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European Capital Markets Law
Rüdiger Veil, Rüdiger Veil
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eBook - ePub
European Capital Markets Law
Rüdiger Veil, Rüdiger Veil
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About This Book
"The richness, clarity and nuances of the structure and methodology followed by the contributors make the book a very valuable tool for students... seeking to obtain a general understanding of the market and how it is regulated." – Ligia Catherine Arias Barrera, Banking & Finance Law Review The fully updated edition of this user-friendly textbook continues to systematise the European law governing capital markets and examines the underlying concepts from a broadly interdisciplinary perspective. The 3rd edition deals with 3 central developments: the project of the capital markets union; sustainable finance; and the further digitalisation of financial instruments and securities markets. The 1st chapter deals with the foundations of capital markets law in Europe, the 2nd explains the basics, and the 3rd examines the regime on market abuse. Chapter 4 explores the disclosure system and chapter 5 short-selling and high-frequency trading. The role of intermediaries, such as financial analysts, rating agencies, and proxy advisers, is described in chapter 6. Chapter 7 explains compliance and corporate governance in investment firms and chapter 8 illustrates the regulation of benchmarks. Finally, chapter 9 deals with public takeovers. Throughout the book emphasis is placed on legal practice, and frequent reference is made to the key decisions of supervisory authorities and courts. This is essential reading for students involved in the study of capital markets law and financial law.
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1
Foundations of Capital Markets Legislature in Europe
§ 1
History
Bibliography
Anschütz, David H., Regelungskonzepte im neuen europäischen Verbriefungsrecht. Kapitalmarktregulierung zur Wiederherstellung von Vertrauen in Verbriefungen (2020); Armour, John and Ringe, Wolf-Georg, European Company Law 1999–2010: Renaissance and Crisis, 48 CMLRev. (2011), 125–174; Avgouleas, Emilios, The Global Financial Crisis and the Disclosure Paradigm in European Financial Regulation: The Case for Reform, 6 ECFR (2009), 440–475; Bréhier, Bertrand and Pailler, Pauline, La régulation du marché des materières premières, Bull. Joly Bourse (2012), 122–128; Casper, Matthias, Der Compliancebeauftragte – unternehmensinternes Aktienamt, Unternehmensbeauftragter oder einfacher Angestellter, in: Bitter, Georg et al. (eds.), Festschrift für Karsten Schmidt zum 70. Geburtstag (2009), 199–216; Edwards, Vanessa, EC Company Law (1999); Ferran, Eilís and Goodhart, Charles A., Regulating Financial Services and Markets in the 21st Century (2001); Ferran, Eilís, Building an EU Securities Market (2004); Ferran, Eilís et al. (eds.), The Regulatory Aftermath of the Global Financial Crisis (2012); G30, Financial Reform: A Framework for Financial Stability (2009); Heinemann, Friedrich, The Benefits of Creating an Integrated EU Market for Investment Funds, 19 ZEW Economic Studies (2003), 89–93; Horn, Norbert, Europäisches Finanzmarktrecht (2003); Lannoo, Karel, Emerging Framework for Disclosure in the EU, 3 J. Corp. L. Stud. (2003), 329–358; Moloney, Niamh, Confidence and Competence: The Conundrum of EC Capital Markets Law, 4 J. Corp. L. Stud. (2004), 1–50; Moloney, Niamh, Institutional Governance and Capital Markets Union: Incrementalism or a ‘Big Bang’?, 13 ECFR (2016), 376–423; Panasar, Raj and Boeckman, Philip (eds.), European Securities Law, 2nd edn. (2014); Papadopoulos, Thomas, EU Law and the Harmonization of Takeovers in the Internal Market (2010); Parmentier, Miriam, Capital Markets Union – One Year On From the Action Plan, 14 ECFR (2017), 242–251; Ringe, Wolf-Georg, Capital Markets Union for Europe – A Political Message to the UK, 9 LFMR (2015), 5–7; Rontchevsky, Nicolas, L’harmonisation des sanctions pénales, Bull. Joly Bourse (2012), 139–142; Sasso, Lorenzo and Kost de Sevres, Nicolette, The New European Financial Markets Legal Framework: A Real Improvement? An analysis of Financial Law and Governance in European Capital Markets from a micro and macro economic perspective, 7 CMLJ (2012), 30–54; Schammo, Pierre, Market Building and the Capital Markets Union: Addressing Information Barriers in the SME Funding Market, 14 ECFR (2017), 271–313; Segarkis, Konstantinos, Le renforcement des pouvoirs des autorités compétentes, Bull. Joly Bourse (2012), 118–121; Skeel, David A., The New Financial Deal: Understanding the Dodd-Frank Act and its (Unintended) Consequences (2010); Siems, Mathias M., The Foundations of Securities Law, 20 EBLR (2009), 141–171; Veil, Rüdiger and Lerch, Marcus P., Auf dem Weg zu einem Europäischen Finanzmarktrecht: die Vorschläge der Kommission zur Neuregelung der Märkte für Finanzinstrumente, 66 WM (2012), 1557–1565 (Part I); Veil, Rüdiger, Europäische Kapitalmarktunion – Verordnungsgesetzgebung, Instrumente der europäischen Marktaufsicht und die Idee eines „Single Rulebook“, 43 ZGR (2014), 544–607; Veil, Rüdiger, Kapitalmarktzugang für Wachstumsunternehmen (2016); Wheatley, Martin, Review of LIBOR: final report (2012).
