Crossings, also known as self-dealing or wash trades, are transactions where there is no change of beneficial owner.
In the case of a crossing on a stock exchange, a participant in the trade for a transaction is simultaneously the buyer and seller of a financial instrument, meaning that there is no change of beneficial owner and therefore constitutes a fictitious transaction.
Distortions may occur on a trading venue with regard to trading in the affected financial instrument as a result of a crossing.
All transactions, or buy and sell orders manipulate the market that give off or could give off “false or misleading signals”, or through which an “abnormal or artificial” price level is achieved.
A crossing may constitute the offence of market manipulation pursuant to Article 154 para. 1 no. 3 BörseG 2018 in conjunction with Article 12 MAR and is forbidden under Article 15 of the Market Abuse Regulation throughout the EU, unless there were legitimate reasons for it, and no breach of accepted market practice had occurred.
When placing buy and sell orders it is necessary, among other things, to ensure that:
- buy and sell orders that are placed in close proximity to one another do not have crossed order limits (e.g. identical limits or cross orders in combination with the “best” order code) that might lead to their reciprocal execution on the stock exchange. attention is also paid in such cases to the average trading volume of the security. In the case of more illiquid securities, the chance increases that the investor’s order will be executed against themselves where cross orders are made.
- you do not place any cross orders after the close of trading on the exchange that could result in self-dealing occurring in the opening auction on the following trading day.
- you check in advance whether a new securities order (e.g. a buy order) might under certain circumstances be executed against an order that was given at an earlier point in time, but had not yet been executed for the same security (e.g. a sell order). In this context you should also consider stop orders that have not yet been executed but might be cross orders.
In transposing the provisions set out in the Market Abuse Regulation or the Market Abuse Directive, depending on which criteria are met, market manipulation shall either be punished through administrative penal proceedings or through criminal proceedings in court.
Market manipulation is prosecuted as an administrative offence pursuant to Article 154 para. 1 no. 3 BörseG 2018 in conjunction with Article 15 MAR and may be punished by the Financial Market Authority with a fine of up to Euro 5 000 000 or up to three times the amount gained by the breach, including an avoided loss, where such a gain is able to be determined. In addition any realised financial benefit is to be declared as forfeited. Within the framework regarding the competence of the courts pursuant to Article 164 BörseG 2018, custodial penalties of between six months up to five years may be imposed.
In any case, i.e. regardless of whether courts are competent or administrative penal law, the legal person may be held to account (up to EUR 15 million or 15% of the net total annual turnover).