REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive)
Date: 2020-03-13
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: fight against crime, financial control, insider trading, investment protection, penalty, restriction on competition, selective dissemination of information, stock-exchange transaction

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 13.3.2020  COM(2020) 99 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2014/57/EU of the European Parliament and of the Council of 16 April 2014 on criminal sanctions for market abuse (market abuse directive)  
 
 
1.  INTRODUCTION 

1.1.  Background 

Directive 2014/57/EU of the European Parliament and of the Council on criminal sanctions 
for market  abuse (market  abuse  directive)  (‘the  Directive’)1 was adopted  on 16 April 2014. 
Member States had to adopt and publish the necessary national measures in order to comply 
with the Directive by 3 July 2016, and to apply those measures from the same date, subject to 
the entry into force of Regulation (EU) No 596/2014 of the European Parliament and of the 
Council of 16 April 2014 on market abuse (market abuse regulation) (‘the Regulation’)2. 

The Directive and the Regulation modernise and strengthen the Union rules on safeguarding 
market  integrity  and  investor  protection  which  were  previously  provided  for  by  Directive 
2003/6/EC  of  the  European  Parliament  and  of  the  Council  on  insider  dealing  and  market 
manipulation  (market  abuse)3 and  Commission  Directives  2003/124/EC,  2003/125/EC  and 
2004/72/EC. 

The Directive complements the Regulation by ensuring that the most serious offences against 
the  Regulation  are  criminalised,  and  by  introducing  minimum  rules  for  criminal  sanctions 
with  regard  to  insider  dealing,  unlawful  disclosure  of  inside  information  and  market 
manipulation. 

The  Directive  was  adopted  under  Article  83(2)  of  the  Treaty  on  the  Functioning  of  the 
European Union, according to which ‘directives may establish minimum rules with regard to 
the definition of criminal offences and sanctions’, if ‘the approximation of criminal laws and 
regulations of the Member States proves essential to ensure the effective implementation of a 
Union policy in an area which has been subject to harmonisation measures’.  

1.2.  Purpose and main elements of the Directive 

The  Directive  establishes  minimum  rules  for  criminal  sanctions  for  insider  dealing,  for 
unlawful  disclosure  of  inside  information  and  for  market  manipulation  (‘market  abuse 
offences’).  It  ensures  the  effective  implementation  of  the  Regulation  by  requiring  Member 
States to introduce criminal offences and sanctions for at least serious cases of these market 
abuse  offences.  It  thus  contributes  to  ensuring  the  integrity  of  financial  markets  and  to 
enhancing investor protection and confidence in those markets. 

In  accordance  with  Protocols  22  and  21  to  the  Treaty  on  European  Union,  respectively, 
Denmark and the United Kingdom did not take part in the adoption of the Directive and are 
therefore not bound by it or subject to its application. Ireland, on the other hand, exercised its 
right to take part in the adoption and application of the Directive.  

1 OJ L173, 12.6.2014, p. 179. 
2 OJ L173, 12.6.2014, p. 1. 
3 OJ L 96, 12.4.2003, p.16. 

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The main elements of the Directive are the obligations for Member States to 

  criminalise at least serious cases of market abuse offences (Articles 3 to 54);  
  criminalise incitement, aiding and abetting market abuse offences, and the attempt to 

commit any of these offences (Article 6); 

  establish  minimum  rules  on  criminal  penalties  for  natural  persons,  in  particular  a 
maximum sanction of at least four years for insider dealing and market manipulation, 
and  a  maximum  sanction  of  at  least  two  years  for  unlawful  disclosure  of  inside 
information (Article 7); 

  provide for the liability of and sanctions for legal persons for market abuse offences 

(Articles 8 and 9); 

  establish their jurisdiction over market abuse offences (Article 10); and 
 

request those responsible for the training of judicial and law enforcement personnel to 
provide appropriate training on the Directive (Article 11).  

