Can Member States in their national law provide an option to impose higher penalties for legal persons?
Article 66 (2)(c) and Article 67(2)(e) of Directive 2013/36/EU (CRD) stipulate administrative pecuniary penalties of up to 10% of the total annual net turnover that during crisis in some cases can be negative. Considering the aforementioned there can be cases when no pecuniary penalty can be imposed. However the 1st paragraph of Article 66(2) and 67(2) of the CRD states that these are the minimum penalties competent authorities should be able to impose. In addition maximum amount of administrative pecuniary penalties for a natural person is up to EUR 5 million.
The introductory wording of Article 66(2) of Directive 2013/36/EU (CRD) and recital (41) of the CRD make it clear that Member States have the discretion to provide, in their national legislation, for additional administrative penalties or measures and higher levels of administrative pecuniary penalties than those referred to in Article 66(2).
This question goes beyond matters of consistent and effective application of the regulatory framework. A Directorate General of the Commission (Directorate General for Internal Market and Services) has prepared the answer, albeit that only the Court of Justice of the European Union can provide definitive interpretations of EU legislation. This is an unofficial opinion of that Directorate General, which the European Banking Authority publishes on its behalf. The answers are not binding on the European Commission as an institution. You should be aware that the European Commission could adopt a position different from the one expressed in such Q&As, for instance in infringement proceedings or after a detailed examination of a specific case or on the basis of any new legal or factual elements that may have been brought to its attention.
Update 26.03.2021: This Q&A has not yet been reviewed by the European Commission in the light of the changes introduced to Directive 2013/36/EU (CRD).