Banking criminal law and capital market criminal law

The recent bank crisis has led to an increased interest by prosecution authorities concerning banks as well as their senior management.

The granting of credits is necessarily fraught with risk because these credit grants are based on future expectations which can in retrospective turn out to be incorrect. In case of credits defaults or similar losses, authorities examine more and more whether the initial decision complied with all legal information procurement- and risk consideration duties. Consequently criminal investigations, which imply a significant risk potential, could be initiated against board members and the supervisory board based on the claim of breach of trust.

High regulatory density and complexity within banking and the capital markets

Banking and the capital market are further regulated by a multitude of laws and regulations. These regulations are highly complex within their subareas and the contempt of such is extensively sanctioned with penal provisions and misdemeanours. Further within the agency for Financial Services Supervision (BaFin) there exists a specialized agency for monitoring these specifications, which are tightly collaborating with the law enforcement agency. A classic area of this monitoring is the supervision of the stock market in order to uncover so called insider trading, which refers to offenders unlawfully utilizing a temporal information advantage in order to realize profits within the market. BaFin’s area of responsibilities outreaches this area and also includes the surveillance of the compliance to all duties which result from the KWG, the WpHG or the GwG.

Due to the regulations’ complexity in this area, the defence has the chance to weaken the claims with lawfully sustained facts at an early stage of the proceeding and thus reach its suspension. ECKSTEIN & KOLLEGEN consult banks and other financial services providers as well as individuals who are, due to their occupational activities, confronted with criminal charges.