Article from Issuer Guidelines published by the Federal Financial Supervisory Authority
There is only a case of punishable market manipulation under sections 120 (15) no. 2 and 119 (1) no. 1 of the WpHG if the responsible person acts intentionally. Conditional intent (Eventualvorsatz) is also sufficient. Conditional intent is deemed to exist if the responsible person believes that committing the prohibited act and completing the offence are possible and approves this. “Approving” is deemed to occure where the person committing the offence has resigned him- or herself to the possible completion of the offence, even if he or she does not welcome it. To assume intent in the case of punishable market manipulation, it is therefore sufficient if the responsible person believes it is possible that he or she will make false or misleading statements or will send false or misleading signals because information is withheld, and also believes that a possible consequence will be an influence on prices, but accepts this consequence and still commits the offence. If the intentional manipulative act does not result in any actual influence on the stock exchange price, there may nevertheless be a criminal offence in the form of attempted market manipulation. Attempting to manipulate the markets is also punishable (section 119 (4) of the WpHG).
Intentional cases of manipulation that have influenced the stock exchange or market price are criminal offences that are punishable by imprisonment of up to five years or a fine (section 119 (1) no. 1 of the WpHG).
If the person committing the offence acts on a commercial scale or as part of organised crime, or in the course of exercising their professional duties, for example for an investment services enterprise, the crime of market manipulation is punishable by imprisonment of between one and ten years (section 119 (5) of the WpHG). In less serious cases, the punishment is imprisonment of between six months and five years (section 119 (6) of the WpHG).
Fact patterns that offer indications of an infringement of the prohibition of market manipulation will be investigated by BaFin and, if there is any suspicion of punishable market manipulation, reported to the competent public prosecutor’s office in accordance with section 11 sentence 1 of the WpHG.
