Pecuniary Sanctions Against Issuers in European Capital Market Law: Harming the Protected Investors?

Abstract

There is a wide consensus in European capital market law that a sound legal framework for the financial sector should rest on a strong supervisory and sanctioning regime. According to this rationale and following the paradigm of competition law, the new legal framework in European capital market law provides for high-magnitude pecuniary sanctions. The new sanctioning regime does not entail special provisions for issuers. However, sanctions imposed on legal entities are of a higher magnitude than sanctions imposed on natural persons. We claim that the imposition of high-magnitude pecuniary sanctions on issuers for violations of capital market law provisions as such does not have the deterrent effect that it is thought to have and, under specific circumstances, can work against the protection of investors. Moreover, the sanctioning provisions of competition law must be examined carefully before being considered as a paradigm for the structure of sanctions against issuers under capital market law. Furthermore, we claim that in cases where innocent investors are harmed, capital market law should resolve the dilemma between entity and manager liability by choosing the latter.