Harmonising Criminal Laws and EU's Significant Bankers: First Use of Article 83 (2) TFEU, Rights of the Accused and Learning Organisations

Forthcoming in Zwaan, J. de et all. Governance and Security Issues of the European Union. Challenges Ahead, The Hague (NLD), T.M.C. Asser Press (Springer), 2017

15 Pages Posted: 12 Sep 2016

See all articles by Ernst van Bemmelen van Gent

Ernst van Bemmelen van Gent

IUS Commune Research School; Utrecht University - Faculty of Law; Bynkershoek Research Center on Legal Education; The Hague University - LLB Program Dutch Law (HBO-Rechten)

Date Written: May 1, 2016

Abstract

This chapter critically reviews the harmonisation of national criminal laws pertaining to bankers active in the 100-plus significant supervised banks of the European bank union (“Significant Bankers”). It discusses the tension between administrative sanctions as mentioned in the Market Abuse Directive (596/2014) and the criminal sanctions as mentioned in Criminal Sanction Directive (2014/57). The chapter is limited in scope and deals with insider trading and market manipulation as international financial crimes only. It is not argued that harmonisation of criminal laws should not take place on the basis of article 86 (2) TFEU. However, it is argued that compliance by Significant Bankers with these substantive rules will not increase, if and when both sanction arrangements are actively made applicable on them. Reasons for that assertion are certain of their rights in criminal procedure, including the legal concepts of ne bis in idem (double jeopardy) and nemo tenetur (self-incrimination). The argument is also based on the regulatory science’s and organisational science’s insight that “learning organisations” improve their performance when mistakes are discussed and reviewed and subsequently transformed to innovations and changed behaviour. Hence the argument to restrict the regulatory arrangement around Significant Bankers to the administrative sanctions, and to instruct public prosecutors not to take action against Significant Bankers on the basis of national laws implementing the Criminal Sanction Directive (2014/17).

Keywords: regulation, administrative sanctions, criminal sanctions, learning organisations, double jeopardy, self-incrimination

JEL Classification: K23, K42

Suggested Citation

van Bemmelen van Gent, Ernst, Harmonising Criminal Laws and EU's Significant Bankers: First Use of Article 83 (2) TFEU, Rights of the Accused and Learning Organisations (May 1, 2016). Forthcoming in Zwaan, J. de et all. Governance and Security Issues of the European Union. Challenges Ahead, The Hague (NLD), T.M.C. Asser Press (Springer), 2017. Available at SSRN: https://ssrn.com/abstract=2836514

Ernst Van Bemmelen van Gent (Contact Author)

IUS Commune Research School ( email )

Netherlands

Utrecht University - Faculty of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

Bynkershoek Research Center on Legal Education ( email )

Groot Hertoginnelaan 3
The Hague, 2517 EA
Netherlands

The Hague University - LLB Program Dutch Law (HBO-Rechten) ( email )

Johana Westerdijkplein 75
The Hague, Zuid Holland 2521 EN
Netherlands

Register to save articles to
your library

Register

Paper statistics

Downloads
34
Abstract Views
162
PlumX Metrics