Article 38
Fines
1.
Where the Board finds that an entity referred to in Article 2 has intentionally or negligently committed one of the infringements listed in paragraph 2, the Board shall take a decision imposing a fine in accordance with paragraph 3.
An infringement by such an entity shall be considered to have been committed intentionally if there are objective factors which demonstrate that the entity or its management body or senior management acted deliberately to commit the infringement.
2.
The fines shall be imposed on entities referred to in Article 2 for the following infringements:
(a)
where they do not supply the information requested in accordance with Article 34;
(b)
where they do not submit to a general investigation in accordance with Article 35 or an on-site inspection in accordance with Article 36;
(c)
where they do not comply with a decision addressed to them by the Board pursuant to Article 29.
3.
The basic amount of the fines referred to in paragraph 1 of this Article shall be a percentage of the total annual net turnover including the gross income consisting of interest receivable and similar income, income from shares and other variable or fixed-yield securities, and commissions or fees receivable in accordance with Article 316 of Regulation (EU) No 575/2013 of the undertaking in the preceding business year, or, in the Member States whose currency is not the euro, the corresponding value in the national currency on 19 August 2014, and included within the following limits:
(a)
for the infringements referred to in paragraph 2(a) and (b), the basic amount shall amount to at least 0,05 % and shall not exceed 0,15 %;
(b)
for the infringements referred to in paragraph 2(c), the basic amount shall amount to at least 0,25 % and shall not exceed 0,5 %.
In order to decide whether the basic amount of the fines should be set at the lower, the middle or the higher end of the limits referred to in the first subparagraph, the Board shall take into account the annual turnover in the preceding business year of the entity concerned. The basic amount shall be at the lower end of the limit for entities whose annual turnover is below EUR 1 000 000 000 , the middle of the limit for the entities whose annual turnover is between EUR 1 000 000 000 and 5 000 000 000 and the higher end of the limit for the entities whose annual turnover is higher than EUR 5 000 000 000 .
4.
The basic amounts referred to in paragraph 3 shall be adjusted, if necessary, by taking into account the aggravating or mitigating factors referred to in paragraphs 5 and 6, in accordance with the relevant coefficients referred to in paragraph 9.
The relevant mitigating coefficient shall be applied one by one to the basic amount. If more than one mitigating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual mitigating coefficient shall be subtracted from the basic amount.
The relevant aggravating coefficient shall be applied one by one to the basic amount. If more than one aggravating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual aggravating coefficient shall be added to the basic amount.
5.
The following aggravating factors shall apply in respect of the fines referred to in paragraph 1:
(a)
the infringement has been committed intentionally;
(b)
the infringement has been committed repeatedly;
(c)
the infringement has been committed over a period exceeding three months;
(d)
the infringement has revealed systemic weaknesses in the organisation of the entity, in particular in its procedures, management systems or internal controls;
(e)
no remedial action has been taken since the infringement was identified;
(f)
the entity's senior management has not cooperated with the Board in carrying out its investigations.
6.
The following mitigating factors shall apply in respect of the fines referred to in paragraph 1:
(a)
the infringement has been committed over a period of less than 10 working days;
(b)
the entity's senior management can demonstrate that they have taken all measures necessary to prevent the infringement;
(c)
the entity has brought quickly, effectively and completely the infringement to the Board's attention;
(d)
the entity has voluntarily taken measures to ensure that a similar infringement cannot be committed in the future.
7.
Notwithstanding paragraphs 2 to 6, the fines applied shall not exceed 1 % of the annual turnover of the entity referred to in paragraph 1 concerned in the preceding business year.
By way of derogation from the first subparagraph, where the entity has directly or indirectly benefited financially from that infringement and where profits gained or losses avoided because of the infringement can be determined, the fine shall be at least equal to that financial benefit.
Where an act or omission of an entity referred to in paragraph 1 constitutes more than one infringement listed in paragraph 2, only the higher fine calculated in accordance with this Article and relating to one of those infringements shall apply.
8.
In the cases not covered by paragraph 2, the Board may recommend to national resolution authorities to take action in order to ensure that appropriate penalties are imposed in accordance with Articles 110 to 114 of Directive 2014/59/EU and with any relevant national legislation.
9.
The Board shall apply the following adjustment coefficients linked to aggravating factors when calculating the fines:
(a)
if the infringement has been committed repeatedly, for every time it has been repeated, an additional coefficient of 1,1 shall apply;
(b)
if the infringement has been committed over a period exceeding three months, a coefficient of 1,5 shall apply;
(c)
if the infringement has revealed systemic weaknesses in the organisation of the entity, in particular in its procedures, management systems or internal controls, a coefficient of 2,2 shall apply;
(d)
if the infringement has been committed intentionally, a coefficient of 2 shall apply;
(e)
if no remedial action has been taken since the infringement was identified, a coefficient of 1,7 shall apply;
(f)
if the entity's senior management has not cooperated with the Board in carrying out its investigations, a coefficient of 1,5 shall apply.
The Board shall apply the following adjustment coefficients linked to mitigating factors when calculating the fines:
(a)
if the infringement has been committed over a period of less than 10 working days, a coefficient of 0,9 shall apply;
(b)
if the entity's senior management can demonstrate that they have taken all measures necessary to prevent the infringement, a coefficient of 0,7 shall apply;
(c)
if the entity has brought quickly, effectively and completely the infringement to the Board's attention, a coefficient of 0,4 shall apply;
(d)
if the entity has voluntarily taken measures to ensure that a similar infringement cannot be committed in the future, a coefficient of 0,6 shall apply.