1.3.  Scope of the report; methodology; procedure 

This report assesses the implementation of the Directive in accordance with Article 12 of the 
Directive, which mandates the Commission to report to the European Parliament and to the 
Council on the functioning of the Directive (below sections 2 and 3) and, if necessary, on the 
need to amend it (below section 4).  

The  description  and  analysis  in  this  report  are  primarily  based  on  the  information  that 
Member  States  provided  to  the  Commission  through  notification  of  national  measures 
transposing the Directive. The report focuses on the measures Member States have taken to 
transpose  the  Directive  into  their  national  law.  It  assesses  whether  Member  States  have 
implemented  the  Directive  within  the  given  timeframe,  and  whether  national  legislation 
achieves the objectives and fulfils the requirements of the Directive. 

At  the  time  of  drafting  this  report,  all  participating  Member  States  had  notified  complete 
transposition of the Directive.5 The Commission started to assess the compliance of national 
measures  with  the  Directive  as  soon  as  Member  States  communicated  them.  As  a  result, 
infringement  procedures  for  non-conformity  were  launched  in  14  cases.  During  informal 
contacts  with  Member  States,  a  number  of  transposition  issues  could  be  resolved  in 
cooperation with the Member State concerned, and the relating infringement procedures for 
non-conformity  were  closed  in  five  cases.  These  issues  are  not  included  in  this  report. 
Infringement procedures are on-going in nine cases. In six of these, a letter of formal notice 
was issued.  

4 All articles without further indication refer to the Directive.  
5 Following the expiry of the transposition deadline of 3 July 2016, 18 Member States had not or not completely 
communicated  transposition  measures  to  the  European  Commission.  The  Commission  sent  letters  of  formal 
notice  to  these  Member  States  for  either  non-communication  or  for  partial  communication,  as  well  as  an 
additional  reasoned  opinion  to  one  Member  State.  All  these  infringement  proceedings  have  meanwhile  been 
closed.  

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2.  GENERAL ASSESSMENT 

The Commission’s main objective is to ensure that all Member States dispose of sufficiently 
effective,  proportionate  and  dissuasive  criminal  law  measures  to  protect  the  integrity  of 
financial markets against abuse.  

A  detailed  assessment  of  notified  transposition  measures  confirmed  that  a  majority  of 
Member  States  has  transposed  the  Directive  completely  and  correctly  in  all  its  aspects. 
Moreover, it can be stated that findings of non-conformity often concerned relatively minor 
issues.  For  instance,  no  transposition  issues  were  found  with  regard  to  the  provisions  on 
inciting, aiding and abetting, and attempt (Article 6); on sanctions for legal persons (Article 
9);  on  jurisdiction  (Article  10);  and  on  traning  (Article  11).  The  transposition  of  criminal 
penalties  for  natural  persons  (Article  7)  and  liability  of  legal  persons  (Article  8)  only  gave 
rise to concerns in two Member States, respectively. A large majority of Member States has 
correctly  transposed  the  criminalisation  of  the  market  abuse  offences,  i.e.  insider  dealing 
(Article  3),  unlawful  disclosure  of  inside  information  (Article  4)  and  market  manipulation 
(Article 5).  

Having  said  this,  the  following  transposition  issues  were  noted  during  the  transposition 
checks: 

 

 
 

In  a  number  of  Member  States,  Article  1  (subject  matter  and  scope)  has  not  been 
transposed correctly and comprehensively; 
In one Member State, definitions (Article 2) were missing or incomplete; 
Insider  dealing  and  recommending  that  another  person  engage  in  insider  dealling 
(Article 3) have not been fully criminalised in three Member States; 

  One  Member  State  has  not  comprehensively  criminalised  unlawful  disclosure  of 

inside information (Article 4);  

  The transposition of Article 5 (market manipulation) was often incomplete as some of 
its elements were not covered in the national legislation. With respect to Article 1(4), 
which extends the scope of Article 5, a number of Member States did not specifically 
include all required elements.  

