client orders, 17. fails, contrary to a) section 6(1), first, fifth or sixth sentence, or b) section 6(5), first or fourth sentence, or (6), first sentence, in each case also in conjunction with a statutory instrument under section 6(7), to make a notification, or fails to make it correctly, completely or in time, 18. acts contrary to an enforceable order of the exchange supervisory authority under section 6(1), seventh sentence, 19. fails, contrary to section 6(6), second sentence, to make a publication, or fails to make it in time, 20. fails, contrary to section 26c(2), first sentence, to establish a market-making system, 21. as trading participant, uses an algorithm within the meaning of section 26d(2) when participating in exchange trading, without having previously tested it for possible market-disrupting effects, 22. as exchange operator, contrary to section 26e, first sentence, fails to make the publication named there at least once a year, 23. as exchange operator, contrary to section 26f(1), fails to establish position management controls, or 24. as trading participant, contrary to section 26g, fails to transmit the data required by the Management.
(3) It is a regulatory offence for whoever infringes Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1; L 321, 30.11.2013, p. 6), by wilfully or recklessly, as operator of an open market within the meaning of section 48, failing, contrary to Article 8(1) in conjunction with subsection (4), first subparagraph, to make trading data available, or failing to make it available correctly, completely, in the prescribed manner or in time.
(4) It is a regulatory offence for whoever, as exchange operator, infringes Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012 (OJ L 337, 23.12.2015, p. 1), by wilfully or recklessly 1. failing, contrary to Article 4(1), to make a report, or failing to make it correctly, completely, in the prescribed manner or in time, 2. failing, contrary to Article 4(4), to retain records, or failing to retain them completely or for at least the prescribed duration, 3. reusing financial instruments contrary to Article 15(1) without the conditions named there being satisfied, or 4. exercising a right of reuse contrary to Article 15(2) without the conditions named there being satisfied.
(5) It is a regulatory offence for whoever infringes Regulation (EU) No 600/2014 in the version of 23 October 2024, by wilfully or recklessly, as market operator within the meaning of Article 4(1), point 18 of Directive 2014/65/EU, or as exchange operator operating a multilateral trading facility within the meaning of Article 4(1), point 22 of Directive 2014/65/EU or an organised trading facility within the meaning of Article 4(1), point 23 of Directive 2014/65/EU, 1. failing, contrary to a) Article 3(1), b) Article 6(1), c) Article 8(1), d) Article 8a(1) or (2), e) Article 8b(1), f) Article 10(1), g) Article 11(1a), second subparagraph, (1b), second subparagraph or (3), fourth subparagraph, or h) Article 11a(1), fourth subparagraph, to make a publication, or failing to make it correctly, completely, in the prescribed manner or in time, 2. operating, in the operation of a trading venue, a system named there that does not, or does not fully, satisfy the requirements described in Article 4(3), first subparagraph, 3. failing, contrary to a) Article 3(3) or Article 6(2), to grant access to the systems concerned in the manner described there, b) Article 5(1), first sentence in conjunction with the second sentence, to suspend an exemption named there, or failing to do so in time, c) Article 5(7), to establish a system or procedure named there, or failing to do so without delay after commencing operations, d) Article 7(1), third subparagraph, first sentence, to obtain an authorisation, or failing to do so in time, e) Article 8(3) or Article 10(2), to grant access to the arrangements concerned in the manner described there, f) Article 11(1), second subparagraph, first sentence, to give a notice, or failing to give it correctly, completely or without delay after a rule named there is determined, g) Article 12(1), to disclose information, or failing to disclose it correctly, completely, in the prescribed manner or in time, h) Article 13(1), second subparagraph, first sentence, to ensure access named there, i) Article 13(1), second subparagraph, second sentence, to make the data policy available, or failing to do so in the prescribed manner, j) Article 13(2), to make information named there available, or failing to do so in time, k) Article 22(2), to store required data for a sufficiently long period, l) Article 22a(1), first sentence, to transmit data, or failing to transmit it correctly, completely, in the prescribed manner or in time, m) Article 25(2), first sentence in conjunction with the third sentence, to keep data named there available for at least five years, n) Article 29(1), to ensure that transactions are cleared by a central counterparty, o) Article 29(2), first subparagraph, to have the systems, procedures and arrangements described there, p) Article 31(3), first sentence, to keep a record, or failing to keep it correctly, completely or in the prescribed manner, q) Article 31(3), second sentence, to make a record available, or failing to make it available completely or in time, r) Article 35(2), to transmit an application to a competent authority, or failing to transmit it completely or in the prescribed manner, s) Article 36(1), to make trading data available on a non-discriminatory and transparent basis, t) Article 36(3), first sentence, to respond, or failing to respond in the prescribed manner or in time, u) Article 36(3), second sentence, refusing access, v) Article 36(3), third sentence, also in conjunction with the fourth sentence, failing to give a detailed reason for a prohibition, or failing to give a notification or communication, or failing to do so in the prescribed manner, or w) Article 36(3), fifth sentence, failing to enable access, or failing to do so in time.
