Infringements of the prohibition of market manipulation committed before 3 July 2016 that have not been finally disposed of also continue to be punishable. Under section 137 of the WpHG, the provisions in force at the date of the infringement continue to apply. For legacy cases, these are the provisions governing the prohibition of market manipulation under the old version of section 20a of the WpHG and their punishability under the old version of sections 38 and 39 of the WpHG.

The revision of sections 38 (3) no. 1 and 39 (3d) no. 2 of the WpHG by 1. FiMaNoG effective 2 July 2016 did not result in any gap in punishability. The revised rules governing criminal penalties and administrative fines are what is known as “Strafblankette” (a German legal concept of criminal norms that contain the punishment but do not described the prohibited or sanctioned act), which refer to the relevant MAR provisions in the version of 16 April 2014 by means of a static cross-reference. The references to the provisions of the MAR meant that they were already deemed to be applicable by the federal legislator before their direct applicability from 2 July 2016. Such static cross-references are constitutionally unobjectionable and also do not breach the requirement for certainty, as both the referring norms and the benchmarks were properly promulgated and it was easy for anybody to see which conduct was prohibited and punishable by a criminal penalty or an administrative fine.

This interpretation was also expressly confirmed by the Federal Court of Justice (BGH)² and the Federal Constitutional Court (BVerfG)³.

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