Banking and Capital Market Criminal Law
Capital market criminal law is booming. Legislators at both German and European levels are consistently resorting to criminal law to deal with the banking and financial crisis and intervening in economic processes through sanctions. With these permanent changes in capital market criminal law standards comes uncertainty among the affected employees at banks, companies, and financial advisors. This is constitutionally unacceptable, but seems to be desired by the legislators: No one should think themselves safe. The number of investigations on suspicion of investment fraud, insider trading, market manipulation, or violation of the German Banking Act is increasing dynamically. The public prosecutor's offices are, in turn, "carried to the hunt" by the supervisory authorities.
Investigations on suspicion of capital market crimes are often the result of an investigation that has already been completed and is sometimes of a divergent nature. Both the Federal Financial Supervisory Authority (BaFin) and the stock exchange supervisory authorities have extensive rights to information access. Such requests for information are administrative acts that can be executed immediately and for which an objection has no effect. The information can be explosive in terms of criminal law for employees, or have an impact on the company in terms of fines and sanctions. In later criminal proceedings, the information is used as evidence. Ideally, our criminal law expertise will be used preventively. In practice, however, we are often retained only after the preliminary proceedings have been initiated. Here, as elsewhere, the following applies: the earlier the defender is called in, the greater the chances of concluding the criminal proceedings with the desired result.