Cassatielunch

Op 7 februari 2019 vond de maandelijkse cassatielunch van de Haagse cassatiebalie weer plaats. Dit keer waren wij te gast bij AantjesZevenberg te Rijswijk. Spreker was Marcus Wagemakers over de prejudiciële procedure bij het Hof van Justitie van de Europese Unie (HvJEU)

White collar crime

On 5 February 2019 Marcus held a lecture at the Erasmus University Rotterdam about white collar crime in the financial regulatory environment. Topics like the nature of – and drivers behind white collar crime were treated. Furthermore, Marcus elaborated on the criminal and regulatory enforcement mechanisms.

ESMA reports on accepted market practices under MAR

The European Securities and Markets Authority (ESMA) has published on 16 January 2019 its annual report on the application of accepted market practices (AMP) in accordance with the Market Abuse Regulation (MAR). AMPs are a defence against allegations of market manipulation. In particular, dealings in financial markets which are carried out for legitimate reasons and in conformity with an established AMP will not constitute market manipulation.

Vide: Market Abuse Regulation

Mediation in conflicten met financiële instellingen door Franse AMF

Mediation door de AMF

Problemen met een financiële tussenpersoon of uitgevende instelling? De AMF Ombudsman en haar team staan tot uw beschikking om uw geschil in der minne op te lossen binnen een redelijke termijn. AMF Mediation is een gratis openbare dienst waarin de Franse wet voorziet.

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Vous rencontrez une difficulté avec un intermédiaire financier ou un émetteur ? Le Médiateur de l’AMF Français et son équipe sont à votre disposition pour résoudre, à l’amiable, votre différend dans un délai raisonnable. La Médiation de l’AMF est un service public gratuit prévu par la loi.

Zie/voire: AMF

Brexit. Financial Conduct Authority (FCA): introducing temporary permissions regime

The British Government announced that it might introduce a temporary permissions regime for inbound passporting EEA firms and funds.

If there is not an implementation period and the passporting regime falls away when the UK leaves the EU, the temporary permissions regime will provide a backstop to ensure firms and funds can continue their business with minimal disruption.

It will allow inbound firms to continue operating in the UK within the scope of their current permissions for a limited period after exit day, while seeking full UK authorisation. It will also allow funds with a passport to continue temporarily marketing in the UK.

Vide the Announcement of the FCA

Poland must immediately suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges

On 2 October 2018 the Commission brought an action for failure to fulfil obligations before the Court of Justice.

The Commission argues that (i)  by lowering the retirement age and applying that new retirement age to judges appointed to the Supreme Court up until 3 April 2018 and (ii) granting the President of the Republic of Poland the discretion to extend the active judicial service of Supreme Court judges, Poland has infringed EU law.

On 3 April 2018 the new Polish Law on the Supreme Court (‘the Law on the Supreme Court’) entered into force. Under that Law, the retirement age for Supreme Court judges has been lowered to 65.

The new age limit applies as from the date of entry into force of that Law, including with regard to judges of that court appointed before that date. It is possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this is subject to the submission of a statement indicating the desire of the judge concerned to continue to perform his duties and a certificate stating that his state of health allows him to serve and must be consented to by the President of the Republic of Poland.

In giving that consent, the President of the Republic of Poland would not be bound by any criterion and his decision would not be subject to any form of judicial review.

The Court grants the Commission’s request for interim measures.

Vide the  Decision in French

 

 

Judgement of the court in Case C-219/17 Berlusconi and Fininvest

The Court of Justice alone has jurisdiction to determine whether the legality of the ECB’s decision opposing the acquisition by Fininvest and Mr Berlusconi of a qualifying holding in Banca Mediolanum is affected by any defects vitiating the preparatory acts by the Banca d’Italia.

The Court ruled that the ECB has exclusive competence to decide whether or not to authorise the proposed acquisition at the end of the procedure at issue, which is laid down in the context of the banking union’s single supervisory mechanism, for the effective and consistent functioning of which the ECB is responsible.

Consequently, the EU Courts alone have jurisdiction to determine, as an incidental matter, whether the legality of the ECB’s decision of 25 October 2016 is affected by any defects of the preparatory acts adopted by the Banca d’Italia. The legality of those acts cannot be reviewed by the national courts. It is irrelevant in that regard that an action such as the ‘azione di ottemperanza’ has been brought before a national court.

Vide the

Decision

Opinion Advocate General Juliane Kokott:the Republic of Latvia has failed to fulfil its obligations under the Statute of the ESCB and of the ECB.

Mr Ilmārs Rimšēvičs, Governor of the Latvijas Banka (Bank of Latvia), was suspended from office by a decision of the Korupcijas novēršanas un apkarošanas birojs (Office for the prevention and combating of corruption, Latvia) because he is suspected of having traded in influence for the benefit of a Latvian bank.

The actions brought by Mr Rimšēvičs (C-202/18) and the European Central Bank (ECB) (C-238/18) against that decision are the first cases brought before the Court of Justice on the basis of the power conferred on it by Article 14.2 of the Statute of the European System of Central Banks and of the European Central Bank1 (‘the ESCB’ and ‘the ECB’, respectively) for a ruling on decisions relieving Governors of the central banks of the Member States from office.

That power derives, inter alia, from the fact that Governors of the central banks of the Member States whose currency is the euro, even though appointed and relieved from office by the Member States, are also members of a body forming part of an EU institution, that is, the Governing Council of the ECB.

In the Opinion, Advocate General Juliane Kokott proposes that the Court should rule that, by prohibiting Mr Rimšēvičs from performing his duties as Governor of the Bank of Latvia without providing the Court with evidence of the acts which it alleges he committed, the Republic of Latvia has failed to fulfil its obligations under the Statute of the ESCB and of the ECB. That statute provides that ‘a Governor may be relieved from office only if he no longer fulfils the conditions required for the performance of his duties or if he has been guilty of serious misconduct’. As the Advocate General points out, the Court’s task is to determine whether a Member State which has relieved a Governor of its central bank from office has shown to the requisite legal standard that those conditions are met.

First of all, the Advocate General observes that the measures adopted in the present case in respect of Mr Rimšēvičs, although temporary, nonetheless constitute being ‘relieved from office’ within the meaning of Article 14.2 of the Statute of the ESCB and of the ECB, because, in order for a measure to fall within its scope, that notion concerns not the form of that measure and its status under national law, but its substance and tangible effects. In the present case, the tangible effect of the measures imposed on Mr Rimšēvičs is that he is prevented from performing his duties as Governor of the Bank of Latvia and as member of the Governing Council of the European Central Bank.

Vide:

opinion advocate general

ESMA tells firms to provide clients with information on the implications of Brexit

The European Securities and Markets Authority (ESMA) has issued a statement on 19 December 2018 to remind firms, providing investment services, of their obligations to provide clients with information on the implications of the United Kingdom’s (UK) withdrawal from the European Union (EU) on their relationship with clients and on the impact of Brexit-related measures that a firm has taken or intends to take.

The statement is addressed to UK firms that provide services in EU27 Member States, as well as EU27 firms that deal with clients based in the UK.