Article 18
Administrative sanctions and other administrative measures
1.
Without prejudice to the supervisory powers referred to in Section 4 of Chapter 2 of Title IV of this Directive, including investigatory powers and powers of competent authorities to impose remedies, and the right of Member States to provide for and impose criminal sanctions, Member States shall lay down rules on administrative sanctions and other administrative measures and ensure that their competent authorities have the power to impose such sanctions and measures in respect of breaches of national provisions transposing this Directive and of Regulation (EU) 2019/2033, including where an investment firm:
(a)
fails to have in place internal governance arrangements as set out in Article 26;
(b)
fails to report information or provides incomplete or inaccurate information on compliance with the obligation to meet own funds requirements set out in Article 11 of Regulation (EU) 2019/2033 to the competent authorities, in breach of point (b) of Article 54(1) of that Regulation;
(c)
fails to report to the competent authorities, in breach of point (e) of Article 54(1) of Regulation (EU) 2019/2033, information about concentration risk or provides incomplete or inaccurate information;
(d)
incurs a concentration risk in excess of the limits set out in Article 37 of Regulation (EU) 2019/2033, without prejudice to Articles 38 and 39 of that Regulation;
(e)
repeatedly or persistently fails to hold liquid assets in breach of Article 43 of Regulation (EU) 2019/2033, without prejudice to Article 44 of that Regulation;
(f)
fails to disclose information, or provides incomplete or inaccurate information, in breach of the provisions set out in Part Six of Regulation (EU) 2019/2033;
(g)
makes payments to holders of instruments included in the own funds of the investment firm where Article 28, 52 or 63 of Regulation (EU) No 575/2013 prohibit such payments to holders of instruments included in own funds;
(h)
(i)
allows one or more persons that do not comply with Article 91 of Directive 2013/36/EU to become or remain a member of the management body.
Member States that do not lay down rules on administrative sanctions for breaches which are subject to national criminal law shall communicate to the Commission the relevant criminal law provisions.
The administrative sanctions and other administrative measures shall be effective, proportionate and dissuasive.
2.
The administrative sanctions and other administrative measures referred to in the first subparagraph of paragraph 1 shall include the following:
(a)
a public statement which identifies the natural or legal person, investment firm, investment holding company or mixed financial holding company responsible and the nature of the breach;
(b)
an order requiring the natural or legal person responsible to cease the conduct and to desist from repeating that conduct;
(c)
a temporary ban for members of the investment firm’s management body or any other natural persons who are held responsible on exercising functions in investment firms;
(d)
in case of a legal person, administrative pecuniary sanctions of up to 10 % 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 of the undertaking in the preceding business year;
(e)
in the case of a legal person, administrative pecuniary sanctions of up to twice the amount of the profits gained or losses avoided due to the breach where those profits or losses can be determined;
(f)
in the case of a natural person, administrative pecuniary sanctions of up to EUR 5 000 000 , or in the Member States whose currency is not the euro, the corresponding value in the national currency on 25 December 2019.
Where an undertaking referred to in point (d) of the first subparagraph is a subsidiary, the relevant gross income shall be the gross income resulting from the consolidated account of the ultimate parent undertaking in the preceding business year.
Member States shall ensure that where an investment firm is in breach of national provisions transposing this Directive or in breach of the provisions of Regulation (EU) 2019/2033, administrative sanctions may be applied by the competent authority to the members of the management body and to other natural persons who under national law are responsible for the breach.
3.
Member States shall ensure that, when determining the type of administrative sanctions or other administrative measures referred to in paragraph 1 and the level of administrative pecuniary sanctions, competent authorities shall take into account all relevant circumstances, including, where appropriate:
(a)
the gravity and the duration of the breach;
(b)
the degree of responsibility of the natural or legal persons responsible for the breach;
(c)
the financial strength of the natural or legal persons responsible for the breach, including the total turnover of legal persons or the annual income of natural persons;
(d)
the importance of profits gained or losses avoided by the legal persons responsible for the breach;
(e)
any losses incurred by third parties as a result of the breach;
(f)
the level of cooperation with the relevant competent authorities;
(g)
previous breaches by the natural or legal persons responsible for the breach;
(h)
any potential systemic consequences of the breach.
( 9 ) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).