Proportionality as a Guiding Principle for Administrative Sanctions: Quantitative Criteria, Qualitative Assessments and Discretion in the EBU and in the ESFS

As far as administrative sanctions are concerned, the principle of proportionality has commonly been applied with a focus on the proportionality to the seriousness of the breach of a certain rule, as emerges from the long-standing case law in the area of competition. However, the main focus on the proportion to the seriousness of the breach does not exclude that also other elements are to be taken into account in assessing the proportionality of the sanctions. According to the ECB Guide for sanctions, even though the proportion to the breach is the main factor to be considered, also other qualitative criteria are to be taken into account. As a result, in the EBU there is broad discretion in determining sanctions. On the contrary, in the ESFS the use of mathematical methodology exclusively connected with the two elements of the breach and of the misconduct constrain the discretion of the EU financial agency ESMA in a much stricter sense.