Given  that  the  above  mentioned  issues  of  compliance,  which  are  analysed  in  detail  under 
section  3,  are  still  pending,  the  Commission  has  taken  all  appropriate  measures,  including 
initiating infringement proceedings pursuant to Article 258 of the Treaty on the Functioning 
of  the  European  Union,  to  ensure  conformity  with  the  Directive  throughout  the  European 
Union. 

3.  SPECIFIC POINTS OF ASSESSMENT 

3.1.  Subject matter and scope (Article 1) 

Article  1  of  the  Directive  lays  down  the  subject  matter  and  scope  of  the  Directive.  In  that 
respect,  it  not  only  lists  the  financial  instruments  to  which  the  Directive  applies  (positive 

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scope  of  application,  paragraph  2)  but  also  establishes  where  the  Directive  does  not  apply 
(paragraph  3).  Article  1(4)  extends  the  scope  of  Article  5  (market  manipulation)  to  certain 
spot  commodity  contracts,  to  certain  types  of  financial  instruments  relating  to  spot 
commodity contracts, and to behaviour in relation to benchmarks. Paragraph 5 clarifies that 
the  Directive  applies  to  any  transaction,  order  or  behaviour  concerning  any  financial 
instrument  as  referred  to  in  paragraphs  2  and  4,  irrespective  of  whether  or  not  such 
transaction, order or behaviour takes place on a trading venue. 

A majority of Member States has transposed Article 1 completely and in conformity with the 
Directive.  In the  remaining Member States, the following problems  could  be identified  and 
are still pending: 

  Article  1(2),  on  the  application  of  the  Directive  to  different  types  of  financial 
instruments,  was  not  fully  transposed  in  two  Member  States  as  the  legislation  is 
limited  to  trading  on  certain  multilateral  trading  facilities  (MTFs)  (point  (b))  and 
organised  trading  facilities  (OTFs)  (point  (c))  and/or  does  not  include  all  financial 
instruments.  

  Article  1(3),  defining  the  negative  scope  of  the  Directive  (such  as  the  exemption  of 
trading in own shares, securities and monetary policy), was not transposed in one MS 
as trading in securities or associated instruments for stabilisation purposes (point (b)) 
is not mentioned, contrary to the other exemptions.  

  Article  1(4)(a),  which  extends  the  scope  of  Article  5  to  certain  spot  commodity 
contracts  was  incompletely  transposed  in  two  Member  States,  as  the  national 
transposing provisions fail to apply to any other ‘behaviour’ that has such an effect. In 
one Member State, this provision has not been transposed at all. 

  Article 1(4)(b) was incompletely transposed by two Member State, where the national 
transposing measure refers to ‘transaction’ and ‘trade order’ but fails to mention other 
‘behaviour’ or ‘bid’. 

  Article  1(4)(c),  providing  that  Article  5  shall  also  apply  to  behaviour  in  relation  to 

benchmarks, was not (fully) transposed by four Member States. 

3.2.  Definitions (Article 2) 

Article  2  defines  14  technical  terms  that  are  central  for  the  application  of  the  Directive. 
Except for one, all Member States have correctly transposed the definitions of these terms.  

In one Member State, a definition of the term ‘benchmark’ (no (6)) is still missing.  

3.3.  Offences 

Articles  3,  4  and  5  oblige  Member  States  to  ensure  the  criminalisation  of  three  types  of 
market abuse offences, at least in serious cases and when committed intentionally:  

 

Insider  dealing,  recommending  or  inducing  another  person  to  engage  in  insider 
dealing (Article 3); 

  Unlawful disclosure of inside information (Article 4); and 

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  Market manipulation (Article 5). 

3.3.1.  Horizontal issues 

As  the  Directive  provides  for  minimum  rules,  Member  States  are  free  to  adopt  or  maintain 
more stringent criminal law rules for market abuse. 

