The ne bis in idem principle in the european sanctioning law of the securities market

Abstract

In the last few years, the European Union law has witnessed the sourcing of a common sanctioning administrative law to be enforced not by the Union Institution, but by the member States. This novelty comes from the necessity of raising sanctions on the grounds of breaches of substantive rules to assure the consistency of applicable regimes and the avoidance of regulatory arbitrage. Besides, it is complemented with a series of principles laid down by the ECHR and ECJ case law, searching, instead, to assure the fundamental rights of the person involved. Both sides subdue the Union Law to a tension when deciding whether stressing a greater protection of procedural guaranties or the efficiency of the relevant law, which can be found in all the juridical solutions adopted, sometimes a bit conflicting. In these lines, in addition to account for this process, we stop in one of the most representative principles of this tension, as is the prohibition of double jeopardy. It brings together the two exposed lines, which will determine a cautious approach by Union legislation, and a conflict between the ECHR and the ECJ case law, the latter closer to the provisions of national law aiming to reinforce the punishment to infringing conducts. This disparity, together with that of national constitutional traditions, has marked the approximation of the member States, which will also be discussed, and which has not achieved a homogeneous response to the question.