(6) It is a regulatory offence for whoever infringes Regulation (EU) No 600/2014 in the version of 23 October 2024, by wilfully or negligently 1. as market operator within the meaning of Article 4(1), point 18 of Directive 2014/65/EU, 2. as exchange operator operating a multilateral trading facility within the meaning of Article 4(1), point 22 of Directive 2014/65/EU or an organised trading facility within the meaning of Article 4(1), point 23 of Directive 2014/65/EU, or 3. as an undertaking connected with a market operator under no. 1 or with an exchange operator under no. 2, contrary to Article 37(3), enters into an arrangement with a benchmark provider that would prevent another central counterparty or another trading venue from accessing the information, rights or licences named in Article 37(1).
(7) It is a regulatory offence for whoever infringes Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012 (OJ L 257, 28.8.2014, p. 1; L 349, 21.12.2016, p. 5), as amended by Regulation (EU) 2016/1033 (OJ L 175, 30.6.2016, p. 1), by wilfully or negligently, as exchange operator or as operator of an open market within the meaning of section 48, failing, contrary to Article 53(1), first subparagraph, to make transaction data available to a central securities depository, or failing to make it available correctly, completely, in the prescribed manner or in time.
(7a) Infringements of Regulation (EU) 2022/2554 of the European Parliament and of the Council of 14 December 2022 on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014, (EU) No 909/2014 and (EU) 2016/1011 (OJ L 333, 27.12.2022, p. 1) by persons within the scope of this Act may be sanctioned under section 56(5e) and (6), nos. 1 and 2 of the Banking Act.
(8) The regulatory offence may, in the cases of subsection (1), no. 2 and subsection (3), be punished by an administrative fine of up to one hundred thousand euros, and in the other cases by an administrative fine of up to fifty thousand euros.
(9) The regulatory offence may, in the cases of subsections (2) and (5) to (7), be punished by an administrative fine of up to five million euros. As against a legal person or association of persons, an administrative fine may, in addition to the first sentence, be imposed of up to a higher amount of 10 per cent of the total turnover achieved by the legal person or association of persons in the business year preceding the authority's decision. In addition to the amounts named in the first and second sentences, the regulatory offence may be punished by an administrative fine of up to twice the economic advantage derived from the infringement. The economic advantage comprises profits made and losses avoided, and may be estimated.
(10) The regulatory offence may, in the cases of subsection (4), be punished by an administrative fine of up to five million euros. As against a legal person or association of persons, an administrative fine may, in addition to the first sentence, be imposed of a higher amount, which may not exceed 1. in the cases of subsection (4), first sentence, nos. 1 and 2, the higher of the amounts of five million euros and 10 per cent of the total turnover achieved by the legal person or association of persons in the business year preceding the authority's decision, 2. in the cases of subsection (4), first sentence, nos. 3 and 4, the higher of the amounts of fifteen million euros and 10 per cent of the total turnover achieved by the legal person or association of persons in the business year preceding the authority's decision. In addition to the amounts named in the first and second sentences, the regulatory offence may be punished by an administrative fine of up to three times the economic advantage derived from the infringement. The economic advantage comprises profits made and losses avoided, and may be estimated.
(11) Total turnover within the meaning of subsection (9), second sentence and subsection (10), second sentence is 1. in the case of the exchange operator, the amount of net turnover under the national law applicable to the exchange operator, consistent with Article 2, point 5 of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19; L 369, 24.12.2014, p. 79), as last amended by Directive 2014/102/EU (OJ L 334, 21.11.2014, p. 86), 2. in the case of credit institutions, payment institutions, securities institutions and financial services institutions, the total amount resulting from the national law applicable to the institution, consistent with Article 27, points 1, 3, 4, 6 and 7 or Article 28, points B1, B2, B3, B4 and B7 of Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (OJ L 372, 31.12.1986, p. 1; L 316, 23.11.1988, p. 51), as last amended by Directive 2006/46/EC (OJ L 224, 16.8.2006, p. 1), less value added tax and other taxes directly levied on that income, 3. in the case of insurance undertakings, the total amount resulting from the national law applicable to the insurance undertaking, consistent with Article 63 of Council Directive 91/674/EEC of 19 December 1991 on the annual accounts and consolidated accounts of insurance undertakings (OJ L 374, 31.12.1991, p. 7), as last amended by Directive 2006/46/EC (OJ L 224, 16.8.2006, p. 1), less value added tax and other taxes directly levied on that income, 4. in other cases, the amount of net turnover under the national law applicable to the undertaking, consistent with Article 2, point 5 of Directive 2013/34/EU. Where the persons named in the first sentence are legal persons or associations of persons that are at the same time parent undertakings or subsidiaries, the relevant total amount in the consolidated financial statements of the parent undertaking prepared for the largest group of undertakings applies in place of the total turnover of the legal person or association of persons. Where the consolidated financial statements for the largest group of undertakings are not prepared under the provisions named in the first sentence, total turnover is determined by reference to items in the consolidated financial statements comparable to those named in the first sentence. Where annual financial statements or consolidated financial statements for the relevant business year are not available, the annual or consolidated financial statements for the immediately preceding business year apply; where these are also not available, total turnover may be estimated.
(12) Section 17(2) of the Act on Regulatory Offences does not apply to infringements of the prohibitions and requirements referred to in subsections (9) and (10). Section 30 of the Act on Regulatory Offences also applies to legal persons or associations of persons active domestically through a branch or by way of the cross-border provision of services. Prosecution of the regulatory offences under subsections (9) and (10) is time-barred after three years.