Member States may, for example, criminalise cases of market abuse that are not considered 
‘serious’.  Indeed,  most  Member  States  have  used  this  option  with  regard  to  unlawful 
disclosure. With regard to the other two offences, only a minority of Member States did so. 
However,  even  those  that  went  beyond  the  minimum  requirement  generally  did  so  without 
reference to the non-exhaustive lists of criteria in Recitals 11 and 12. This is analysed further 
below in section 4.1. Moreover, the possibility for Member States to limit criminalisation to 
serious  cases  was  sometimes  used  to  justify  a  reduction  of  the  elements  of  the  crime.  For 
instance, the alternative to manipulate the market through ‘any other behaviour’ in Art. 5(2)(a) 
was not transposed, creating a lacuna in the criminalisation of that offence.  

The Directive does not require Member States to criminalise the negligent commission of the 
offences,  although  Recital  21  explicitly  states  that  Member  States  may  provide  that  market 
manipulation committed recklessly or by serious negligence constitutes a criminal offence. A 
few Member State have availed themselves of this possibility and have criminalised negligent 
behaviour  in  some  form,  e.g.  where  a  person  ought  to  know  that  information  is  inside 
information. This is analysed further below in section 4.3. 

Some Member States added elements to the definition of the offence that are not required by 
the  Directive,  particularly  with  regard  to  the  mental  element  (mens  rea).  For  instance,  a 
specific  intent  to  gain  an  unlawful  advantage  or  to  cause  an  unlawful  disadvantage  was 
required under the national legislation. The Commission considered this to be permissible as 
an expression of the ‘seriousness’ of the case.  

3.3.2.  Insider dealing 

Article  3(1)  stipulates  that  Member  States  shall  take  the  necessary  measures  to  ensure  that 
insider  dealing,  recommending  or  inducing  another  person  to  engage  in  insider  dealing, 
constitute criminal offences (paragraph 1). For the purposes of the Directive, insider dealing 
arises where a person possesses inside information and uses that information by acquiring or 
disposing  of,  for  its  own  account  or  for  the  account  of  a  third  party,  directly  or  indirectly, 
financial instruments to which that information relates (paragraph 2).  

The first subparagraph of paragraph 3 lists the persons to whom the article applies. Moreover, 
the second subparagraph specifies that the article also applies to any person who has obtained 
inside information under circumstances other than those referred to in the first subparagraph 
where  that  person  knows  that  it  is  inside  information.  Two  Member  States  have  not 
transposed that latter obligation (‘other circumstances’).  

The  offence  of  recommending  or  inducing  another  person  to  engage  in  insider  dealing  is 
further defined in Article 3(6). One Member State has not fully transposed this offence, as it 
is not criminalised if the other person does not follow the recommendation.  

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3.3.3.  Unlawful disclosure of inside information 

Pursuant  to  Article  4(1),  the  unlawful  disclosure  of  inside  information  as  defined  in 
paragraphs 2 to 5 constitutes a criminal offence. 

At the time of drafting this report, only one Member State has not yet brought its legislation 
fully in compliance with this article because it has not criminalised the onward disclosure of 
recommendations or inducements as required by Article 4(4). 

3.3.4.  Market manipulation 

Article 5 obliges Member States to criminalise market manipulation as defined in that article. 
Essentially,  the  offence  comprises  entering  into  a  transaction,  placing  an  order  to  trade, 
disseminating information, or any other behaviour which gives false or misleading signals to 
the markets or secures the price of a financial instrument at an abnormal level. 

This  article  gave  rise  to  the  largest  number  of  transposition  issues.  In  total,  over  20  issues 
were identified in seven different Member States.  

All  of  these  seven  Member  States  had  problems  with  the  transposition  of  paragraph  2(a), 
according  to  which  market  manipulation  comprises  ‘entering  into  a  transaction,  placing  an 
order  to  trade  or  any  other  behaviour  which  (i)  gives  false  or  misleading  signals  as  to  the 
supply  of,  demand  for,  or  price  of,  a  financial  instrument  or  a  related  spot  commodity 
contract; […]’ [emphasis added].  

