UNLAWFUL CONDUCT ON THE CAPITAL MARKET
Journal Title: Challenges of the knowledge society ( Provocari ale societatii cunoasterii ) - Year 2018, Vol 10, Issue 12
Abstract
European Union Law had explicitly authorized the use of a double punishment (administrative and criminal) in the context of the fight against illegal conduct on the financial markets. Thus many facts and behaviours on the capital market have a double regulation, especially in the area of market abuse. For example, we have the misconduct of market manipulation punished with administrative (pecuniary) penalty and the market manipulation offense punished with criminal penalty. Criminal liability conditions are different from administrative liability but generating facts and behaviours are rigorously identical. Therefore acts of market manipulation are punished as misdemeanours (administrative procedure) when acts are committed without the form of guiltiness required by law to qualify them as offenses (criminal procedure). The question raised by European and Romanian regulations on financial market is the compatibility with or violation of the European Convention on Human Rights (ECHR). In order to ensure the integrity of markets and to enhance investor confidence in those markets, European law has created broad administrative offences, which punish the risk of harm to the market with severe, pecuniary and non-pecuniary penalties. Access to a subsequent court in administrative proceedings is an evasive guarantee that does not compensate the unfairness of the administrative procedure. ECHR case law concluded that market pressure and need for compliance in that field cannot prevail over international human rights obligations of States bound by the Convention (ECHR).
Authors and Affiliations
Cristian GHEORGHE
Keywords
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UNLAWFUL CONDUCT ON THE CAPITAL MARKET
European Union Law had explicitly authorized the use of a double punishment (administrative and criminal) in the context of the fight against illegal conduct on the financial markets. Thus many facts and behaviours on th...