I.Introduction
1The former Treaty establishing the European Community (EC) did not contain any provisions regarding a European capital markets law. It did not take long after the foundation of the EC, however, for the European Commission and the Council of the European Union, seeking to fulfil the aim of an internal market, to claim to be competent for the harmonisation of the national laws. The first legislation was nevertheless not enacted until 20 years later. Its main purpose was to coordinate stock exchange and prospectus law of the Member States (phase 1). This was followed by a wide-ranging harmonisation of securities trading law, first by means of general provisions in directives, which gave Member States a wide scope for implementation (phase 2), and then by means of detailed provisions in directives (phase 3). The financial market crisis led to fundamental reforms of the supervisory architecture and a far-reaching unification of EU securities regulation (phase 4). This was followed by the Capital Markets Union project (phase 5). Its main aim is to promote growth and employment in the EU. This chapter describes the five phases of regulation and points out that European capital markets law has developed into an independent field of law.
II.Segré Report (1966)
2The development of a European Capital Markets Law commenced in 1966, when a group of independent experts,1 commissioned by the EEC Commission, published its report on a European capital market. The Committee, chaired by Claudio Segré, was ‘to establish and specify what needs to be done to develop a European capital market, having regard […] to the aims of the Treaty of Rome’.2 The 350-page report, named after the committee’s chair, brought to light significant structural problems on the national capital markets and criticised the disequilibrium between availability of capital and demand as well as limited markets. It recommended a variety of measures as solutions to these problems. The report emphasised the importance of integrating the securities markets and harmonising the access to the European capital market.
3The recommendations on ‘structure of equity markets’3 and the ‘conditions for the development of a capital market integrated at European level’4 occupied an important place in the report. It found clear words in stating that disclosure of information to the public would be one of the main aims.5 An information policy’ would have to consider three aspects: firstly ‘campaigns to familiarize the public with security investment and stock-exchange machinery’; secondly ‘a permanent flow of information on the operations of companies in addition to the annual publication of their accounts’; and thirdly ‘especially comprehensive information whenever an appeal is made for the public’s savings—that is, on the occasion of a security issue or the introduction of securities on a stock exchange’.6
4While the Segré Report further contained information regarding legal enforcement, the Committee’s recommendations on this point remained vague. The report regarded an external information control as necessary in order to enforce observation of certain ‘minimum requirements concerning the scope and quality of information’,7 for example. It then, however, went no further than to demand that the systems for external information control be developed and harmonised. So far control had been exercised by banks and stock exchange authorities and only in some EEC countries by independent administrative bodies. The Committee did at least formulate the solution of ‘an agency at Community level, to be competent for issues floated within the territory of the Community and to be endowed with powers similar to those of the Securities and Exchange Commission in the United States, the Banking Commission in Belgium or the Bank Control Commissariat in Luxembourg’.8 However, it would take 43 years for this aim to be accomplished.
III.Phase 1: Coordination of Stock Exchange and Prospectus Laws (1979–1982)
5The Segré Report contained detailed suggestions on the introduction of securities on the national stock markets and their trading.9 It even presented a model prospectus adapted to the specific circumstances of different categories of securities and issuers.10 In view of this, it is not surprising that the first legislative measures concerned the law on stock exchanges and prospectuses. However, it took thirteen years before legislature enacted the first laws.
6The first steps the Council took on the way to a harmonisation of the Member States’ statutory provisions were Directive 79/279/EEC11 on securities admitted to official stock exchange listing, Directive 80/390/EEC12 on the requirements...