In all instances, the concerned Member States failed to include ‘any other behaviour’ in the 
definition of the offence. Additionally, three Member State did not include spot commodity 
contracts. One Member State did not cover the subparagraph at all. 

Similarly, with regard to subparagraphs 2(b) (deceptive behaviour which affects the price of 
financial  instruments  or  a  related  spot  commodity  contract)  and  (c)  (disseminating 
information through the media which gives false or misleading signals, in order to obtain an 
advantage),  four  and  three  Member  States,  respectively,  had  not  covered  all  forms  of 
behaviour and/or spot commodity contracts.  

Finally,  four  Member  States  had  not  transposed  all  the  elements  of  paragraph  2(d)  (market 
manipulation  with  regard  to  the  calculation  of  a  benchmark),  as  this  subparagraph  was  not 
transposed  at  all  or  did  not  cover  ‘any  other  bahaviour’  to  manipulate  the  calculation  of 
benchmarks.  

3.4.  Incitement, aiding, abetting, attempt (Article 6) 

Article 6(1) obliges Member States to criminalise incitement, aiding and abetting in relation 
to  the  offences  established  under  Articles  3  (except  recommending  or  inducing  another 
person to engage in insider dealing), 4 and 5 of the Directive.  

Pursuant to Article 6(2), attempt shall also be punishable as a criminal offence but only with 
regard to Articles 3 (including recommending or inducing another person to engage in insider 
dealing) and 5, not for unlawful disclosure of inside information (Article 4).  

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All  Member  States  comply  with  these  requirements,  which  are  generally  established  in  the 
general part of their respective criminal codes.  

3.5.  Criminal penalties for natural persons (Article 7) 

Article 7(1) obliges Member States to ensure that the offences referred to in Articles 3 to 6 
are punishable by effective, proportionate and dissuasive criminal penalties. 

Under  Article  7(2),  insider  dealing  and  market  manipulation  must  be  punishable  by  a 
maximum  term  of  imprisonment  of  at  least  four  years.  Under  Article  7(3),  unlawful 
disclosure must be punishable by a maximum term of imprisonment of at least two years. 

Compliance with Article 7(1) was measured against:  

i. 
ii. 

the level of sanctions of similar criminal offences; 
other types of offences in the respective national law that provide for the same level 
of sanctions. 

All  Member  States  provide  for  imprisonment  for  market  abuse  offences.  The  highest 
maximum term of imprisonment was 10 years. One Member State was found to be in breach 
of its obligation under Article 7(2) because the minimum maximum sanction was below four 
years for insider dealing and market  manipulation.  Another Member State applied different 
sanctions to Article 3(3)(d) on the one hand and Article 3(3)(a), (b) and (c) on the other.  

3.6.  Legal persons (Articles 8 and 9) 

3.6.1.  Liability of legal persons (Article 8) 

Article 8(1) sets out the obligation for Member States to ensure that legal persons can be held 
liable for market abuse offences, if committed for their benefit by persons holding particular 
responsibilities within the legal entity, namely: 

a)  power of representation of the legal person; 
b)  authority to take decisions on behalf of the legal person; or 
c)  authority to exercise control within the legal person. 

While the transposition of Article 8 varies within the limits set by the Directive, all Member 
States have schemes in place ensuring that legal persons can be held liable for market abuse 
offences. In line with Recital 18, liability can be criminal or non-criminal.  

A  few  Member  States  do  not  provide  for  criminal  liability  for  legal  persons  in  their  legal 
systems  but  have  established  administrative  and  civil  sanctions  instead.  The  majority  of 
Member States, however, have introduced criminal liability regimes for legal persons.  

