Article 131 — Fines

Financial servicesLevel 1RegulationMiCAStage: AdoptedVerifiedOfficial source

1.EBA shall adopt a decision imposing a fine in accordance with paragraph 3 or 4 of this Article where, in accordance with Article 134(8), it finds that:

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131(1)(a)

(a)an issuer of a significant asset-referenced token or a member of its management body has, intentionally or negligently, committed an infringement as listed in Annex V;

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131(1)(b)

(b)an issuer of a significant e-money token or a member of its management body has, intentionally or negligently, committed an infringement as listed in Annex VI.

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An infringement shall be considered to have been committed intentionally if EBA finds objective factors which demonstrate that such an issuer or a member of its management body acted deliberately to commit the infringement.

131(2)

2.When adopting a decision as referred to in paragraph 1, EBA shall take into account the nature and seriousness of the infringement, having regard to:

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131(2)(a)

(a)the duration and frequency of the infringement;

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131(2)(b)

(b)whether financial crime has been occasioned, facilitated or is otherwise attributable to the infringement;

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131(2)(c)

(c)whether the infringement has revealed serious or systemic weaknesses in the issuer of the significant asset-referenced token’s or in the issuer of the significant e-money token’s procedures, policies and risk management measures;

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131(2)(d)

(d)whether the infringement has been committed intentionally or negligently;

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131(2)(e)

(e)the degree of responsibility of the issuer of the significant asset-referenced token or the issuer of the significant e-money token responsible for the infringement;

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131(2)(f)

(f)the financial strength of the issuer of the significant asset-referenced token, or of the issuer of the significant e-money token, responsible for the infringement, as indicated by the total turnover of the responsible legal person or the annual income and net assets of the responsible natural person;

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131(2)(g)

(g)the impact of the infringement on the interests of holders of significant asset-referenced tokens or significant e-money tokens;

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131(2)(h)

(h)the importance of the profits gained, losses avoided by the issuer of the significant asset-referenced token or the significant e-money token responsible for the infringement or the losses for third parties caused by the infringement, insofar as they can be determined;

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131(2)(i)

(i)the level of cooperation of the issuer of the significant asset-referenced token or of the issuer of the significant e-money token responsible for the infringement with EBA, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person;

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131(2)(j)

(j)previous infringements by the issuer of the significant asset-referenced token or by the issuer of the significant e-money token responsible for the infringement;

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131(2)(k)

(k)measures taken by the issuer of the significant asset-referenced token or by the issuer of the significant e-money token after the infringement to prevent the repetition of such an infringement.

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131(3)

3.For issuers of significant asset-referenced tokens, the maximum amount of the fine referred to in paragraph 1 shall be up to 12,5 % of its annual turnover in the preceding business year, or twice the amount or profits gained or losses avoided because of the infringement where those can be determined.

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131(4)

4.For issuers of significant e-money tokens, the maximum amount of the fine referred to in paragraph 1 shall be up to 10 % of its annual turnover in the preceding business year, or twice the amount or profits gained or losses avoided because of the infringement where those can be determined.

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