The New EU Criminal Law Competence in Action: The Proposal for a Directive on Criminal Sanctions for Insider Dealing and Market Manipulation. IES WORKING PAPER 5/2013

The aim of this paper is to analyse the proposed Directive on criminal sanctions for insider dealing and market manipulation (COM(2011)654 final), which represents the first exercise of the European Union competence provided for by Article 83(2) of the Treaty on the Functioning of the European Union. The proposal aims at harmonising the sanctioning regimes provided by the Member States for market abuse, imposing the introduction of criminal sanctions and providing an opportunity to critically reflect on the position taken by the Commission towards the use of criminal law. The paper will discuss briefly the evolution of the EU’s criminal law competence, focusing on the Lisbon Treaty. It will analyse the ‘essentiality standard’ for the harmonisation of criminal law included in Article 83(2) TFEU, concluding that this standard encompasses both the subsidiarity and the ultima ratio principles and implies important practical consequences for the Union’s legislator. The research will then focus on the proposed Directive, trying to assess if the Union’s legislator, notwithstanding the ‘symbolic’ function of this proposal in the financial crisis, provides consistent arguments on the respect of the ‘essentiality standard’. The paper will note that the proposal raises some concerns, because of the lack of a clear reliance on empirical data regarding the essential need for the introduction of criminal law provisions. It will be stressed that only the assessment of the essential need of an EU action, according to the standard set in Article 83(2) TFEU, can guarantee a coherent choice of the areas interested by the harmonisation process, preventing the legislator to choose on the basis of other grounds.

An Assessment of the Penalties System for Infringements of EU Competition Law: Can Personal Sanctions be the Missing Piece of the Puzzle? IES WORKING PAPER 6/2013

Competition law seeks to protect competition on the market as a means of enhancing consumer welfare and of ensuring an efficient allocation of resources. In order to be successful, therefore, competition authorities should be adequately equipped and have at their disposal all necessary enforcement tools. However, at the EU level the current enforcement system of competition rules allows only for the imposition of administrative fines by the European Commission to liable undertakings. The main objectives, in turn, of an enforcement policy based on financial penalties are two fold: to impose sanctions on infringing undertakings which reflect the seriousness of the violation, and to ensure that the risk of penalties will deter both the infringing undertakings (often referred to as 'specific deterrence') and other undertakings that may be considering anti-competitive activities from engaging in them (often referred to as 'general deterrence'). In all circumstances, it is important to ensure that pecuniary sanctions imposed on infringing undertakings are proportionate and not excessive. Although pecuniary sanctions against infringing undertakings are a crucial part of the arsenal needed to deter competition law violations, they may not be sufficient. One alternative option in that regard is the strategic use of sanctions against the individuals involved in, or responsible for, the infringements. Sanctions against individuals are documented to focus the minds of directors and employees to comply with competition rules as they themselves, in addition to the undertakings in which they are employed, are at risk of infringements. Individual criminal penalties, including custodial sanctions, have been in fact adopted by almost half of the EU Member States. This is a powerful tool but is also limited in scope and hard to implement in practice mostly due to the high standards of proof required and the political consensus that needs first to be built. Administrative sanctions for individuals, on the other hand, promise to deliver up to a certain extent the same beneficial results as criminal sanctions whilst at the same time their adoption is not likely to meet strong opposition and their implementation in practice can be both efficient and effective. Directors’ disqualification, in particular, provides a strong individual incentive for each member, or prospective member, of the Board as well as other senior executives, to take compliance with competition law seriously. It is a flexible and promising tool that if added to the arsenal of the European Commission could bring balance to the current sanctioning system and that, in turn, would in all likelihood make the enforcement of EU competition rules more effective. Therefore, it is submitted that a competition law regime in order to be effective should be able to deliver policy objectives through a variety of tools, not simply by imposing significant pecuniary sanctions to infringing undertakings. It is also clear that individual sanctions, mostly of an administrative nature, are likely to play an increasingly important role as they focus the minds of those in business who might otherwise be inclined to regard infringing the law as a matter of corporate risk rather than of personal risk. At the EU level, in particular, the adoption of directors’ disqualification promises to deliver more effective compliance and greater overall economic impact.

EU Sanctions Policy towards Russia: The Sanctioner-Sanctionee’s Game of Thrones. CEPS Working Document No. 402/January 2015

Since Russia’s annexation of the Crimean peninsula and the start of the conflict in the Donbass region, the EU has introduced three waves of restrictive measures against Russia, which are regularly updated. Having thus expanded from measures targeting individuals to entire sectors, the current EU sanctions policy impacts Russia’s financial markets, energy sector and defence industry. On top of this, new bans affect EU investments, services and trade in Crimea and Sevastopol. While they hurt the Russian economy, the EU sanctions also have a boomerang effect, especially in conjunction with the countersanctions imposed by the Kremlin on EU food imports. In this lose-lose situation, the usefulness of the EU sanctions has been called into doubt, in particular in those EU member states that are the most economically intertwined with Russia. How successful has the EU been so far in pushing its case with the Kremlin and what moves are left for the two main actors in the sanctioner-sanctionee ‘Game of Thrones’? This Working Document offers a SWOT analysis of the EU sanctions policy towards Russia and identifies the Strengths for the EU to cultivate, Weaknesses to minimise, Opportunities to seize and Threats to counteract.

The Economic Impact of Sanctions against Russia: Much ado about very little. CEPS Commentary, November 2015

The decision process leading to the imposition of sanctions against Russia in response to its annexation of Crimea and its subsequent military intervention in Eastern Ukraine has been very difficult for the EU, with some member states claiming that they have been particularly hard hit because exports to Russia are important to their economies. This commentary shows, however, that the economic cost in terms of lost exports, and thus potentially jobs, has in reality been negligible.

The consequences of the Western financial sanctions on the Russian economy. OSW COMMENTARY NUMBER 203/23.03.2016

Although they are not the deciding factor, the Western financial sanctions are nevertheless an important factor affecting the deteriorating economic situation in Russia. They have significantly undermined the opportunities which Russian companies have to attract foreign capital, thus contributing to the deterioration of their financial condition (which is particularly prominent in the case of energy firms subject to sanctions). Therefore, Russian businesses need more support from the state. However, this support is becoming more difficult due to the dramatic fall in oil prices – revenues from oil exports are the main source of budget revenue.

The Effects of Sanctions and Counter-Sanctions on EU-Russian Trade Flows. CEPS Commentary, 5 July 2016

After Russia annexed Crimea in early 2014 and then intervened, manu militari, in the Eastern part of Ukraine, the European Union wanted to show its disapproval and put pressure on Russia to change its behaviour. A wide variety of measures were taken, including the imposition of individual restrictions, such as asset freezes and travel bans, but also the suspension of development loans from the EBRD. But the EU (together with the United States) also took, in July and September 2014, a set of broader measures: limited access to EU primary and secondary capital markets for targeted Russian financial institutions and energy and defence companies; export and import bans on trade in arms; an export ban for dual-use goods and reduction of Russia’s access to sensitive technologies and services linked to oil production.