Regulating Financial Markets under uncertainty: the EU approach

• Autores: Heikki Marjosola
• Localización: European law review, ISSN 0307-5400, Nº 3, 2014, págs. 338-361
• Idioma: inglés
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• Resumen

  • This article assesses the European Union's post-crisis approach to regulating financial markets. Elasticity of financial markets forces rule-makers to make choices under uncertainty as to not only how financial markets will evolve, but also how regulated actors will respond to the measures adopted. Regulating highly complex and dynamic systems such as financial markets requires flexibility and adaptability which traditional regulatory techniques and instruments often lack. The European System of Financial Supervision, set up after the 2008 financial crisis, has taken a leap towards further harmonisation of rules and vertical consolidation of powers. To avoid the risks of stagnation and rigidity, a change in the overall mode of governance is needed. This article presents two short cases, one dealing with the modified disclosure regime of the revised Transparency Directive and the other with implementation of the Alternative Investment Funds Directive, in order to examine how uniformity can be pursued without the corresponding loss of flexibility. The case studies demonstrate how the techniques used by the European Securities Markets Authority (ESMA) and the Commission, which involve both formal and informal implementing measures, utilise the procedural flexibility of the post-Lisbon EU rule-making. However, more flexible EU legislation is also needed because any system of delegation is redundant without enabling legislative acts that surrender meaningful normative authority to sufficiently independent regulators. The article also discusses the ambiguous limits of the system's flexibility in constitutional terms and addresses certain trade-offs and risks of the emerging mode of governance.