Article 8(2) extends liability of the legal person to cases where the market abuse offence was 
made  possible  by  a  lack  of  control  or  supervision  by  one  of  these  persons.  Two  Member 
States have not yet correctly transposed this provision.  

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Article  8(3)  stipulates  that  criminal  liability  of  a  legal  person  shall  not  exclude  criminal 
liability  of  a  natural  person  for  a  market  abuse  offence.  This  was  the  case  in  all  Member 
States. 

3.6.2.  Sanctions for legal persons (Article 9) 

Article 9 provides that Member States shall establish effective, proportionate and dissuasive 
sanctions for legal persons, including criminal or non-criminal fines. Member States may also 
provide  for  other  non-pecuniary  sanctions.  In  points  (a)  to  (e),  non-exhaustive  options  for 
such additional sanctions are listed. 

Where – as in most Member States  – the level  of fines was not linked to the benefit of the 
crime or to the turnover of the legal entity, and where the level of fines was considered to be 
low, the optional sanctions were taken into account. Where further cumulative sanctions (e.g. 
exclusion from entitlement to public benefits, judicial winding-up etc.) other than fines were 
provided for in the respective national law, the sanction system in that Member State was – in 
principle – considered to be in conformity with the requirements of the Directive. 

Against these criteria, all Member States have transposed Article 9 satisfactorily, even though 
the available fines  were  sometimes relatively low. All  Member States have  also  introduced 
sanctions other than fines for legal persons. Among the options provided for in the Directive, 
temporary  or  permanent  disqualification  from  the  practice  of  commercial  activities  and 
judicial winding-up are the preferred options. 

3.7.  Jurisdiction (Article 10) 

Article  10(1)  obliges  Member  States  to  establish  jurisdiction  over  market  abuse  offences 
according to:  

a)  the principle of territoriality (offences committed in whole or in part on the territory 

of the Member State); and 

b)  the  active  personality  principle  (offences  committed  by  a  national  of  the  Member 

State). 

All Member States have established the principle of territoriality as set out in Article 10(1)(a) 
by explicit general provisions that criminal offences committed in whole on their territory fall 
under their jurisdiction. Most Member States’ national law also contains explicit provisions 
extending jurisdiction to offences committed ‘in part’ on national territory. In other Member 
States,  not  distinguishing  between  ‘whole’  or  ‘part’,  coverage  of  both  alternatives  could  be 
inferred. In one Member State, this results from the jurisprudence. 

Likewise,  all  Member  States  have  correctly  transposed  the  active  personality  principle  as  a 
basis  for  establishing  jurisdiction,  as  set  out  in  Article  10(1)(b).  Generally,  Member  States 
require the offender to be a national at the time of the offence being committed.  

A large number of Member States has made use of the options in the Directive to extend their 
jurisdiction. Five Member States opted to extend jurisdiction for offences committed against 
one of its nationals (passive personality principle). Fourteen Member States chose to use the 
option  under  Article  10(2)(a)  on  jurisdiction  over  habitual  residents;  six  apply  the  option 

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under Article 10(2)(b) on jurisdiction where the offence has been committed for the benefit of 
a legal person established in its territory; and fourteen  do not require dual criminality in case 
of offences committed abroad by their nationals.  

4.  NEED FOR AMENDING THE DIRECTIVE 

Article 12 requires the Commission not only to assess the transposition of the Directive but 
also, if necessary, the need to amend it, including with regard to the interpretation of serious 
cases, the level of sanctions and the optional elements referred to in the Directive (see below 
section 5). 

4.1.  Interpretation of serious cases 

The  Directive  contains  non-exhaustive  indications  as  to  which  cases  should  be  considered 
‘serious’.  These  criteria  could  be  used  in  individual  cases  to  determine  whether  a  concrete 
case is a  ‘serious’ one.  According to Recital  11, insider dealing and unlawful  disclosure of 
inside information should be deemed to be serious in cases where the impact on the integrity 
of  the  market,  the  actual  or  potential  profit  derived  or  loss  avoided,  the  level  of  damage 
caused to  the market,  or the overall value of the financial instruments  traded is  high. Other 
circumstances that might be taken into account are involvement in a criminal organisation or 
recidivism.  

