Decree Administrative Fines in the Financial Sector

The Decree introduces three categories of fines. Where the first category is concerned, the system of fixed fines dating from before the entry into force of the above Act remains effective. This means that a fixed fine is imposed without allowance being made for aggravating or mitigating factors reflecting the specific circumstances of the case other than recidivism, in which event a double statutory maximum amount is in force. This category mainly concerns relatively mild, fairly frequent offences, such as failure to submit data to the supervisory authority in good time.

Where the second and third categories of fines are concerned, the Decree provides for a flexible system of fines with statutory maximum amounts of € 1,000,000 and € 4,000,000, respectively. There are two exceptions. The first exception applies if the supervisory authority is able to determine the amount of the advantage obtained as a result of the offence. In that case, the supervisory authority may use this amount as a basis for the determination of the level of the administrative fine. The second exception applies in the event of recidivism, in which case the double statutory maximum applies.

When determining the amount of the administrative fine in the second or third category, the supervisory authority must allow for the specific circumstances of the case. These circumstances include the gravity and duration of the offence and the degree to which the offence may be imputed to the offender. Irrespective of the applicable category of fines, the supervisory authority must, when imposing an administrative fine, allow for the offender’s financial capacity.

The mitigating and aggravating factors to be allowed for in determining the amount of the fine are also applicable to the relevant provisions from the pension legislation. Furthermore, where pension legislation is concerned, a supplementary (mitigating) factor will apply, allowing for the interests of the pension scheme members.