Provisions on fines

(1) A regulatory offence is committed by whoever wilfully or negligently 1. contrary to section 5(4), first sentence, fails to provide information, or provides it incorrectly, incompletely or not in good time, or fails to produce a document, or produces it incorrectly, incompletely or not in good time; 2. contrary to section 5(4), fifth sentence, also in conjunction with the sixth sentence, or contrary to section 5(5), sixth sentence, (8), tenth sentence or (9), third sentence, fails to tolerate a measure; 3. contrary to section 20(8), appoints a manager; 4. contrary to section 21(6), appoints a member of a management or supervisory body; 5. contrary to a) section 24(1), first sentence, (2), first or fourth sentence, (3), first sentence, also in conjunction with the second or third sentence, or contrary to section 24(5), in each case also in conjunction with a statutory instrument under section 14(3), first or third sentence, or b) section 64(1) or (2), second sentence, sections 65, 66(1), first sentence, section 67(1) or (2), first sentence, section 70(1), first sentence, also in conjunction with the second sentence, section 71(1), first sentence or (4), first sentence, or section 72(1), first sentence, fails to make a notification, or makes it incorrectly or not in good time; 6. contrary to section 28(1), fails to ensure that a tied agent is reliable and suitable and informs a customer, and notifies the customer; 7. contrary to section 28(2), fails to retain evidence, or fails to retain it for at least five years; 8. contrary to section 37, no. 1, enters into or continues a correspondent relationship or other business relationship with a shell bank; 9. contrary to section 37, no. 2, first half-sentence, establishes or maintains an account; 10. contravenes an enforceable order under section 49, section 54 or section 68; or 11. contrary to section 66(2), first sentence or section 76(1), first or third sentence, fails to submit financial information, annual financial statements, a management report or an audit report, or submits it incorrectly, incompletely or not in good time.
(2) A regulatory offence is committed by whoever makes a repayment of liabilities arising from own funds instruments of a large securities institution, which must be fully paid up under Article 28(1), first subparagraph, letter b), Article 52(1), first subparagraph, letter a) or Article 63, first subparagraph, letter a) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1; L 208, 2.8.2013, p. 68; L 321, 30.11.2013, p. 6; L 193, 21.7.2015, p. 166; L 20, 25.1.2017, p. 3), as last amended by Regulation (EU) 2020/873 (OJ L 204, 26.6.2020, p. 4), to a holder of the own funds instruments concerned.
(3) A regulatory offence is committed by whoever, contrary to Article 5(1) of Commission Implementing Regulation (EU) 2017/1945 of 19 June 2017 laying down implementing technical standards with regard to notifications by and to applicant and authorised investment firms according to Directive 2014/65/EU of the European Parliament and of the Council (OJ L 276, 26.10.2017, p. 22), fails to make a notification, or makes it incorrectly, incompletely or not in good time.
(4) A regulatory offence is committed by whoever breaches Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 on the prudential requirements of investment firms and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014 and (EU) No 806/2014 (OJ L 314, 5.12.2019, p. 1), by 1. contrary to Article 38(1) in conjunction with Article 37(1), failing to make a return, or making it incorrectly, incompletely or not in good time; 2. contrary to Article 43(1), first subparagraph, a) failing to hold liquid assets for a period of more than one month, or b) failing to hold liquid assets, and persistently repeating this conduct; 3. contrary to Article 46(1), (2) or (3), Article 47, Article 48, Article 49(1), Article 50, Article 51(1) or Article 53, failing to make a disclosure, or making it incorrectly, incompletely or not in good time; or 4. contrary to Article 54(1), first subparagraph, letter b) or e) in conjunction with (2), first subparagraph, failing to make a return correctly or completely.
(4a) Contraventions 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 application of this Act may be sanctioned under section 56(5e) and (6), nos. 1 and 2 of the Banking Act.
(5) In the cases under subsection (1), nos. 3 to 5, letter a), no. 6, 8 and 9, and under subsections (2) and (4), the regulatory offence may be sanctioned with a fine of up to EUR 5 million. In the remaining cases under subsection (1) and in the cases under subsection (3), the regulatory offence may be sanctioned with a fine of up to EUR 100,000.
(6) In the case of a legal person or association of persons with an annual total turnover of more than EUR 50 million, a regulatory offence may, in derogation from subsection (5), first sentence, be sanctioned 1. under subsection (1), nos. 3 to 5, letter a), no. 6, 8 and 9, and subsection (4), and 2. under subsection (2), with a fine of up to 10 per cent of annual total turnover including the gross earnings under the second sentence. Gross earnings under the first sentence consist of interest income and similar income, income from shares, other equity interests, and fixed- or variable-yield securities, and income from commissions and fees of the undertaking in the financial year preceding the offence.
(7) In the case of a legal person or association of persons, a regulatory offence under subsection (1), nos. 3 to 5, letter a), no. 6, 8 and 9, and subsection (4) may, beyond subsection (5), first sentence or subsection (6), first sentence, no. 1, be sanctioned with a fine of up to twice the profit derived from, or loss avoided by, the breach, insofar as such profit or loss can be quantified.
(8) The regulatory offence may, in the cases under subsection (2), 1. in the case of a natural person, beyond subsection (5), first sentence, and 2. in the case of a legal person or association of persons, beyond subsection (5), first sentence or subsection (6), first sentence, no. 2, be sanctioned with a fine of up to twice the profits derived from, or losses avoided by, the breach, insofar as these can be quantified.
(9) Total turnover within the meaning of subsection (6), first sentence is 1. the total amount resulting from the national law applicable to the undertaking, in accordance with Article 27, points 1, 3, 4, 6 and 7, or Article 28, letter B, points 1 to 4 and 7 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 levied directly on that income; 2. in the case of insurance undertakings, the total amount resulting from the national law applicable to the insurance undertaking, in accordance 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 levied directly on that income; or 3. in other cases, the amount of net turnover in accordance with the national law applicable to the undertaking, in line 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). Where the legal person or association of persons is a parent undertaking or a subsidiary, the relevant total amount in the consolidated financial statements of the parent undertaking that are drawn up for the largest group of undertakings is decisive 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 drawn up under the provisions named in the first sentence, total turnover is to be determined in accordance with 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 financial year are not available, the annual or consolidated financial statements for the immediately preceding financial year are decisive; where these too are not available, total turnover may be estimated.
(10) The administrative authority within the meaning of section 36(1), no. 1 of the Act on Regulatory Offences is the Federal Financial Supervisory Authority.