Similarly, market manipulation should be deemed to be serious in cases where, inter alia, the 
level of alteration of the value of the financial instrument or spot commodity contract, or the 
amount of funds originally used is high or where the manipulation is committed by a person 
employed  or  working  in  the  financial  sector  or  in  a  supervisory  or  regulatory  authority 
(Recital 12). 

Member States have taken some guidance from these recitals. However, in most cases, they 
have  taken  into  account  only  one  or  some  of  the  criteria  mentioned,  e.g.  the  value  of  the 
financial  instruments  traded.  During  informal  contacts,  several  Member  States  stressed  the 
non-binding nature of the recitals. Many Member States have chosen to abstractly limit either 
the definition of the offence or the sanctions to serious cases only. 

4.2.  Level of sanctions 

There were very few compliance issues with regard to the level of sanctions. Only in a single 
Member State, the minimum maximum sanction for insider dealing and market manipulation 
was below four years. Often, the upper limit for imprisonment was higher than the four and 
two years, resprectively, provided for in the Directive. 

4.3.  Optional elements 

With the exception of jurisdiction (see 3.7), relatively few Member States have implemented 
the optional elements of the Directive. Even though Recital 21 explicitly states that Member 
States may provide that market manipulation committed recklessly or by serious negligence 

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constitutes  a  criminal  offence,  many  Member  States  seem  to  have  doubts  whether  the 
offences at issue may in fact be committed without intent. Nonetheless, in one Member State, 
negligent  behaviour  is  punishable  where  a  person  ought  to  have  known  that  information  is 
inside information or ought to know that a behaviour is based on inside information; in one, 
while  only  intentional  conduct  is  considered  a  crime,  negligent  behaviour  is  considered  a 
misdemeanour;  in  another,  the  ordinary  offences  are  also  criminalised  in  case  of  gross 
negligence. In threee Member States, negligent actions are generally criminalised. 

In some other instances, Member States have also gone beyond the minimum requirements of 
the  Directive.  These  relate  mainly  to  the  scope  of  the  market  manipulation  offence,  the 
sanctions for natural persons, and the criminalisation of market abuse offences regardless of 
whether they are serious or not. Indeed, only two Member States have not gone beyond the 
Directive (‘gold plating’) in one way or the other. 

5.  CONCLUSIONS 

The Directive was introduced with a view to reinforcing the integrity of financial markets and 
to  enhancing  investor  protection  and  trust  in  those  markets.  Overall,  the  Directive  provides 
added  value  by  buttressing  these  goals  through  criminal  law  and  by  ensuring  the  effective 
implemenation of the Regulation for at least serious cases of market abuse offences. 

With  the  exception  of  Article  5  (market  manipulation),  the  large  majority  of  the  Member 
States  has  correctly  transposed  the  provisions  of  the  Directive  on  criminalisation  of  market 
abuse offences, on criminal penalties and the liability of legal persons. For some articles, like 
the provisions on jurisdiction, no transposition issues were found at all. With regard to market 
manipulation,  it  was  usually  the  element  of  manipulation  through  ‘any  other  behaviour’ 
and/or ‘relating to spot commodity contracts’ that was not covered in the national legislation.  

The  assessment  shows  that  the  application  of  the  Directive  could  still  be  improved:  while 
most  of  the  Directive’s  provisions  have  each  been  transposed  by  a  large  majority  of  the 
Member  States,  in  total  11  Member  States  had  transposition  issues  with  one  or  several 
provisions, as indicated in the previous sections.  

The Commission will continue to assess Member States' compliance with the Directive and 
will take every appropriate measure to ensure conformity with its provisions throughout the 
European Union. 

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